Parliamentary sovereignty and the rule of law are two constitutional principles that underpin the constitution of the United Kingdom, both these principles are defined by A. V. Dicey in the 19th century.1 Dicey suggested three key rules of parliamentary sovereignty: Parliament can make or unmake any law, Parliament cannot bind its successors, and no one can question Parliament’s law.2 Dicey’s core principle of The Rule of Law is that all persons and authorities within the state of the United Kingdom be them public or private are to be bound by the laws administered in the courts and able to benefit from them also. The recent definition by Lord Bingham of the Rule of Law principle is more exhaustive, he sets out the following principles: The law must be accessible, intelligible, clear and predictable; Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion; Laws should apply equally to all; Ministers and public officials must exercise powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers; The law must afford adequate protection of fundamental human rights; The state must provide a way of resolving disputes which the parties cannot themselves resolve; The adjudicative procedures provided by the state should be fair and finally, the rule of law requires compliance by the state with its obligations in international as well as national laws.3 These sub-rules enable the understanding of the principle more comprehensively and these are the rules in which I refer to when discussing the rule of law.
In this essay I am going to identify whether there is conflict between these constitutional principles through the use of common law, judicial remarks, articles on the subject and the impact of the European Convention of Human Rights. Secondly I am going to determine whether one principle outweighs the other in the modern day from the information I have identified and finally I will consider whether the two principles are compatible and if they are not whether there is a chance of reconciliation of the two principles.
Conflict of the two principles can be seen in Burmah Oil Co Ltd v Lord Advocate4 where the principle of parliamentary sovereignty was used to violate the Rule of Law. The Government at the time retrospectively passed the War Damages Act 1965 which then overturned the judgement of the Burmah Oil case which unbound the crown from being liable of compensation for damages to property caused whilst engaged in war. In order for laws to be accessible, intelligible, clear and predictable, covered in Bingham’s meaning of the Rule of Law5 they should not be retrospective. Under the doctrine of parliamentary sovereignty, Parliament can make or unmake any law6 and thus, there is a direct conflict of the two principles that were originally put together by Dicey to work in harmony. In fact, in Lord Reid’s judgement he states: “The definition of Dicey… does not take us very far.”7
1 A. V. Dicey, An Introduction to the Study of the Law of the Constitution (London 1885).
3 Lord Bingham, The Rule of Law, Cambridge Law Journal, 661, (March 2007) pp.67-85.
4 Burmah Oil Co Ltd v Lord Advocate 1965 AC 75
5 Lord Bingham, The Rule of Law, Cambridge Law Journal, 661, (March 2007) pp.67-85.
6 A. V. Dicey, An Introduction to the Study of the Law of the Constitution (London 1885).
7 Burmah Oil Co Ltd v Lord Advocate 1965 AC 75, 99-100.