Parliamentary sovereignty is a very important concept in UnitedKingdom constitution. It came about at the time of WIllaim III and Mary II who cameto position of royalty through sacrificing their own power and giving it toparliament, as a result, the monarch’s power of royal prerogative is underneathparliament within the late seventeenth and early eighteenth century. Thiscondition may be found within the Bill of Rights 1688, that expressed lawsshould be created or revoked by Parliament and not by the Monarch alone .Custom views of parliamentary sovereignty derives from Dicey’s,his views of parliament are the following; the primary being that parliament isthat the final law-making establishment and can sanction any law, the secondbeing is that no parliament is to be bound by a forerunner nor bind a futuresuccessor and also, the remainder of Diceys principles is that no individual orbody might inquire or question thevalidity and legitimacy of law . This essay can discuss if these views staycorrect.In the R (on the appliance of Evans) v professional General2015 UKSC 21, the Attorney General, whomis is a minister, exercised his power to veto a court ruling underneath s.
53(2) of the Freedom of Information Act 2000. Judicial review occurred and itupheld the veto, then the problem proceeded to the Supreme Court (SP) thatoverrode the review . It was expressed there was no grounds for the veto andthat Section 53(2) was contrary with EU law. The significance of the R v Attorney General is that thisjudgment provides is a concept to the degree to that it’s lawful for a courtactive forces of judicial review to strike down a Government Minister’s decisioncreated underneath the powers allowed by Parliament to overturn a tribunal’sjudgment. Since the SP overrode the Judicial review and set that the Ministerhad no ground to exercise his power of veto, it implies that it is legitimatefor a court to deny Parliaments will, this will being Parliament permittingthe use of veto.
It may be argued that theDiceyan Doctrine isn’t correct because the courts used their power to deny anMinister his power that was expresslygiven by an act of parliament, and so the courts questioned the validity of anact of parliament.Furhermore, Jackson v Attorney General contained thoughtfrom judges acting in their official boundary, that courts might have theability to strike down an Act of Parliament within the event of a violation ofconstitutional principles. thus, a body like a court will question thelegitimacy of laws brought by Parliament. During this case, 3 law lords urgedthat that courts had the ability to strike down legislation. One example isLord Steyn aforementioned “It (parliamentary supremacy) is a construct of thecommon law. The judges created this principle. If that is so, it is notunthinkable that circumstances could arise where the courts may have to qualifya principle established on a different hypothesis of constitutionalism. Inexceptional circumstances involving an attempt to abolish judicial review orthe ordinary role of the courts”.
this means that the courts do have theflexibility to question parliament and also the laws it makes revolving Judiciary as Lors Steyn discussed how ifParliament was to remove certain court powers such as Judicial review throughlaw, the courts have the ability to strike down that law. Therefore, in theory,the Diceyan Doctrine that no body or institution may question parliament legislativeagenda is inaccurate.And so each cases referenced above resulted in challenges to the customaryperspective of parliamentary sovereignty,this being that no individual or body likea court might question the validity of law.However, though it’s going to appear as if the court decisionsare going against sovereignty and the Diceyan doctrine of thought, the case R (On the appliance ofMiller) v Secretary of State for Exiting the European Union 2017 UKSC 5 hows that the court’s callupheld the Diceyan school of thought.In the R v Secretary of State for Exiting the European Union,there was a problem that the government utilising exclusive powers known as Prerogativepowers to trigger article 50. The question here was whether or not these powerscould be used to trigger article 50. The Supreme Court recognised that there wasan important guideline of the UK’s constitution, this being that Parliament issovereign and might create and undo laws.
The European Communities Act 1972which brought the UK into the EU was introduced through an Act of Parliamentand so the government cannot supersede this using exclusive right powers givenby the monarch. It was said that Parliament should only Trigger article 50because the ECA 1972 is an independent source of law, then parliament might solely selectonce to reject this source. Additionally the EU provided citizen with rights,and so solely Parliament is authorised to revoke this. The may be a crucialcase as this case is new, the Supreme Court creating a choice in 2017 thatupheld the Diceyan Doctrine, being that Parliament is supreme law creating bodyand solely it will create and undo laws as only it could repeal the ECA 1972and trigger article 50.
