The Sovereignty of Parliament

• Pages: 11-16

CHAPTER 3

This was a doctrine in its heyday in the days of Professor AV Dicey1who expressed it as

the rule which conferred on Parliament the power ‘to make or unmake any law

whatever’. Up to the end of the Second World War, the doctrine was one of great

constitutional significance which was not seriously questioned from any quarter. It was

taken as axiomatic that Parliament could pass laws on any matter whatsoever and this

applied to the many statutes and other laws constituting (in large measure) the British

Constitution, to which reference has been made in Chapter 1 above.

After the Second World War, there were two powerful developments which called the

doctrine into question and in this chapter we shall very briefly examine them. We shall

also see later in the text the extent to which the British restrained themselves from

exporting the principle of the supremacy of Parliament in the grant of new constitutions

to many of its former colonies, including those in the Caribbean.

The first development affecting that sovereignty was the European Court of Justice

which came into operation after Britain joined the European Economic Community

(EEC), now the European Union. As will be shown hereunder, no doctrine of

constitutional law – no matter how ancient or well entrenched – can ignore the reality of

Britain’s international obligations. It is for this reason we must now examine the impact of

that fact upon the doctrine of the sovereignty of Parliament, in so far as the judicial organs

of the European Union are concerned.

A DEVELOPMENT IN THE DIRECTION OF QUALIFYING

SOVEREIGNTY OF PARLIAMENT

The British Constitution has left the United Kingdom isolated from the rest of the

Commonwealth because its protagonists have clung to the myth that its unwritten nature

gives it flexibility to grow and evolve.2But Lord Lester has been relentless in pointing out

that the most striking characteristic of the British Constitution is ‘its failure to adapt to the

changed needs of the nation’.3In this connection, he has referred to what he describes as

‘the alienation of Northern Ireland’,4to colour and citizenship in Britain,5to ‘devolution

in a vacuum’,6to equality in parts of the United Kingdom. In Britain, it is unlawful to

discriminate on racial grounds, but racial discrimination is not unlawful in Northern

Ireland. At the same time, it is unlawful in Northern Ireland to discriminate on grounds

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THE SOVEREIGNTY OF PARLIAMENT

1 Dicey, 1965, p 39.

2 See Lester, 1989, pp 345–69. See, also, Lord Hailsham, 1978, pp 137–40.

3 See Lester, 1989, p 368.

4Ibid, p 348.

5Ibid, pp 349–52.

6Ibid, pp 353–56.