A. V. Dicey provides a definition of parliamentary sovereignty which maintains that the courts as an institutional body have no right to interfere with parliament’s power to make any law.1 By contrast, the dicta in Jackson2 implies a shifting attitude of the judges away from this traditional definition towards a limited sovereignty. This essay will aim to establish whether parliamentary sovereignty is now at threat from the judiciary, firstly by exploring the implications of the comments made in this case and secondly by analysing the effect of the Human Rights Act. In particular it will focus on whether the interpretive power given to the judiciary under this act has sparked the depletion of the traditional legislative power of parliament.
The definition of parliamentary sovereignty offered by Dicey states that parliament can enact ‘any law whatever’ and that ‘no person or body’ has ‘a right to override or set aside the legislation of parliament.’3 The doctrine is based on the principle that parliament as ‘democratic representatives’4 form the basis for the creation of law and derive their authority from the electorate. The judiciary have always been cautious not to interfere with this democratic process, a stance established by Pickin.5 In Jackson Lord Steyn claims that parliamentary sovereignty is ‘a concept of common law,’ ‘created’ by the judges themselves.6 His comments portray the radical idea that parliamentary sovereignty is only upheld in practice so long as the judges continue to adopt this doctrine as the fundamental basis for their decisions. The views expressed are not necessarily unanimous amongst the judiciary,7 and it does not necessarily point to a changing system in which the courts will not give effect to the intention of parliament when interpreting legislation.8 However these are the first comments to incorporate the principle that parliamentary sovereignty may be something the courts will challenge and have strong implications for the continuing operation of the unlimited sovereignty described by Dicey.9
V Bogdanor has highlighted the issue of the Human Rights Act; an act which it had been feared would compromise parliamentary sovereignty as a result of the new duty it bestows upon the judiciary to protect rights.10 Certainly it was never the intention of Parliament to limit its own legislative supremacy through the passage of the HRA.11 The act was created as a means to preserve the sovereignty of parliament while allowing for the incorporation of convention rights into domestic law.12 As the Home Secretary at the time Jack Straw stated the bill ensures that ‘people’s rights are brought to fruition’ but ‘parliament remains supreme.’ As an act of parliament it should inherently embody the will of parliament so by following the guidelines set out in the legislation correctly the courts should not be interfering with the doctrine of parliamentary sovereignty.13
Under the HRA the courts have two options when faced with a piece of legislation which is seemingly incompatible with a convention right. The first option, to make a declaration of incompatibility under section 4, seems to retain parliamentary sovereignty somewhat as it allows for the continuing operation of the incompatible legislation14 and does not force the enactment of new legislation.15 The second option, the provision made under section three to read legislation ‘in a way which is compatible with convention rights’16 seems to raise more issues in terms of parliamentary sovereignty. This principle was expressed by Lord Hope in Jackson in terms of a limit to the Dicean definition such that it ‘enables courts to give a meaning to legislation which is compatible’ even if this ‘differs from what parliament had in mind when enacting it.’17
In Ghaidan18 the House of Lords ruled that in schedule 1 of the rent act19 ‘his or her wife or husband’ should be read to mean civil partner. Surely by departing from the original meaning of the statute the