Deviation from Dicey? Departures from orthodoxy in judicial treatment of parliamentary sovereignty

Abstract

This thesis explores the judiciary’s treatment of parliamentary sovereignty – the tenet regarded as the core of the UK constitution – examining where the courts’ reasoning has departed from orthodox Diceyan understandings (which retain the static attitude that the judiciary are limited in their powers to curtail government policy) towards more dynamic approaches whereby parliamentary sovereignty may co-operate with other constitutional principles, allowing for a more flexible understanding of judicial authority.
Despite the courts’ usual hesitancy to depart from settled norms, complex political themes have situated a series of key judicial decisions which examine sovereignty through a dynamic lens; EU primacy, human rights legislation, and devolution rights have required the courts to re-examine normative formulations of principle, reflecting a more dynamic outlook which allows for increased judicial engagement with statute. Decisions which provide a dynamic reading of sovereignty have been broken down and categorised to identify the courts’ varying approaches when departing from orthodoxy – signifying the complexity surrounding advancements to the treatment of constitutional principle. Assessing the extraordinary political contexts prompting dynamic treatments of sovereignty, further analysis of judicial reasoning illustrates whether parliamentary sovereignty has undergone a lasting departure from orthodoxy whereby it may co-operate with wider constitutional principles.