Parliamentarysovereignty is a very important concept in United Kingdom constitution. It cameabout at the time of William-III and Mary-II who came to a position of royaltythrough sacrificing their own power and giving it to parliament.1 Asa result, the monarch’s power of royal prerogative is underneath parliamentwithin the late seventeenth and early eighteenth century.2This condition may be found within the Bill of Rights 1688, that expressed lawsshould be created or revoked by Parliament and not by the Monarch alone.3Dicey’s views ofparliamentary Sovereignty is that parliament is the final law-making establishmentand can sanction any law.
4 Thesecond being is that no parliament is to be bound by a forerunner nor bind afuture successor.5The last of Dicey’s principles is that no individual or body might inquire orquestion the validity and legitimacy 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 upheld the veto,9then the problem proceeded to the Supreme Court (SP) that overrode the review.10 Itwas expressed there were no grounds for the veto and that Section 53(2) wascontrary to EU law.
11 The significance ofthe R v Attorney General is that thejudgment showed that it’s lawful for a higher court who possess powers of judicialreview to strike down a Government Minister’s decision.12 Theinteresting part here, is the power used by the Attorney General that was struckdown by the court, was created underneath an act of Parliament.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 Parliaments will, thiswill being Parliament permitting the use of the veto.
15It may be argued that the Diceyan Doctrine isn’t correct because the courtsused their power to deny a Minister his power that was expressly given by anact of parliament,16and so the courts questioned the validity of an act of parliament.Furthermore, Jackson v Attorney General contained anidea of judges acting in their official boundary17. Whatthis means is that the courts might have the ability to strike down an Act ofParliament in the event of a violation of constitutional principles.18Thus, a body like a court will question the legitimacy of laws brought byParliament. In this case, three law lords urged that that courts had theability to strike down legislation.19 Oneexample is Lord Steyn, he said ” it is not unthinkable that circumstances couldarise 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 means that the courts do have an ability to question parliament and thelaws it makes revolving the Judiciary. If Parliament was to remove certaincourt powers such as judicial review through an act, the courts have the abilitystrike down that act.21However, although it’s going to appear as if the court decisions are goingagainst the Diceyan doctrine, the following is said to be protection to Dicey’sDoctrine.In the R (on application of miller) v Secretary ofState for Exiting the European Union, the problem was that the governmentutilising exclusive powers known as Prerogative powers to trigger article 50.22 Thequestion here was if these powers could be used to trigger article 50.23The Supreme Court recognised that there was an important guideline of the UK’sconstitution, this being that Parliament is sovereign and might amend or repeallaws.24The European Communities Act 1972 which brought the UK into the EU25was introduced through an Act and so the government cannot supersede this usingexclusive powers given by the monarch.26It was said that Parliament should only Trigger article 50 because the EuropeanCommunities Act (ECA) 1972 is an independent source of law,27then parliament might solely select once to reject this source.
Additionally,the EU provided citizens with rights, and so solely Parliament is authorised torevoke this.28This upheld the Diceyan Doctrine that Parliament is supreme law creating bodyand solely it will create and undo laws.However, we should considerthe position of parliament before the EU referendum and R v Secretary of State for Exiting the European Union. Throughoutthis situation, the Diceyan Doctrine remained inaccurate through the ECA 1972 .29The ECA allowed the U.K to become a member of the European Union.
30It additionally gave way EU law superseding United Kingdom’s law brought byParliament and so, takes precedence over national law31.This implies that parliament is not any longer, the supreme law-making bodybecause the EU currently makes the law that Parliament cannot supervene upon it.In R (Factortame Ltd) v Secretary of State forTransport, the European Court of Justice (ECJ) addressed the legitimacy ofthe Merchant Shipping Act (MSA) 1988.32.The MSA would protect the British Fishing industry by preventing foreignnational exploiting British fish stocks33. This was considered discriminatory.
34 Thisissue was later brought to the House of Lords.35 Itwas that the supremacy principle of applying EU law over UK law, and to ignoreany national rules of principles such as sovereignty.36Here is a case of the prevention of parliamentary act from having an effect,which demonstrates that parliament isn’t the preeminent law creating bodybecause the MSA, an act of parliament was declared incompatible with EU law37,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 simply repealthe ECA 1972.
38This would mean that Parliament’s sovereignty isn’t lost and Dicey’s accountwould subsequently be correct. This is currently happening, the European Union(Withdrawal) Bill will negate ECA39and lead to the U.K’s exit from the EU.
