Parliamentary derives from Dicey’s, his views of parliament

Parliamentary sovereignty is a very important concept in United
Kingdom constitution. It came about at the time of WIllaim III and Mary II who came
to position of royalty through sacrificing their own power and giving it to
parliament, as a result, the monarch’s power of royal prerogative is underneath
parliament within the late seventeenth and early eighteenth century. This
condition may be found within the Bill of Rights 1688, that expressed laws
should 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 is
that the final law-making establishment and can sanction any law, the second
being is that no parliament is to be bound by a forerunner nor bind a future
successor and also, the remainder of Diceys principles is that no individual or
body might inquire or question  the
validity and legitimacy of law . This essay can discuss if these views stay

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!

order now

In the R (on the appliance of Evans) v professional General
2015 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 it
upheld the veto, then the problem proceeded to the Supreme Court (SP) that
overrode the review . It was expressed there was no grounds for the veto and
that Section 53(2) was contrary with EU law.

The significance of the R v Attorney General is that this
judgment provides is a concept to the degree to that it’s lawful for a court
active forces of judicial review to strike down a Government Minister’s decision
created underneath the powers allowed by Parliament to overturn a tribunal’s
judgment. Since the SP overrode the Judicial review and set that the Minister
had no ground to exercise his power of veto, it implies that it is legitimate
for a court to deny Parliaments will, this will being Parliament permitting
the  use of veto. It may be argued that the
Diceyan Doctrine isn’t correct because the courts used their power to deny an
Minister  his power that was expressly
given by an act of parliament, and so the courts questioned the validity of an
act of parliament.

Furhermore, Jackson v Attorney General contained thought
from judges acting in their official boundary, that courts might have the
ability to strike down an Act of Parliament within the event of a violation of
constitutional principles. thus, a body like a court will question the
legitimacy of laws brought by Parliament. During this case, 3 law lords urged
that that courts had the ability to strike down legislation. One example is
Lord Steyn aforementioned “It (parliamentary supremacy) is a construct of the
common law. The judges created this principle. If that is so, it is not
unthinkable that circumstances could arise where the courts may have to qualify
a principle established on a different hypothesis of constitutionalism. In
exceptional circumstances involving an attempt to abolish judicial review or
the ordinary role of the courts”. this means that the courts do have the
flexibility to question parliament and also the laws it makes revolving  Judiciary as Lors Steyn discussed how if
Parliament was to remove certain court powers such as Judicial review through
law, the courts have the ability to strike down that law. Therefore, in theory,
the Diceyan Doctrine that no body or institution may question parliament legislative
agenda is inaccurate.

And so each cases referenced above  resulted in challenges to the customary
perspective of parliamentary sovereignty,this being that no individual or body like
a court might question the validity of law.

However, though it’s going to appear as if the court decisions
are going against sovereignty and the Diceyan doctrine  of thought, the case R (On the appliance of
Miller) v Secretary of State for Exiting the European Union  2017 UKSC 5 hows that the court’s call
upheld 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 Prerogative
powers to trigger article 50. The question here was whether or not these powers
could be used to trigger article 50. The Supreme Court recognised that there was
an important guideline of the UK’s constitution, this being that Parliament is
sovereign and might create and undo laws. The European Communities Act 1972
which brought the UK into the EU was introduced through an Act of Parliament
and so the government cannot supersede this using exclusive right powers given
by the monarch. It was said that Parliament should only Trigger article 50
because the ECA 1972 is an independent source  of law, then parliament might solely select
once to reject this source. Additionally the EU provided citizen with rights,
and so solely Parliament is authorised to revoke this. The may be a crucial
case as this case is new, the Supreme Court creating a choice in 2017 that
upheld the Diceyan Doctrine, being that Parliament is supreme law creating body
and solely it will create and undo laws as only it could repeal the ECA 1972
and trigger article 50.

