Parliamentarysovereignty stands as a significant notion in U.K’s constitution.
It originatedat the time of William-III and Mary-II who came to a position of royaltythrough sacrificing their own power and giving it to parliament.1Hence, the monarch’s royal prerogative is directly below parliament within thelate seventeenth and early eighteenth century.2This condition may be found within the Bill of Rights 1688, that regulationsshould be created and/or revoked by parliament.3Dicey’s views of parliamentarySovereignty is that Parliament is the final legislative body and has thecapacity to sanction any law.4The second being that parliament is not to be bound by a forerunner nor bind anupcoming successor.5The last of Dicey’s principles is that no individual or entity might inquirelegitimacy of law.6This essay will discuss if these views are currently accurate or inaccurate.
In the R (on the appliance of Evans) v AttorneyGeneral 2015 UKSC 21, the Attorney General, who is a minister,7exercised his power to veto a court ruling underneath s.53 (2) of the Freedomof Information Act 2000.8Judicial review occurred and it sustained the veto,9then the problem proceeded to the Supreme Court (SP) which overrode the review.10It was expressed there were no grounds for the veto and that Section 53(2) wascontrary to EU law.11 The significance of R v Attorney General is that thejudgment showed that it’s legal for a court to strike down a Minister’sdecision.12The thought-provoking part here, is the power used by the Attorney General, wasfashioned underneath an act of Parliament and the Supreme Court struck thispower down.
13Since the Supreme Court overrode the Judicial review and said that the Ministerhad no ground to exercise his power of veto,14it suggests that it is legitimate for a court to deny Parliament s will, thiswill being Parliament permitting the useof the veto.15It may be argued that the Diceyan Doctrine remains inaccurate because thecourts used their power to deny a Minister his power that was given by an actof parliament,16and so the courts probed the validity of an act of parliament.Furthermore, Jackson v Attorney General contained anidea of judges acting in their official right17.This is portraying that court possessing the ability to strike down an Act of Parliamentin the event of an infringement of constitutional principles.18Thus, a body like a court will question the legitimacy of laws brought by Parliament.
Three law lords insisted that that courts have the capability to strike downlegislation in certain circumstances.19One example is Lord Steyn, he said “it is not unthinkable that circumstancescould arise where the courts may have to qualify a principle established on adifferent hypothesis of constitutionalism. In exceptional circumstancesinvolving an attempt to abolish judicial review or the ordinary role of thecourts”.20This is showing us that the courts do have an ability to question parliamentand the laws it makes revolving the Judiciary.
If Parliament decides toeradicate certain court powers such as judicial review through an act, thecourts have the capability strike down that act.21However, although it’s going to appear as if the court decisions are goingagainst the Diceyan doctrine, the next point is said to be guard the DiceyanDoctrine.In the R (on application of miller) v Secretary ofState for Exiting the European Union, the issue here was that Governmentattempted to utilise exclusive powers known as Prerogative powers to triggerarticle 50.22The question here was if these powers might be used to trigger article 50.23The Supreme Court recognised that there was a key guideline to do with the UK’sconstitution, this being that Parliament is sovereign and may modify or rescissionof any laws.24The European Communities Act 1972 which carried the UK into the EU25was introduced through an Act and consequently, the ECA 1972 cannot be supersedeusing exclusive powers originating from the monarch.26 TheSupreme Court held that Parliament should only Trigger article 50 because theEuropean Communities Act (ECA) 1972 is an independent source of law impactingthe U.
K27and so parliament might solely select once to reject this source of Law. Inaddition to this, the EU provided citizens with rights, and so solely Parliamentis certified to revoke these rights.28This upheld the Diceyan Doctrine that Parliament is supreme law creating bodyand solely it will create and repeal laws.However, let us reflecton the situation of Parliament before the EU referendum, the Withdrawal Billand R v Secretary of State for Exitingthe European Union. As a result, the Diceyan Doctrine remained inaccuratethrough the ECA 1972.29 TheECA allowed the U.K to become a member of the European Union.
