Law
The Role of Parliamentary Sovereignty in Modern Constitutional Adjudication
Quick fact
In the UK, the Human Rights Act 1998 allows courts to declare a statute incompatible with the European Convention on Human Rights, and such a declaration triggers political—not judicial—remedy, preserving parliamentary sovereignty while exerting strong pressure on the legislature.
Why this is interesting
You might think Parliament can do anything, but in many countries courts now strike down laws. How did we get from absolute parliamentary power to judges overturning statutes?
Read the full explanation
Understanding The Role of Parliamentary Sovereignty in Modern Constitutional Adjudication
Once, in the UK, Parliament was truly supreme: any Act it passed was law, and no court could override it. This is the traditional doctrine of parliamentary sovereignty, famously articulated by A.V. Dicey: Parliament can make or unmake any law, and no body can override it. But modern constitutional adjudication has complicated this. Courts now often review statutes to see if they comply with higher norms like constitutional rights or fundamental principles. They don't simply strike down laws as in the US; instead, they interpret statutes to be compatible with those rights, or they require explicit words to override fundamental rights. This keeps the final legal word with Parliament but gives judges a powerful role in shaping policy.
A deeper explanation
The historical shift from absolute to qualified parliamentary sovereignty is driven by several factors: the rise of human rights instruments, the UK's accession to the European Union (pre-Brexit), and the growth of constitutional principles like the rule of law and access to courts. In the UK, courts have developed techniques such as the 'principle of legality': unless Parliament explicitly authorizes a rights-infringement, courts will presume that statutes protect fundamental rights. This is a stark departure from the literal reading of statutes. Moreover, in cases like Anisminic v Foreign Compensation Commission, courts reasserted their power to review administrative decisions, even those protected by ouster clauses. The Human Rights Act 1998 introduced a compromise: courts can declare an Act incompatible, but they must not strike it down; Parliament then decides whether to amend it. This maintains the formal supremacy of Parliament while giving courts a powerful remedial tool. Thus, modern constitutional adjudication reshapes the doctrine of parliamentary sovereignty: it preserves legislative supremacy in theory but allows judges to enforce substantive limits, creating a dynamic interplay between the legislature and judiciary.