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Parliamentary Sovereignty: Strengths, Reforms, and Legal Challenges

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Institutional Affiliation
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Critically Examine Whether Parliamentary Sovereignty Makes the UK Constitution

Uniquely Flexible and Strong or Whether It Should Be Modified to Give Priority to
the Rule of Law, the Separation of Powers, and Respect for Human Rights
Parliamentary sovereignty refers to an essential part of the constitutional
foundation of the United Kingdom. As contained by A.V. Dicey, this postulates that
Parliament has unlimited supremacy in creating laws or abrogation and cannot be
challenged by any institution, including the courts. This essay will critically examine
whether this principle makes the UK constitution flexible and robust or if change is
needed, and it will focus more on the rule of law, the separation of powers, and human
rights.
The Flexibility and Strength of Parliamentary Sovereignty
Another significant benefit of the doctrine of parliamentary sovereignty is its
flexibility. As for the UK Parliament, it has no legislative authority limit through a written
constitution, which is better placed to address the change in social, economic, and other
political situations most competently. One example of this adaptability has been shown
during Brexit, where Parliament approved significant changes to the legal order
regarding the UK’s relationship with the European Union through the European Union
(Withdrawal) Act 20181.
This capacity has also been apparent in the ability of the country to make sharp
legislative changes in case of a national emergency. For example, the Coronavirus Act
of 2020 conferred immense power on the government to control the health crisis
throughout the COVID-19 outbreak2. All such maneuvering is possible due to one of the
critical assets of the UK’s constitutional structure – flexibility, which allows for
addressing the present needs and issues while not hampered by the rigid constitutional
provisions3.

Criticisms of Parliamentary Sovereignty

1
Eleftheriadis, Pavlos. "Parliamentary sovereignty and the constitution." Canadian Journal of Law &
Jurisprudence 22, no. 2 (2009): 267-290.
2
Barnett, Hilaire. Constitutional and administrative law. Routledge, 2019.
3
Jacobs, Marjorie G. "A New Approach to Departmental Records." Australian Journal of Public
Administration 14, no. 2 (1955): 113-123.
 3

The concept of parliamentary sovereignty has faced criticisms, and its criticisms
center on the following, namely, how it threatens the basic principles of the Rule of Law
and Separation of Powers. Focusing power in Parliament has the potential to ensure
that occasionally, laws that may be inoperable under principles of law are enacted. This
has given room for the need for proper accountability of the parliamentary power, which
poses the question of whether arbitrary legislation is possible4.
The then constitutional scholar Lord Hailsham was of similar opinion when he
referred to it as ‘elective dictatorship,’ where the government with a majority in the
House can pass any laws as wished5. For instance, in Jackson v Attorney General
[2005] UKHL 56, the judiciary has tried to tackle these issues through the proclamations
of the Rule of Law as part of the Constitution6. But even here, the judiciary's powers to
set the right parliamentary dominance are constrained7.
The Role of the Rule of Law and Its Functions
The Rule of Law refers to the operating principle that actions by the state and the
availability of justice are lawful in any democracy. Its opponents claim that, without
appropriate protection, parliamentary sovereignty threatens these principles. For
instance, the Human Rights Act of 1998 brought into force the European Convention on
Human Rights (ECHR) in the United Kingdom, allowing the courts to assess legislation
enacted by the Parliament for compliance with ECHR human rights. Nevertheless,
Parliament can still legislate contrary to ECHR, as evidenced by the legal case of R
(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 8.
The rule of law, one of the principle elements of constitutional liberalism, means
that laws must be made public and stable, free from arbitrary application of power. In
this regard, the following is a significant challenge: the possibility of Parliament enacting
laws contrary to the entrenched right. While the judiciary can declare incompatibility