30 TheECA also resulted in EU law superseding United Kingdom’s law brought by Parliamentand so, it is prioritised over domestic law31.This implies that parliament is no longer, the supreme legislator as the EUpresently makes law that Parliament cannot supervene upon.In R (Factortame Ltd) v Secretary of State forTransport, the legitimacy of the Merchant Shipping Act (MSA) 1988 wasaddressed by the European Court of Justice.32.The MSA would protect the British fishing industry by stopping foreign nationalexploiting British fish stocks by having British Owners only being entitled toshare of fishing quotas33. Thisissue was later brought to the House of Lords.34It was recognised that the supremacy principle of applying EU law over UK law,and to disregard any national rules of principles such as sovereignty.
35Here is a case of the prevention of a parliamentary act from having an impact,which validates that parliament is not the preeminent law making body becausethe MSA, an act of parliament was declared incompatible with EU law36,so the MSA ought to be negated. It indicates how a court, will question thevalidity of an act introduced by Parliament. However, one mightargue that Parliament consented to the present dominion and can merely repealthe ECA 1972.37This would result in Parliament’s sovereignty not being lost and Dicey’saccount would subsequently be correct. This is the current scene in the UK. TheEuropean Union (Withdrawal) Bill will negate ECA38and lead to the U.
K’s exit from the EU. Once this Bill receives royal assent,39the U.K will no longer be subjugated to EU law and the European court ofjustice.40Parliament will once more be the supreme law creating body and no establishmentwill question the validity its laws. In addition to thisSection 4 of the Human Rights Act, permits the upper courts to issue of adeclaration of incompatibility to act of Parliament in relevancy to humanrights.41This enables courts to think about that the terms of a statute, acts of publicauthority that Parliament has passed or agreed with, and choose if it’sincompatible with the UK’s commitments underneath the Human Rights Act 1998.42Thus, this means that the Diceyan Doctrine isn’t correct as it goes against theconcept that no body like a court will question the legitimacy of an act Parliament.
However, in terms ofthe declaration of incompatibility, it merely establishes the act of Parliamentis contrary with the European Convention of Human Rights, it does not negatethe statute as Parliament then decides whether it needs to amend the act.43To illustrate this more, under Section 10 of the Human Rights Act, a Ministerof the Crown might modify primary legislation that is vital to withdraw theincompatibility.44Thus, it may be argued that the courts cannot strike down an Act, they alertParliament and as a result, can amend the incompatible act.As indicated by theDiceyan Doctrine, Parliament cannot be bound by its forerunners and it cannotbind its future self.45This is often shown through the Doctrine of implicit Repeal.46This is when Act of Parliament conflicts with a former act, the later Act takesprecedence.
47Through this, we can say that no parliament is bound or binding. In, Vauxhall Estates LTD v Liverpool Corporation:19321 KB 733 the court said thatthe Housing Act 1925 impliedly repealed the Acquisition of land act 1919.48 Thisshows the sovereignty of Parliament, this being that no Parliament will bebound a forerunner or bind a future Parliament. In conclusion, theDiceyan Doctrine has experienced encounters that goes against it, one majorencounter being the EU and how over that 50% of UK laws that have economicimpact come from the EU.
49However, there has been a run of positive reception of the Diceyan Doctrine andsovereignty in general, such as the doctrine of Implied Repeal. My final remarkis that when the withdrawal bill receives royal assent,50Dicey’s account of Parliamentary will be accurate in theory, but in practice,there would still be limits such as the Judiciary. On this note, I say thatParliament is sovereign and that the U.K adheres to the accounts of Dicey.1Jeffrey Goldsworth, The Sovereignty of Parliament: History and Philosophy(first ed 1999)2Mark Elliot & Robert Thomas, Public law (3rd Edn, OUP, 2017)3Ibid n2 4 AVDicey, Law of the Constitution, (8th edn, Macmillian 1915)5ibid6Ibid 7Ibid n28 R(on the appliance of Evans) v Attorney General 2015 UKSC 219Teresa Lucaelli “The ConstitutionalAspect” in Evans v Attorney General10Alison. Young, ‘R (Evans) v Attorney General 2015 UKSC 21 – the Anisminic ofthe 21st Century?’ U.K.
Const. L. Blog
and Others(No. 5) 1999 3 W.L.R. 10622000 1 A.C.
52433 MerchantShipping Act 1988 c.1234Ibid 35Ibid n25 36Ibid n237Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)38William James, Michael Holden, ‘CharmingBastard’ David Davis to lead Brexit talks, Reuters 2017