Introduction
The question of how courts uphold the supremacy of the constitution presents an immediate challenge within the legal framework of the United Kingdom. Unlike nations such as the United States or Germany, the UK does not have a single, codified document that is hierarchically superior to all other laws. Instead, the UK's constitutional order is traditionally defined by the doctrine of parliamentary sovereignty, which posits that Parliament is the supreme law-making body and its validly enacted statutes cannot be challenged by the courts (Dicey, 1915). Consequently, the concept of constitutional supremacy, where a constitution is the ultimate source of legal authority, does not apply in its classic sense.
However, this does not mean the courts have no role in upholding constitutional values. The UK's constitution is understood as an uncodified collection of statutes, common law principles, conventions, and international treaties. This essay will argue that while UK courts cannot declare Acts of Parliament unconstitutional and void, they uphold the UK's constitution through a variety of judicial techniques. These include the application of strong interpretive principles that protect fundamental rights, the development of the common law, and the careful application of specific statutes that are deemed to have a 'constitutional' status. Through these mechanisms, the courts engage in a delicate balancing act, protecting core constitutional principles while formally respecting the ultimate authority of Parliament.
The Orthodox Position: Parliamentary Sovereignty
The foundational principle of the UK's public law is the sovereignty of Parliament. As articulated by A.V. Dicey, this doctrine has three main components: Parliament possesses the authority to create or repeal any law; no individual or institution can override or nullify an Act of Parliament; and no Parliament can bind its successors or be bound by its predecessors (Dicey, 1915). The courts have historically adhered to this principle. In the case of Madzimbamuto v Lardner-Burke [1969] AC 645, the Privy Council affirmed that even if an Act of Parliament violated international law, a domestic court would still be bound to apply it. Lord Reid stated that it would be unconstitutional "for the courts of the United Kingdom to do anything else but follow the statutes" passed by Parliament.
This orthodox view means that if Parliament chose to pass a law, for example, banning certain political opinions or confiscating private property without compensation, the courts would be legally obliged to enforce it. This leaves little room for the judiciary to uphold a 'supreme' constitution against the express will of Parliament. This traditional doctrine, therefore, represents the starting point and the primary constraint on the judicial role in upholding constitutional norms in the UK.
Upholding Constitutional Principles Through Interpretation
Despite the constraints of parliamentary sovereignty, courts have developed powerful interpretive tools to protect constitutional principles. The most significant of these is the principle of legality. This principle establishes a judicial presumption that Parliament does not intend to legislate in a way that interferes with fundamental common law rights or principles without using clear and unambiguous language. As Lord Hoffmann famously stated in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights… But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost."
In Simms, the House of Lords used this principle to strike down a blanket policy preventing prisoners from giving oral interviews to journalists, as it was an unjustifiable breach of their fundamental right to freedom of expression. The court found that the general wording of the Prison Act 1952 did not authorise such a sweeping restriction. Similarly, in R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, the court presumed that Parliament did not intend to allow the Home Secretary to retrospectively increase a prisoner's sentence, as this would violate the fundamental principle against retrospective punishment. Through the principle of legality, the courts force Parliament to be explicit if it wishes to abrogate a fundamental right, thereby upholding the constitutional value of those rights without directly challenging Parliament's ultimate power.
The Emergence of 'Constitutional Statutes'
A more direct, though still developing, method by which courts uphold constitutional norms is through the recognition of a special category of 'constitutional statutes'. This idea was most clearly articulated by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), the 'Metric Martyrs' case. He suggested that certain statutes, by virtue of their content, hold a higher status than ordinary legislation. These statutes are those which "condition the legal relationship between citizen and state in some general, overarching manner" or which "enlarge or diminish the scope of what we would now regard as fundamental constitutional rights" (para 62). Examples given include Magna Carta 1297, the Bill of Rights 1689, the Acts of Union 1707, and, more recently, the Human Rights Act 1998 and the devolution statutes.
According to Laws LJ, these constitutional statutes cannot be impliedly repealed by a later, inconsistent Act of Parliament. While an ordinary statute can be superseded by a later statute without express words, a constitutional statute would require express language in a subsequent Act to be repealed or amended. This doctrine, while not challenging Parliament's ability to expressly repeal any Act, effectively gives these core constitutional laws a form of legal armour. The Supreme Court gave weight to this approach in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, where it held that the European Communities Act 1972 was a constitutional statute and that rights flowing from it could not be removed by the executive using prerogative powers, but only by a further Act of Parliament. By identifying and protecting these specific statutes, the courts are directly upholding key pillars of the UK's uncodified constitution.
The Human Rights Act 1998 and the Rule of Law
The Human Rights Act 1998 (HRA) has fundamentally altered the role of the courts in protecting constitutional principles. It incorporates rights from the European Convention on Human Rights into domestic law and provides two key mechanisms for their enforcement. Firstly, section 3(1) of the HRA places a strong duty on courts to "read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights" so far as it is possible to do so. This goes beyond the common law principle of legality. In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords used section 3 to interpret the Rent Act 1977, which gave inheritance rights to a surviving spouse, as applying equally to a surviving same-sex partner. The court effectively read words into the statute to make it compliant with the right to be free from discrimination. This is a powerful tool which allows courts to uphold human rights while appearing to merely interpret, rather than rewrite, legislation.
Secondly, where it is impossible to interpret a statute compatibly, section 4 of the HRA allows higher courts to issue a 'declaration of incompatibility'. This declaration does not invalidate the Act of Parliament, thereby preserving parliamentary sovereignty (Elliott and Thomas, 2020). However, it sends a clear signal to Parliament that the legislation is in breach of fundamental rights and creates significant political pressure for the law to be amended. A prominent example is A v Secretary of State for the Home Department [2004] UKHL 56, where the House of Lords declared that the indefinite detention of foreign terrorist suspects without trial was incompatible with the right to liberty. Following this declaration, Parliament repealed the offending provisions. This mechanism creates a unique constitutional dialogue between the judiciary and Parliament, enabling the courts to uphold fundamental rights without sparking a direct constitutional crisis.
Conclusion
In conclusion, the courts in the United Kingdom do not uphold the supremacy of a constitution in the conventional sense, because the doctrine of parliamentary sovereignty remains the ultimate rule of the legal system. Courts cannot strike down primary legislation as being 'unconstitutional'. However, to suggest they are powerless in the face of Parliament would be to ignore the significant and evolving judicial role in safeguarding the UK's constitutional arrangements. Through a combination of established common law techniques and modern statutory powers, the judiciary actively upholds fundamental principles. The principle of legality ensures that Parliament's intentions to override rights must be crystal clear. The emerging doctrine of 'constitutional statutes' provides a degree of protection for the most important laws that structure the state. Most significantly, the Human Rights Act 1998 has equipped the judiciary with powerful interpretive duties and the ability to declare legislation incompatible with fundamental rights, creating a formal dialogue with the legislature. Therefore, the courts uphold an uncodified constitution not by asserting supremacy over Parliament, but through a more subtle, yet crucial, process of interpretation, guidance, and protection.
References
- Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. London: Macmillan.
- Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford: Oxford University Press.
- A v Secretary of State for the Home Department [2004] UKHL 56.
- Ghaidan v Godin-Mendoza [2004] UKHL 30.
- Madzimbamuto v Lardner-Burke [1969] AC 645.
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
- R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539.
- R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115.
- Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).
