Redefining parliamentary sovereignty: we do not believe in fairy tales anymore

Johnson, Marc and Jose, Samson (2026) Redefining parliamentary sovereignty: we do not believe in fairy tales anymore. Keele Law Review, 6. (In Press)

Abstract

This article argues that the United Kingdom remains wedded to an orthodox, Diceyan account of parliamentary sovereignty. Recent courts have reiterated the familiar claim that Parliament may make or unmake any law whatsoever and that no person or body is recognised by law as having authority to override its enactments. We contend that this orthodoxy now functions as a legal fiction: it sustains a monolithic image of Parliament while obscuring the individual agency and incentives through which law is made, and it invites complacency about legislative techniques that seek to insulate power from judicial scrutiny. Our analysis combines constitutional doctrine with jurisprudential and political theory. We treat the rule of law as a demanding constitutional benchmark, specified in part by reference to the Venice Commission’s 2016 Rule of Law Checklist, and we test orthodox sovereignty against contemporary practice, with attention to ouster clauses, the principle of legality, and access to justice. Through methodological individualism, we analyse Parliament through the actions and motivations of individual lawmakers and show how an uncodified constitution and majoritarian electoral incentives can generate both tyranny of the majority and tyranny of the minority. On this basis, we propose a redefinition of parliamentary sovereignty as contingent rather than absolute. Legislative authority derives its legitimacy from the rule of law, from moral commitments implied by the social contract and the common good, and from recognition by courts and other legal officials, drawing on Locke, Rousseau, Rawls, Hart, and Kelsen in doing so.

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Contributors

Author: Marc Johnson

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