4
Young, Alison L. "Parliamentary Sovereignty and the Human Rights Act." (2008): 1-200.
5
Bingham, Tom. The rule of law. Penguin UK, 2011.
6
Jackson v Attorney General [2005] UKHL 56
7
Hutchinson, Allan C. "Indiana Dworkin and Law's Empire." Yale LJ 96 (1986): 637.
8
Craig, Paul. "Comparative Administrative Law and Political Structure." Oxford Journal of Legal Studies
37, no. 4 (2017): 946-965.
 4

under the Human Rights Act, Parliament does not have to change or nullify the act in
question9.
The Separation of Powers
According to Montesquieu, the roles of legislation executing and judging should
be separated so that no branch should assume too much power10. In the UK, Parliament
is controlled by the government, and because of this, there have been discussions
about whether ‘parliamentary sovereignty’ undermines the doctrine of the separation of
powers. R (Evans) v Attorney General [2015] UKSC 21 is a clear example of judicial
involvement evident when the executive works contrary to the law11.
Although the court has civil and political responsibilities of interpreting and
applying the law and legal processes, its authority is subordinate to Parliament’s
authority. This can help when the legislative barriers affect the functioning of judicial
power. This is because the body politic does not possess a codified constitution that
guarantees that parliamentary laws are by the precepts of the Separation of Powers 12.
Human Rights Concerns
The paradigm of parliamentary sovereignty needs to be revised in terms of
human rights protection. Although the Human Rights Act 1998 allows the courts to
declare primary legislation unlawful under the ECHR, such a decision does not oblige
the Parliament to amend the law. This limitation was well illustrated by the Belmarsh
Detainees case of A v Secretary of State for the Home Department [2004] UKHL 56.
While the House of Lords concluded that indefinite detention without trial violates
human rights, he could not strike down that law13.
This has led to concern over the current mechanism for protecting human rights.
Parliamentary accountability is in terms of political responsibility to the electorate;

9
Elliott, Mark, and J. Jowell. "The principle of parliamentary sovereignty in legal, constitutional, and
political perspective." The Changing Constitution 8 (2015): 38.
10
De Montesquieu, Charles. Montesquieu: The spirit of the laws. Cambridge University Press, 1989.
11
Hsu, Ching-Fang. "Jack Beatson. Key Ideas in Law: The Rule of Law and the Separation of Powers.
Hart Publishing, 2021. Pp. 192, i10. 79. ISBN: 9781509938780."
12
Kavanagh, Aileen. Constitutional Review under the UK Human Rights Act. Cambridge University Press,
2009.
13
Elliott, Mark. The constitutional foundations of judicial review. Bloomsbury Publishing, 2001
 5

however, there is no constitutional necessity for it to have human rights as an item on its
legislative priorities14. This has led to demands that the Constitution be changed, that
provision be made for specific rights to be entrenched, and for Parliament not to be able
to make laws repugnant to those rights.
Arguments for Modifying Parliamentary Sovereignty
To respond to these problems, modern legal theorists and lawmakers discuss the
changes in the Constitution and the bringing to a higher level of the Rule of Law, the
Separation of Powers, and human rights. Adopting or enshrining a written constitution
may give more bite to parliamentary sovereignty15. Comparing the UK with systems like
the United States, where the judicial branch enshrines the Constitution into law to
ensure that legislation assorts the American standard, a similar change may quickly
improve the structure's democratization16.
A written constitution may enhance the application of the rule of law by setting a
check on the Parliament and ensuring that rights that belong to every citizen are
safeguarded. Moreover, improving the separation of powers will further strengthen
accountability measures for the executive and the legislative arms of government. It
would also contribute to checking the slide away from judicial independence and
safeguard citizens from possible abuse by the legislative body17.
Counterarguments
Those who do not welcome the change in parliamentary sovereignty point out
that a more robust legal framework may bring increased formalism. Thus, some critics
state that the UK's Constitution is very flexible and allows legislation that could easily be
adapted to the current feel18. Dominated constitutional hibernation will likely obstruct
14
Olowofoyeku, Abimbola A. "R v Secretary of State for Foreign and Commonwealth Affairs, ex parte
World Development Movement: Financial Prudence, Interfering Busybodies." Hart, 2019.
15
Goldsworthy, Jeffrey. The Sovereignty of Parliament: history and philosophy. Oxford University Press,
2001.
16
Schmidt, Susanne K. "No match made in heaven. Parliamentary sovereignty, EU over-
constitutionalization, and Brexit." In The Brexit Policy Fiasco, pp. 131-146. Routledge, 2021.
17
Turpin, Colin, and Adam Tomkins. The British government and the constitution: text and materials.
Cambridge University Press, 2011.
18
Chalmers, Damian, and Adam Tomkins. European Union public law: text and materials. Cambridge
University Press, 2007.
 6

