The Rule of Law and the Orthodox Doctrine of Parliamentary Sovereignty are constitutional concepts which were popularised by Albert Venn Dicey, an influential 19th century constitutional lawyer. Therefore, it seems only appropriate to begin this discussion with Dicey’s interpretation. In Dicey’s formulation, Parliamentary Sovereignty is comprised of two aspects, the positive and the negative. The positive side is that Parliament can ‘make or unmake any law’ and the negative aspect is that ‘no court or other body’ is recognised as having the ‘right to override or set aside the legislation of Parliament. ‘The Rule of Law is a chameleon-like notion. Used by different people it may mean radically different things’. From this statement, it is clear that the Rule of Law is much more difficult to define as a constitutional principle than Parliamentary Sovereignty. However, this paper will apply Dicey’s definition. Dicey’s account of the Rule of Law held three points. Firstly, no-one may be punished except for a breach of law. Secondly, the same law should apply to everyone. Thirdly, rights should be protected through the common law. Firstly, this paper is going to identify whether a conflict exists between the two principles. Secondly, this paper is going to assess whether one constitutional principle outweighs another in supremacy. Lastly, this paper will consider whether resolution between the two constitutional principles is possible.
Dicey believed that Parliamentary Sovereignty and the Rule of Law were the fundamental principles of the UK constitution. He held that ‘the sovereignty of Parliament favours the supremacy of the law’ and that they were completely compatible. On the other hand, constitutional expert Vernon Bogdanor believes that “It is clear that there is a conflict between these two constitutional principles, the sovereignty of parliament and the rule of law.” So who is right? Well, Dicey’s interpretation has been criticised for lacking precedential support and it has been argued that, over the years, a conflict between the two principles has arisen. Indeed, the problem stems from the fact that Parliamentary Sovereignty entails Parliament’s ability to make or unmake whatever law without restriction. This necessarily entails that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily. Incompatibly, the Rule of law’s essential aim is to prevent the exercise of arbitrary or tyrannical power. Thus, it cannot be denied that there is a direct contradiction between the two principles. Dicey’s response to this is that the will of Parliament can only be expressed through an act and that these acts are only passed after a formal and deliberate process involving two houses and the Queen. He adds that an act is also subject to judicial interpretation and he argues that Parliament has never attempted (except for the revolution) to exercise executive power. However, this is a weak argument and academics, such as WI Jennings, have challenged Dicey with extremely valid points. Jennings argues that the complex process which Dicey described is not actually at all intricate and that there have been numerous occasions where Parliament has passed a drastic act in one sitting or one day. This is arbitrary power indeed. A prime example of this would be the Defence of the Realm Act 1914 which gave Parliament extreme powers. Furthermore, Parliament is not limited to the expression of general rules. Therefore, its orders are not merely legislative. In the past, Parliament has condemned people to death, release people from compliance with the law, declare marriages void. Parliament can both override judicial interpretation and even provide that an act is not subject to judicial interpretation.
It is unconstitutional for Parliament to undermine the Rule of Law, however, it not illegal. Indeed, a case which highlights that the doctrine of Parliamentary Sovereignty can sometimes be used to violate the Rule of...
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[ 3 ]. Helen Fenwick and Gavin Phillipson, Public Law and Human Rights (2nd edn, Cavendish Publishing Limited, 2003) 73.
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