The Relationship Between Parliamentary Sovereignty and the Rule of Law

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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


Bibliography: 2. Blackshield T and Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th edn, Federation Press, 2010) 84-85 3 4. Fenwick H and Phillipson G, Public Law and Human Rights (2nd edn, Cavendish Publishing Limited, 2003) 5 6. Stone J, Social Dimensions of Law and Justice (Maitland Publications, 1966) 619-21 7 [ 3 ]. Helen Fenwick and Gavin Phillipson, Public Law and Human Rights (2nd edn, Cavendish Publishing Limited, 2003) 73. [ 8 ]. WI Jennings, The Law and the Constitution (5th edn, University of London Press, 1959) 54-58 in Tony Blackshield and George Williams, Australian Constitutional Law & Theory: Commentary and Materials (5th edn, Federation Press, 2010) 96-7. [ 12 ]. Tony Blackshield and George Williams, Australian Constitutional Law & Theory: Commentary and Materials (5th edn, Federation Press, 2010) 84-85.

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