Parliament from modifying laws concerning contemporary societal requirements and

may cause judicial absolutism where the courts interfere in legislation19.
Conclusion
Parliamentary sovereignty is one of the strengths of the UK constitution and a
bone of contention. On the one hand, it offers the most unrestrictive legislative
opportunity; on the other hand, challenges to the Rule of Law, Separation of Powers,
and human rights can be evoked. Sustainable development of democracy requires the
management of these dimensions. A more gradual approach to the reform could involve
the introduction of the enshrined principles or the more distinct separation of powers,
which might reinforce the constitutional structure and, at the same time, retain the
adaptability that the UK law has always known.
Problem-Style Question: Legal Advice to John and Mary Regarding Standing and
Justiciability
Issue
The two legal questions arise: (1) can John and Mary, as Run Together Midlands
(RTM) members, sue the Birmingham City Council for the decision that affected park
access, parking, and lighting? (2) Is the matter of accessible parks and lighting within
the jurisdiction of the courts under the principles of public law?
Rule
Locus standi is the legal requirement embodied in the constitutional provision
that a person has the right to approach the court. Firstly, claimants must be shown to
have sufficient interest in the matter under consideration by the court, and this was
confirmed in R v Inland Revenue Commissioners, ex parte National Federation of Self-
Employed and Small Businesses Ltd [1982] AC 61720. This principle prevents the entry
of unmerited claims while at the same time reporting justice on merited grievances.
Pressure groups have been allowed to intervene in situations where they advance
shared interests, where the above-cited World Development Movement case is a good
example21.

19
Ewing, Keith. "Brexit and parliamentary sovereignty." The Modern Law Review 80, no. 4 (2017): 711-
726.
20
Loughlin, Martin. The British Constitution: a concise introduction. OUP Oxford, 2013.
 7

The principle of justiciability deals with whether a matter is a proper subject for
the determination of the court. As a general rule, it is only acceptable for the courts to
become involved in discretionary policy or budget allocations if there are demonstrable
procedural vices, human rights violations, and statutory compliance. In the R v
Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, the court
also pointed out that the most important reasons for juridical involvement are fairness of
procedure and proportionality22. However, the Equality Act 2010 requires the public
authorities to eliminate unlawful discrimination and to promote equality, thus using EIAs,
as it was in R (on the application of Hurley and Moore) v The Secretary of State for
Business, Innovation and Skills & Ors [2012] EWHC 201 Admin.
There is also a contribution made by human rights law. According to Article 8 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), everyone shall have the right to respect his private and family life,
home, and correspondence23. Such decision-making of the public authority may lead to
the infringement of 3 or more rights and, therefore, is open for judicial review as seen in
Beghal v DPP [2015] UKSC 49. The imbalance between the government’s needs and
human rights was facilitated and restated in the Belmarsh Detainees Case (A v
Secretary of State for the Home Department [2004] UKHL 56) through a legal principle
known as the principle of proportionality24.
Moreover, a legal rationality rule similar to that utilized in the case of Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 suggests that
all decisions must be reasonably possible and should not be beyond the range of
permissible authority of the public authorities. If a decision is presented as legally either
procedurally or substantively irrational, it will be quashed.
Application

21
Johnson, Richard. "The British Constitution by Anthony King." King's Law Journal 19, no. 3 (2008): 637-
642.
22
Goldsworthy, Jeffrey. The Sovereignty of Parliament: history and philosophy. Oxford University Press,
2001
23
Greally, Robert. "Ideologies of Political Constitutionalism." Oxford Journal of Legal Studies (2024):
gqae028.
24
Lord, Hailsham. "Elective Dictatorship." The Richard Dimbleby Lecture, London (1976).
 8