However, we should contemplate the position of parliamentbefore the EU referendum and R v Secretary of State for Exiting the EuropeanUnion . throughout this siutation, the Diceyan Doctrine remained inaccurate through the European Communities Act 1972 (ECA). The ECA allowedthe U.K to become a member of the European Union. It additionally gave way EU law superseding United Kingdoms law broughtby Parliament and so, takes precedence over national law. This implies that parliamentis not any longer, the supreme law-making body because the EU currently makeslaw that Parliament cannot supervene upon.
This is an example that shows Diceyan Doctrine of thought beinginaccurate, this account being that parliament is supreme law-making body whichnobody or body like a court will question the validity of law is that the issuetame case.In R (Factortame Ltd) v Secretary of State for Transport,the European Court of Justice (ECJ)addressed the legitimacy of the Merchant Shipping Act (MSA) 1988, that wasdeclared to prevent Spanish fishing owners from selling fish caught in the UKin Spain. This issue was later to the ECJ, that MSA dishonoured the Treaty ofRome 1957 that created the European Economic Community. Here is a case ofprevention of parliamentary act fromhaving an effect, which demonstrates that parliament isn’t the preeminent t lawcreating body because the MSA was declared incompatible with EU law, so the MSAought to be negated. It indicates how a court, will questioned the validity ofan act introduced by Parliament. Therefore, this Dicey account of parliamentarysovereignty being inaccurate.
However, one might argue that Parliament consented to thepresent dominion and can simply repeal the ECA 1972. This would mean thatParliaments sovereignty isn’t lost and Diceys account would subsequently becorrect. This is currently happening, the European Union (Withdrawal) Bill willnegate ECA and lead to the countries exit from the EU.
Once this Bill receivesroyal assent, the U.K will now longer be subjugated to EU law and the European court of justice. Parliament willonce more be the supreme law creating body and no establishment will questionthe validity its laws. Therefore, Diceyan doctrine remains correct.The Human Rights Act (HRA) 1988 doesn’t have an entrenchedstanding and, may be amend or repealed supported a parliamentary majority, soit may be thought of to not be destructive to Parliamentary sovereignty. We mustalso consider that if Parliament was to repeal the HRA as it wanted to in 2010 with the Bill of Right,it would have to replace it with rights that conform to the European Conventionon Human Rights. So parliament is essence is limited and so it is not thesupreme law making body as it has to conform with regulation when passing abill. This means that Dicyan Doctrine is in inaccurate.
In addition to this Section 4 of the Act, permits the highercourts to issue of a declaration of incompatibility to act of Parliament inrelevancy to human rights. This enables courts to think about that the terms ofa statute, acts of public authority that Parliament has passed, and choosewhether or not it’s incompatible with the UK’s commitments underneath the HumanRights Act 1998. thus, this means that the Diceyan Doctrine isn’t correct as itgoes against the concept that no body like a court will question the validityof AN act Parliament.However in terms of declaration of incompatibility, itmerely demonstrates the act of Parliament is contrary with the EuropeanConvention of Human Rights, it doesn’t negate the statute as Parliament thenchoses to decide whether or not it needs to amend the act. To illustrate thismore, underneath Section 10 of the HRA, a Minister of the Crown might createsuch modification to primary legislation that are viewed as vital to withdrawthe incompatibility. thus it may be argued that the courts cannot strike downan Act of Parliament as Parliament can repair the problem and so the DiceyanDoctrine of thought remains correct.
As indicated by the Diceyan Doctrine, Parliament is not bound by its predecessors or bind itssuccessors. this is often largely shown through the Doctrine of implicitRepeal. This is when Act of Parliament conflicts with an earlier act, the laterAct takes precedence. Through this, we can say thatno parliament is bound orbinding.
In Vauxhall homes ltd v port Corporation, the court command that theHousing Act 1925 impliedly repealed the Acquisition of land act 1919. Thisshows the sovereignty of parliament, this being that no parliament will bind afuture parliament. Therefore, the Diceyan Doctrineremains correct.
In conclusion, the school of thought of Parliamentarysovereignty seems to own come back full circle since Dicey first defined it.The Diceyan Doctrine had undergone of challenges like the EU. However, therehas additionally been a series of acceptance of the Diceyan Doctrine, like theMiller case. Yet, in follow the three parts that Diceyan Doctrine has held up. Myfinal remark is that when the withdrawal bill reacieves royal assent, Diceyaccount of Parliamenary will be accurate in theory, but in practise, therewould still be limitation such as the Courts.
On this note, I say thatParliament is sovereign and that the U.K adheres to the account of Dicey