There is clear tension between the doctrines of parliamentary sovereignty and the rule of law. Do they complement each other or do they conflict with each other? At face value, in the current era, the sovereignty of parliament seems to be superior to that of the rule of law. There is potential for the theoretical situation put forward by Lord Hope where “a new government which has [extensive] power may seek to use it to abolish judicial review or to diminish the role of the courts” i.e. violate the rule of law. However, this may only be a technically possible situation and in reality it is unlikely to happen. Lord Steyn advocated this in his speech in Jackson, by arguing that sovereignty of parliament is a ‘general principle’ of the legal system, but that absolute sovereignty is ‘out of place in the modern [system]’. The ability of the courts to refuse extreme legislation is integral to the judiciary. This makes room for continued respect for the rule of law by parliament, yet tension exists and therefore a conflict can be seen between the rule of law and parliamentary sovereignty.
Whilst there is no statutory definition of the rule of law, it is necessary to articulate an outline of what it entails before we can assess a relationship relating to it. Judges are the primary source of which the rule of law is defined and upheld, and Elliott refers to the judiciary as “the anvil on which the rule of law is defined”. This definition incorporates the bare principle of legality (the concept that all laws must meet a required criteria to be deemed valid and enforceable.) Two approaches interpret the rule of law differently however, resulting in a murky area of the definition and function – a formal conception versus a substantive conception.
The issue of interpretation of the validity of legislation, according to the bare principle of legality, was raised in Jackson. The courts were asked if the Parliament Act of 1949 was ‘valid’ law. The courts held that they should not contradict Parliament, and did not move to overturn the Act. Yet, the fact that judicial review was allowed on a Parliamentary Act shows a desire to interpret laws with a baseline bare principle of legality. Further, Lord Steyn was vocal in condemning parliamentary sovereignty. His consideration of circumstances where parliament could abolish judicial review were particularly relevant to the statement in question. ‘Even a sovereign parliament … cannot abolish’ something as innate to the system [judicial review]. His arguments that parliamentary sovereignty was not modern was valid, as many other current legal systems that have written constitutions include an entrenched clause that governments cannot hold sovereignty, and it is the rule of law that takes this into account.
There is a clash between the rule of law and parliamentary sovereignty over the bare principle of legality, thus how far are there clashes when it comes to the formal or substantive conception of the rule of law? Allan’s view came from a formal perspective and held that the rule of law was like ‘a sharp knife… efficient’. Those advocating the view of parliamentary sovereignty would subscribe to the formal conception of the rule of law, yet those discrediting it would subscribe to the substantive conception of the rule of law; morality, the need for ‘good’ law and encouragement of judicial intervention. Both formal and substantive conceptions create situations where parliamentary sovereignty comes under scrutiny of the courts. Anufrijeva was one such case where the formal need for ‘certainty’ in law led the courts to overruling parliamentary legislation which stopped benefits for an asylum seeker, on the basis that she had not been adequately informed. Lord Steyn featured in this case also, and referenced importance of respecting the rule of law.
The substantive conception has grown in popularity with the judiciary in recent years, with encroachments on the sovereignty of parliament increasing in frequency. An example being in Daly, where the courts intervened when an individuals right to confidential communication with a lawyer (see The Human Rights Act of 1998) was unlawfully interfered with by the government. The most serious threat to parliamentary sovereignty comes from rulings of the European Court of Human Rights – which challenges Parliament through attempts to assert legal jurisdiction over the actions of the UK where they breach human rights. Parliament has shown resistance to this however, as seen in Hirst No. 2, where Parliament refused to give prisoners the right to vote. Yet, closer to home, in the form of the UK Supreme Court, sovereignty can be threatened by rulings and the resultant social pressure which may affect re-election.
Belmarsh exemplifies this. It came about as a result of the Anti-terrorism, Crime and Security Act 2001, following the 9/11 attacks. Critics of parliamentary sovereignty and the act itself, and advocates of the rule of law claimed it to be a violation of the rule of law at a fundamental level. Open-ended detention of foreign terror suspects without trial was ruled to be contradictory with Article 6 of the Human Rights Act. Parliament bowed to the social pressure and made the legislation less harsh. Here it is clear that sovereignty was overpowered by moral condemnation and social pressure associated with breaching the rule of law, despite it not being legally breached. The comments of Lord Bingham are pertinent to the relationship in question, as he stresses that judicial review cannot ‘override the sovereign legislative authority of [Parliament]’ but identifies that ‘the function of independent judges … to interpret and apply the law’ is an integral part of the rule of law. There is the slight suggestion that there is the possibility that the rule of law and parliamentary sovereignty can coexist; where the court does not strike down legislation with any sovereign power, but parliament does consider rulings of incompatibility.
To conclude, the rule of law in the UK exists in awkward orbit with the concept of parliamentary sovereignty. As public awareness and education increases in regard to social issues and fundamental rights, there is a proportional increase in the calls for the rule of law to be appreciated by Parliament. In this evolving social climate, meticulous formal conception of the rule of law are no longer adequate and there is more demand for respect towards the substantive concept. This is driven by the judiciary being ever more so willing to intervene in human rights cases, and this middle ground that is forming, encroaches closer to the territory of parliamentary sovereignty. Paired with the European Court of Human Rights’ attempts to assert legal jurisdiction over the UK Parliament, an increasing influence over parliamentary sovereignty is forming. The rulings of the UK Supreme Court complement the aforementioned, and are symptomatic of the rule of law’s increasing influence. Whilst Lord Hope’s hypothetical situation of a power hungry parliament dominating could still theoretically exist, in practice it would be highly unlikely for this feat to be capable. As such, the rule of law is ever-increasingly dominating its relationship with the doctrines of parliamentary sovereignty.