John and Mary, treasurer and secretary of Run Together Midlands (RTM),
respectively, have essential roles in campaigning for increased availability of parks and
other common areas. These make their positions represent the issue and fulfill the
standing requirement in the National Federation of Self-Employed25. This decision is
adverse to RTM’s goal and is clearly in the Council’s interest based on the public
advocacy principles established by World Development Movement Ltd.
They insisted that procedural unfairness was rife because the Council never
implemented an Equity Impact Assessment (EIA) under the Equity Act 2010. EIAs are
helpful because they serve as an essential indicator of which public decisions are likely
to have a disparate impact on protected classes, including women, minorities, and
disabled individuals26. As the court pointed out in R (Hurley and Moore), the lack of a
comprehensive EIA could mean the decision is unlawful. Likewise, in R (Bridges) v
Chief Constable of South Wales Police [2020] EWCA Civ 1058, there was no rationality
in the decision and lack of procedural safeguards rendered the decision unlawful27.
The activities of the Council also touch on the question of procedural admissibility
under Article 8 of the ECHR in terms of proper proportionality28. Closing parks and lack
of lighting mainly affect families, children, and other sensitive persons who might need
to use the park. The case of Beghal v. DPP and Belmarsh Detainees shows that the
public authorities are required to strike a proper balance between the rights of an
individual and the goals of public bodies29. This adds further procedural vices to the
decision made by the Council through their failure to carry out a proportionality analysis.
The principles we got under Wednesbury include the principle of
reasonableness. Public authorities are supposed to be reasonable in their approach to a
decision, and it should be reasoned30. Lack of public and stakeholder consultation
dealing with this erodes the Council’s legitimacy because the general public must
25
Bellamy, Richard. Political constitutionalism: A republican defense of the constitutionality of democracy.
Cambridge University Press, 2007.
26
Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution 8th Ed. Macmillan, 1915.
27
Sales, Philip. "Rationality, Proportionality and the Development of the Law." LQR 129 (2013): 223.
28
Wade, Henry WR. "Sovereignty-Revolution or Evolution?." Law Quarterly Review 112, no. 4 (1996):
558-575.
29
Allan, Trevor RS. The sovereignty of law: freedom, Constitution, and common law. Oxford University
Press, USA, 2013.
 9

participate in decision-making for accountability. Thus, in R v Secretary of State for the

Environment, ex parte Nottinghamshire County Council [1986] AC 240, some principles
of administrative law were stipulated, especially the principles of openness and
rationality in making decisions31.
The justification of the Council for invoking financial reasons for lack of resources
may need to be more convincing.32. A judicial review is possible if a decision was made
because of improper purpose or if it is not supported by reason, and it was established
in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. This paper
ensures that John and Mary can argue that the financial rationale of the Council
infringes on procedural fairness and the equality of individuals in society33.
Conclusion
John and Mary have a viable claim based on standing, given their roles in RTM
and the significant public interest in the matter. The only basis on which the case will be
justifiable is if the court sees it as procedural unfairness, irrationality, or a human rights
matter. For that, they should be ready to present a case in which the decision
discriminates against the minority and violates procedural rules under the Equality Act
2010.

Bibliography
Primary Sources
Case Laws
A v Secretary of State for the Home Department [2004] UKHL 56
Article 8 of the European Convention on Human Rights (ECHR)
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Belmarsh Detainees Case (A v Secretary of State for the Home Department [2004]
UKHL 56)
Equality Act 2010
30
Bradley, Anthony Wilfred, and Keith D. Ewing. Constitutional and administrative law. Vol. 1. Pearson
Education, 2007.
31
Leyland, Peter. The Constitution of the United Kingdom: a contextual analysis. Hart Publishing, 2016.
32
Bogdanor, Vernon. The new British Constitution. Bloomsbury Publishing, 2009.
33
Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution 8th Ed. Macmillan, 1915.
 10

