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Parliament Can Do Anything, Except Bind Its Successors

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Parliament Can Do Anything, Except Bind Its Successors

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

Dicey's other great idea, sitting right beside the rule of law in the same 1885 book, is easy to state and strange to actually live under: parliamentary sovereignty. In his formulation, Parliament has, under the English constitution, the right to make or unmake any law whatever, and no person or body has the right to override or set aside the legislation of Parliament. There is no higher law, no constitutional court empowered to strike an Act down, no entrenched bill of rights immune from ordinary repeal. Whatever the sitting Parliament enacts, by the ordinary legislative process, is law, full stop.

The idea is easiest to grasp through its own limit, which Dicey stated just as plainly: Parliament cannot bind its successors. A Parliament in one decade cannot pass a law that a later Parliament is forbidden to repeal, because that later Parliament has exactly the same unlimited power the earlier one had. Entrenchment, in the sense of a rule that is harder to change than an ordinary statute, does not exist in Dicey's picture of the British constitution. Anything Parliament has done, a later Parliament can simply undo, by the same ordinary vote.

This sits oddly beside Dicey's own rule of law, and he knew it. If Parliament truly can do anything, what stops it passing an unjust law and having that law count, by his own first principle, as entirely regular and entirely supreme? Dicey's answer leaned on what he called the political rather than the legal constraints on Parliament: public opinion, the electoral consequences of an outrageous statute, and the internal culture of a legislature that had, as a matter of practice rather than law, developed habits of restraint. Critics then and now have found this a thinner reed than a real legal limit would be, and much of later constitutional theory, in Britain and in countries that inherited the Westminster model, is an argument about whether Dicey's picture still holds once you add human rights statutes, a devolved Scottish Parliament, or membership in a supranational legal order, each of which looks, to some readers, uncomfortably like exactly the entrenched higher law Dicey said the system did not have.

The reason the idea has lasted, argument and all, is the same reason the rule of law formulation has lasted: Dicey gave a famously unwritten, famously vague constitutional culture a crisp rule you could actually apply to a hard case. Ask any British constitutional lawyer whether a given statute can be repealed by ordinary legislation, and the answer, in the first instance, still runs through the principle Dicey wrote down in 1885, however much the second and third instances have since complicated it.

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