Judiciary & Parliament

This lesson examines the relationship between the judiciary and Parliament in the UK political system. This relationship is defined by the tension between two fundamental constitutional principles: parliamentary sovereignty and the rule of law. Understanding how these principles interact — and sometimes conflict — is essential for the Edexcel A-Level Politics specification.

---

Parliamentary Sovereignty: The Foundation

Parliamentary sovereignty is the cornerstone of the UK constitution. As formulated by A. V. Dicey, it holds that:

1. Parliament can make or unmake any law on any subject.
2. No body — including the courts — can override or set aside an Act of Parliament.
3. No Parliament can bind its successors — each Parliament is free to repeal or amend any previous legislation.

This means that, unlike the US Supreme Court, the UK Supreme Court cannot strike down an Act of Parliament. Even if a law violates fundamental rights, the courts cannot invalidate it. The most they can do is issue a declaration of incompatibility under the Human Rights Act 1998 — a formal signal to Parliament that the law needs changing, but which Parliament is not legally obliged to follow.

Key Term: Parliamentary sovereignty is the principle that Parliament is the supreme legal authority, able to create or end any law, and that no body can override Acts of Parliament.

---

The Rule of Law: The Counterweight

The rule of law holds that all persons and institutions — including the government — must be subject to and accountable under the law. The judiciary is the guardian of the rule of law, ensuring that:

• The government acts within its legal powers.
• Citizens are treated equally before the law.
• No one is punished without lawful authority.

The tension arises because parliamentary sovereignty means that Parliament can, in theory, pass laws that violate the rule of law — for example, laws that discriminate, remove rights without compensation, or restrict access to justice. The courts cannot prevent this.

---

How Do the Judiciary and Parliament Interact?

1. Statutory Interpretation

When Parliament passes legislation, it is the judiciary's role to interpret what that legislation means and to apply it to specific cases. This gives judges significant influence over how laws operate in practice.

There are several approaches to statutory interpretation:

Approach	Description
Literal rule	Words are given their plain, ordinary meaning.
Golden rule	If the literal meaning produces an absurd result, a secondary meaning may be adopted.
Mischief rule	The court considers what problem Parliament intended the law to address.
Purposive approach	The court interprets the law in light of Parliament's broader purpose.

The purposive approach has become more common, particularly since the HRA 1998, and gives judges considerable discretion. Critics argue this allows judges to read meanings into legislation that Parliament never intended.

2. Section 3 of the Human Rights Act: Interpretive Obligation

Section 3 of the HRA requires courts to interpret all legislation, "so far as it is possible to do so," in a way that is compatible with Convention rights. This gives judges a powerful tool — they can effectively rewrite the meaning of statutes to make them compatible with human rights.

Example: In Ghaidan v Godin-Mendoza (2004), the House of Lords used Section 3 to interpret the Rent Act 1977 as applying to same-sex partners, even though the statute referred only to a person living with the tenant "as his or her wife or husband." The court effectively read the statute as though it said "as if they were his or her wife or husband."

Key debate: Does Section 3 give judges too much power to rewrite legislation? Or does it simply allow judges to ensure that Parliament's broader intention — to comply with human rights — is fulfilled?

3. Section 4 of the Human Rights Act: Declarations of Incompatibility

If a court finds that legislation is incompatible with Convention rights and cannot be interpreted otherwise (even using Section 3), it can issue a declaration of incompatibility under Section 4.

A declaration of incompatibility:

• Does NOT invalidate the law.
• Does NOT legally require Parliament to change the law.
• Signals to Parliament that the law needs to be amended.
• Preserves parliamentary sovereignty — Parliament has the final say.

In practice, Parliament has responded to most declarations of incompatibility by amending the offending legislation, though there is no legal obligation to do so.

Statistics: Since the HRA came into force in 2000, approximately 45 declarations of incompatibility have been made, of which about 30 have become final (not overturned on appeal). In the vast majority of cases, Parliament has subsequently amended the law.

Key Cases Involving Declarations of Incompatibility

Case	Year	Issue	Outcome
A v Secretary of State (Belmarsh)	2004	Indefinite detention of foreign terror suspects	Declaration issued; Parliament passed the Prevention of Terrorism Act 2005
Smith v Scott	2007	Blanket ban on prisoner voting	Declaration issued; the UK was slow to comply (ECtHR ruling in Hirst v UK)
R (Steinfeld) v Secretary of State	2018	Opposite-sex couples excluded from civil partnerships	Declaration issued; Parliament extended civil partnerships

---

Parliamentary Sovereignty vs the Rule of Law: The Tension

The relationship between parliamentary sovereignty and the rule of law is one of the most important — and contested — questions in UK constitutional law.

The Traditional View: Parliamentary Sovereignty Is Supreme

Under the Diceyan view, parliamentary sovereignty is absolute. Parliament can pass any law it wishes, including laws that violate the rule of law. The courts must enforce Acts of Parliament, even if they are unjust.

Example: Parliament could, in theory, pass a law declaring that a particular person is guilty of a crime without a trial (a "bill of attainder"). The courts would be obliged to enforce it.

The Challenge: Can the Rule of Law Override Parliament?