However, we should contemplate the position of parliament
before the EU referendum and R v Secretary of State for Exiting the European
Union . throughout this siutation, the Diceyan Doctrine  remained inaccurate through the European  Communities Act 1972 (ECA). The ECA allowed
the U.K to become a member of the European Union. It additionally gave way  EU law superseding United Kingdoms law brought
by Parliament and so, takes precedence over national law. This implies that parliament
is not any longer, the supreme law-making body because the EU currently makes
law that Parliament cannot supervene 
upon. This is an example that shows Diceyan Doctrine of thought being
inaccurate, this account being that parliament is supreme law-making body which
nobody or body like a court will question the validity of law is that the issue
tame 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 was
declared to prevent Spanish fishing owners from selling fish caught in the UK
in Spain. This issue was later to the ECJ, that MSA dishonoured the Treaty of
Rome 1957 that created the European Economic Community. Here is a case of
prevention of  parliamentary act from
having an effect, which demonstrates that parliament isn’t the preeminent t law
creating body because the MSA was declared incompatible with EU law, so the MSA
ought to be negated. It indicates how a court, will questioned the validity of
an act introduced by Parliament. Therefore, this Dicey account of parliamentary
sovereignty  being inaccurate.

However, one might argue that Parliament consented to the
present dominion and can simply repeal the ECA 1972. This would mean that
Parliaments sovereignty isn’t lost and Diceys account would subsequently be
correct. This is currently happening, the European Union (Withdrawal) Bill will
negate ECA and lead to the countries exit from the EU. Once this Bill receives
royal assent, the U.K will now longer be subjugated to EU law and  the European court of justice. Parliament will
once more be the supreme law creating body and no establishment will question
the validity its laws. Therefore, Diceyan doctrine remains correct.

The Human Rights Act (HRA) 1988 doesn’t have an entrenched
standing and, may be amend or repealed supported a parliamentary majority, so
it may be thought of to not be destructive to Parliamentary sovereignty. We must
also 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 Convention
on Human Rights. So parliament is essence is limited and so it is not the
supreme law making body as it has to conform with regulation when passing a
bill. This means that Dicyan Doctrine is in inaccurate.

In addition to this Section 4 of the Act, permits the higher
courts to issue of a declaration of incompatibility to act of Parliament in
relevancy to human rights. This enables courts to think about that the terms of
a statute, acts of public authority that Parliament has passed, and choose
whether or not it’s incompatible with the UK’s commitments underneath the Human
Rights Act 1998. thus, this means that the Diceyan Doctrine isn’t correct as it
goes against the concept that no body like a court will question the validity
of AN act Parliament.

However in terms of declaration of incompatibility, it
merely demonstrates the act of Parliament is contrary with the European
Convention of Human Rights, it doesn’t negate the statute as Parliament then
choses to decide whether or not it needs to amend the act. To illustrate this
more, underneath Section 10 of the HRA, a Minister of the Crown might create
such modification to primary legislation that are viewed as vital to withdraw
the incompatibility. thus it may be argued that the courts cannot strike down
an Act of Parliament as Parliament can repair the problem and so the Diceyan
Doctrine of thought remains correct.

As indicated by the Diceyan Doctrine, Parliament is not bound
 by its predecessors or bind its
successors. this is often largely shown through the Doctrine of implicit
Repeal. This is when Act of Parliament conflicts with an earlier act, the later
Act takes precedence. Through this, we can say thatno parliament is bound or
binding. In Vauxhall homes ltd v port Corporation, the court command that the
Housing Act 1925 impliedly repealed the Acquisition of land act 1919. This
shows the sovereignty of parliament, this being that no parliament will bind a
future parliament. Therefore, the Diceyan Doctrineremains correct.

In conclusion, the school of thought of Parliamentary
sovereignty seems to own come back full circle since Dicey first defined it.
The Diceyan Doctrine had undergone of challenges like the EU. However, there
has additionally been a series of acceptance of the Diceyan Doctrine, like the
Miller case. Yet, in follow the three parts that Diceyan Doctrine has held up. My
final remark is that when the withdrawal bill reacieves royal assent, Dicey
account of Parliamenary will be accurate in theory, but in practise, there
would still be limitation such as the Courts. On this note, I say that
Parliament is sovereign and that the U.K adheres to the account of Dicey 


I'm Simon!

Would you like to get a custom essay? How about receiving a customized one?

Check it out