Once this Bill receives royal assent,40the U.K will no longer be subjugated to EU law and the European court ofjustice.41Parliament 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 higher courts to issue of adeclaration of incompatibility to act of Parliament in relevancy to humanrights.42This 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 1998.43 Thus,this means that the Diceyan Doctrine isn’t correct as it goes against theconcept that no body like a court will question the validity of an actParliament.
However, in terms ofthe declaration of incompatibility, it merely demonstrates the act ofParliament is contrary with the European Convention of Human Rights, it doesn’tnegate the statute as Parliament then chooses to decide if it needs to amendthe act.44To illustrate this more, underneath Section 10 of the Human Rights Act, aMinister of the Crown might create such modification to primary legislationthat is viewed as vital to withdraw the incompatibility.45 Thus,it may be argued that the courts cannot strike down an Act, they alert Parliamentand as a result, can amend the incompatible act.
As indicated by theDiceyan Doctrine, Parliament is not bound by its predecessors or bind itssuccessors.46This is often largely shown through the Doctrine of implicit Repeal.47This is when Act of Parliament conflicts with an earlier act, the later Acttakes precedence.48Through this, we can say that no parliament is bound or binding. In, Vauxhall Estates LTD v Liverpool Corporation:19321 KB 733 the court commandthat the Housing Act 1925 impliedly repealed the Acquisition of land act 1919.
49This shows the sovereignty of parliament, this being that no parliament will bebound a forerunner or bind a future parliament. In conclusion,Parliamentary sovereignty seems to come back in a full circle since Dicey firstdefined it.50The Diceyan Doctrine had undergone challenges, one major challenge being the EUand how over that 50% of UK laws that have economic impact come from the EU.
51 However,there has additionally been a series of acceptance of the Diceyan Doctrine, suchas the doctrine of implied repeal. My final remark is that when the withdrawalbill receives royal assent,52Dicey’s account of Parliamentary will be accurate in theory, but in practice,there would still be limited such as the Judiciary. On this note, I say thatParliament is sovereign and that the U.K adheres to the accounts of Dicey.
1 JeffreyGoldsworth, The Sovereignty of Parliament: History and Philosophy (first ed1999)2 MarkElliot & Robert Thomas, Public law (3rd Edn, OUP, 2017)3 Ibidn2 ME4 Ibidn25 Ibidn2 6 Ibidn27 Ibidn28 R(on the appliance of Evans) v Attorney General 2015 UKSC 219 TeresaLucaelli “The ConstitutionalAspect” in Evans v Attorney General10 Alison.Young, ‘R (Evans) v Attorney General 2015 UKSC 21 – the Anisminic of the 21stCentury?’ U.K. Const.
L. Blog (31st Mar 2015)11 PublicLaw for Everyone: Professor Mark Elliott Blog12 Ibidn8 Tesea L13 KarrenMcCullagh, “A tangled web of access to information: reflections on R (onthe application of Evans) and another v Her Majesty’s Attorney General”,(2015)14 Ibidn815 Ibidn216 Ibidn217 TomMullen (2007). “Reflections on Jackson v Attorney General: questioningsovereignty”, Volume 21, Issue 118 Ibidn1519 TheEU Bill and Parliamentary Sovereignty – European Scrutiny Committee: Divergentopinion on the scope of Parliamentary sovereignty20 R(Jackson) v Attorney General 2006 1 AC(262), (102)21 Ibid22 R(On the Application of Miller) v Secretary of State for Exiting the EuropeanUnion 2017 UKSC 523 Ibid24 Ibidn2025 AlisdairGillespie and Siobahn Weare, The English legal System, (6th Edn, OUP 2015)26 Ibidn2227 Ibidn22 Miller 28 Ibidn2229 Ibidn230 Ibidn23 Alissia 31 Ibidn2332 R(Factortame Ltd) v Secretary of State for Transport 2003 Q.B.
381 2002 3W.L.R.
110433 Ibid34ibid35 Ibidn236 Ibidn23 alisddair37 Ibid29 factortame 38 JeffreyGoldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)39 WilliamJames, Michael Holden, ‘CharmingBastard’ David Davis to lead Brexit talks, Reuters 201740 Ibidn2 ME41 Ibidn3442 NickBarber International Journal of Constitutional Law, The afterlife ofParliamentary sovereignty, Volume 9, Issue 1, 1 January 201143 ibid44 HumbertoÁvila, Certainty in Law, 1st ed,45 Ibid46 Ibidn247 Ibidn248 Ibidn249 Vauxhall Estates LTD v LiverpoolCorporation:1932 1 KB 73350 Ibidn251 Houseof Commons Library, research paper 10/62, ‘How much legislation comes from Europe’52 Ibidn2