I myself would consider that there [are] advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold.’

Lord Woolf, ‘Droit public – English style’ [1995] PL 57

This essay considers one of the most debated issues among academic minds, i.e. the relationship between the courts and Parliament. By the very nature of the British constitution, the British Parliament is a sovereign law-maker. The primary role of the judges is to interpret the Acts so as to give effect to the intentions of Parliament. Historically, judges have been regarded as “handmaidens” of Parliament, expounding, explaining and giving effect to the statutes that come before them (approved in British Railways Board v Pickin).

It is reasonable, first, to refer back to Dicey's theory of Parliamentary sovereignty, which comprises two main aspects. The positive aspect is that Parliament can do whatever it likes; it can make or unmake any law irrespective of its contents. The negative one means that no one can set the legislation aside; there is no mechanism within the British constitution for declaring an Act of Parliament legally invalid. Courts, on the other hand, are the masters of the common law. The courts could develop the common law by way of the precedent, but they did so subject to Parliament's right to legislate and override those developments. Over the years, the Parliamentary sovereignty has diminished due to a number of factors, including, the devolution of power to Scotland, Wales and Nothern Ireland, the membership in the European Union, the growth of judicial review, the establishment of a UK Supreme Court. The most controversial factor, however, is the enactment of the Human Rights Act 1998.

The Human Rights Act has in a number of ways altered the balance of power between the courts and Parliament by conferring far greater powers upon the courts. The principal features of the Act are well known. Of particular importance are sections 3 and 4. Section 3 imposes a fundamentally new principle of statutory construction. Instead of seeking the intentions of Parliament, the courts ask whether the statute can be given a construction consistent with Convention rights. The leading case for the scope of the interpretative powers under section 3 is Ghaidan v Godin Mendoza. The courts can now make amendments to the statutory texts. Some argue that that means the courts are assuming a legislative function since they are recasting legislation so as to have a different effect to that which Parliament intended. There are too main counterarguments. First, Parliament can always pass a law and change judicial decision (confirmed in Burmah Oil v Lord Advocate) and, second, it is still Parliament which decides whether to amend the legislation or not. Parliament can choose to ignore the judge's declaration. If it chooses not to do so, that is an end to the matter from a legal point of view. It must also be mentioned that the courts' limited privilege to review legislation can be taken away by Parliament.

To conclude upon the impact of the Act, there has been a suggestion that the judiciary have somehow usurped Parliament's role and placed certain limits on Parliamentary sovereignty. This approach sounds too radical. The reality is that the Human Rights Act has undoubtedly transformed the relationship between the courts and Parliament. Parliament has ceded powers to courts and, until it takes them back, those powers have significantly limited the autonomy which Parliament has traditionally exercised over the legislative process.

Over the past decades, the role of the judges in the UK has become more and more concerned with issues of public and even social policy. Although judges do uphold separation of powers, for instance, in a famous case Duport Steel v Sirs (it is for Parliament, not judiciary, to decide whether any changes should be made to the law), this is not a solid concept, it evolves in the present fast-moving society. As mentioned above, courts are the masters of the common law, that is why they must develop the common law so it reflects the changing needs and standards of society. Sometimes that implies moving the law on when Parliament has not got the legislative time, or even sometimes when it has not got the political will to do so. But the courts should never forget that they cannot go against Parliament’s will expressed through a statute.

To sum up, lawyers and academics have long recognised Parliamentary sovereignty as the cornerstone of the British constitution. it would require a very powerful reason indeed for departing from what has been almost universally accepted. Whether or not Parliamentary sovereignty is absolute, there is no conclusive document to contradict them. It follows from the above analysis that neither the Convention nor the Human Rights Act goes nowhere near to imposing a limit on Parliamentary sovereignty.