Jackson v Attorney General [2005] UKHL 56

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058
R (Evans) v Attorney General [2015] UKSC 21
R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012]
EWHC 201 (Admin)
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and
Small Businesses Ltd [1982] AC 617
R v Secretary of State for the Environment, ex parte Nottinghamshire County Council
[1986] AC 240
R v Secretary of State for the Environment, ex parte Nottinghamshire County Council
[1986] AC 240
R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26
World Development Movement Ltd v Secretary of State for Foreign and Commonwealth
Affairs [1995] 1 WLR 386
Legislations
Coronavirus Act 2020
Equality Act 2010
European Convention on Human Rights (ECHR), Article 8
European Union (Withdrawal) Act 2018
Human Rights Act 1998
Secondary Sources
Allan, Trevor RS. The sovereignty of law: freedom, Constitution, and common law.
Oxford University Press, USA, 2013.
Barnett, Hilaire. Constitutional and administrative law. Routledge, 2019.
Bellamy, Richard. Political constitutionalism: A republican defense of the
constitutionality of democracy. Cambridge University Press, 2007.
Bingham, Tom. The rule of law. Penguin UK, 2011.
Bogdanor, Vernon. The new British Constitution. Bloomsbury Publishing, 2009.
 11

Bradley, Anthony Wilfred, and Keith D. Ewing. Constitutional and administrative law. Vol.
1. Pearson Education, 2007.
Chalmers, Damian, and Adam Tomkins. European Union public law: text and materials.
Cambridge University Press, 2007.
Craig, Paul. "Comparative Administrative Law and Political Structure." Oxford Journal of
Legal Studies 37, no. 4 (2017): 946-965.
De Montesquieu, Charles. Montesquieu: The spirit of the laws. Cambridge University
Press, 1989.
Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution 8th Ed.
Macmillan, 1915.
Eleftheriadis, Pavlos. "Parliamentary sovereignty and the constitution." Canadian
Journal of Law & Jurisprudence 22, no. 2 (2009): 267-290.
Elliott, Mark, and J. Jowell. "The principle of parliamentary sovereignty in legal,
constitutional, and political perspective." The Changing Constitution 8 (2015): 38.
Elliott, Mark. The constitutional foundations of judicial review. Bloomsbury Publishing,
2001.
Ewing, Keith. "Brexit and parliamentary sovereignty." The Modern Law Review 80, no. 4
(2017): 711-726.
Goldsworthy, Jeffrey. The Sovereignty of Parliament: history and philosophy. Oxford
University Press, 2001.
Greally, Robert. "Ideologies of Political Constitutionalism." Oxford Journal of Legal
Studies (2024): gqae028.
Hsu, Ching-Fang. "Jack Beatson. Key Ideas in Law: The Rule of Law and the
Separation of Powers. Hart Publishing, 2021. Pp. 192, i10. 79. ISBN:
9781509938780."
Hutchinson, Allan C. "Indiana Dworkin and Law's Empire." Yale LJ 96 (1986): 637.
Jacobs, Marjorie G. "A New Approach to Departmental Records." Australian Journal of
Public Administration 14, no. 2 (1955): 113-123.
Johnson, Richard. "The British Constitution by Anthony King." King's Law Journal 19,
no. 3 (2008): 637-642.
 12

Kavanagh, Aileen. Constitutional Review under the UK Human Rights Act. Cambridge
University Press, 2009.
Leyland, Peter. The Constitution of the United Kingdom: a contextual analysis. Hart
Publishing, 2016.
Lord, Hailsham. "Elective Dictatorship." The Richard Dimbleby Lecture, London (1976).
Loughlin, Martin. The British Constitution: a concise introduction. OUP Oxford, 2013.
McLean, Iain. What's wrong with the British Constitution? Oxford University Press, USA,
2010.
Olowofoyeku, Abimbola A. "R v Secretary of State for Foreign and Commonwealth
Affairs, ex parte World Development Movement: Financial Prudence, Interfering
Busybodies." Hart, 2019.
Sales, Philip. "Rationality, Proportionality and the Development of the Law." LQR 129
(2013): 223.
Schmidt, Susanne K. "No match made in heaven. Parliamentary sovereignty, EU over-
constitutionalization, and Brexit." In The Brexit Policy Fiasco, pp. 131-146.
Routledge, 2021.
Turpin, Colin, and Adam Tomkins. The British government and the constitution: text and
materials. Cambridge University Press, 2011.
Wade, Henry WR. "Sovereignty-Revolution or Evolution?." Law Quarterly Review 112,
no. 4 (1996): 558-575.
Young, Alison L. "Parliamentary Sovereignty and the Human Rights Act." (2008): 1-200.