Parliamentary sovereignty is a very important concept in United Kingdom constitution. It came about at the time of William-III and Mary-II who came to a position of royalty through sacrificing their own power and giving it to parliament.1 As a result, the monarch’s power of royal prerogative is underneath parliament within the late seventeenth and early eighteenth century.2 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.3
Dicey’s views of parliamentary Sovereignty is that parliament is the final law-making establishment and can sanction any law.4 The second being is that no parliament is to be bound by a forerunner nor bind a future successor.5 The last of Dicey’s principles is that no individual or body might inquire or question the validity and legitimacy of law.6 This essay will discuss if these views are currently accurate or inaccurate.
In the R (on the appliance of Evans) v Attorney General 2015 UKSC 21, the Attorney General, who is a minister,7 exercised his power to veto a court ruling underneath s.53 (2) of the Freedom of Information Act 2000.8 Judicial review occurred and it upheld the veto,9 then the problem proceeded to the Supreme Court (SP) that overrode the review.10 It was expressed there were no grounds for the veto and that Section 53(2) was contrary to EU law.11
The significance of the R v Attorney General is that the judgment showed that it’s lawful for a higher court who possess powers of judicial review to strike down a Government Minister’s decision.12 The interesting part here, is the power used by the Attorney General that was struck down by the court, was created underneath an act of Parliament.13 Since the Supreme Court overrode the Judicial review and said that the Minister had no ground to exercise his power of veto,14 it suggests that it is legitimate for a court to deny Parliaments will, this will being Parliament permitting the use of the veto.15 It may be argued that the Diceyan Doctrine isn’t correct because the courts used their power to deny a Minister his power that was expressly given by an act of parliament,16 and so the courts questioned the validity of an act of parliament.
Furthermore, Jackson v Attorney General contained an idea of judges acting in their official boundary17. What this means is that the courts might have the ability to strike down an Act of Parliament in the event of a violation of constitutional principles.18 Thus, a body like a court will question the legitimacy of laws brought by Parliament. In this case, three law lords urged that that courts had the ability to strike down legislation.19 One example is Lord Steyn, he said ” 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”.20 This means that the courts do have an ability to question parliament and the laws it makes revolving the Judiciary. If Parliament was to remove certain court powers such as judicial review through an act, the courts have the ability strike down that act.21 However, although it’s going to appear as if the court decisions are going against the Diceyan doctrine, the following is said to be protection to Dicey’s Doctrine.
In the R (on application of miller) v Secretary of State for Exiting the European Union, the problem was that the government utilising exclusive powers known as Prerogative powers to trigger article 50.22 The question here was if these powers could be used to trigger article 50.23 The Supreme Court recognised that there was an important guideline of the UK’s constitution, this being that Parliament is sovereign and might amend or repeal laws.24 The European Communities Act 1972 which brought the UK into the EU25 was introduced through an Act and so the government cannot supersede this using exclusive powers given by the monarch.26 It was said that Parliament should only Trigger article 50 because the European Communities Act (ECA) 1972 is an independent source of law,27 then parliament might solely select once to reject this source. Additionally, the EU provided citizens with rights, and so solely Parliament is authorised to revoke this.28 This upheld the Diceyan Doctrine that Parliament is supreme law creating body and solely it will create and undo laws.
However, we should consider the position of parliament before the EU referendum and R v Secretary of State for Exiting the European Union. Throughout this situation, the Diceyan Doctrine remained inaccurate through the ECA 1972.29 The ECA allowed the U.K to become a member of the European Union.30 It additionally gave way EU law superseding United Kingdom’s law brought by Parliament and so, takes precedence over national law31. This implies that parliament is not any longer, the supreme law-making body because the EU currently makes the law that Parliament cannot supervene upon it.
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) 1988.32. The MSA would protect the British Fishing industry by preventing foreign national exploiting British fish stocks33. This was considered discriminatory.34 This issue was later brought to the House of Lords.35 It was that the supremacy principle of applying EU law over UK law, and to ignore any national rules of principles such as sovereignty.36 Here is a case of the prevention of parliamentary act from having an effect, which demonstrates that parliament isn’t the preeminent law creating body because 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 the validity of an act introduced by Parliament.
However, one might argue that Parliament consented to the present dominion and can simply repeal the ECA 1972.38 This would mean that Parliament’s sovereignty isn’t lost and Dicey’s account would subsequently be correct. This is currently happening, the European Union (Withdrawal) Bill will negate ECA39 and lead to the U.K’s exit from the EU. Once this Bill receives royal assent,40 the U.K will no longer be subjugated to EU law and the European court of justice.41 Parliament will once more be the supreme law creating body and no establishment will question the validity its laws.
In addition to this Section 4 of the Human Rights Act, permits the higher courts to issue of a declaration of incompatibility to act of Parliament in relevancy to human rights.42 This enables courts to think about that the terms of a statute, acts of public authority that Parliament has passed or agreed with, and choose if it’s incompatible 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 the concept that no body like a court will question the validity of an act Parliament.
However, in terms of the 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 chooses to decide if it needs to amend the act.44 To illustrate this more, underneath Section 10 of the Human Rights Act, a Minister of the Crown might create such modification to primary legislation that is viewed as vital to withdraw the incompatibility.45 Thus, it may be argued that the courts cannot strike down an Act, they alert Parliament and as a result, can amend the incompatible act.
As indicated by the Diceyan Doctrine, Parliament is not bound by its predecessors or bind its successors.46 This is often largely shown through the Doctrine of implicit Repeal.47 This is when Act of Parliament conflicts with an earlier act, the later Act takes precedence.48 Through this, we can say that no parliament is bound or binding. In, Vauxhall Estates LTD v Liverpool Corporation:1932 1 KB 733 the court command that the Housing Act 1925 impliedly repealed the Acquisition of land act 1919.49 This shows the sovereignty of parliament, this being that no parliament will be bound a forerunner or bind a future parliament.
In conclusion, Parliamentary sovereignty seems to come back in a full circle since Dicey first defined it.50 The Diceyan Doctrine had undergone challenges, one major challenge being the EU and 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, such as the doctrine of implied repeal. My final remark is that when the withdrawal bill receives royal assent,52 Dicey’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 that Parliament is sovereign and that the U.K adheres to the accounts of Dicey.
1 Jeffrey Goldsworth, The Sovereignty of Parliament: History and Philosophy (first ed 1999)
2 Mark Elliot & Robert Thomas, Public law (3rd Edn, OUP, 2017)
3 Ibid n2
4 Ibid n2
5 Ibid n2
6 Ibid n2
7 Ibid n2
8 R (on the appliance of Evans) v Attorney General 2015 UKSC 21
9 Teresa Lucaelli “The Constitutional Aspect” in Evans v Attorney General
10 Alison. Young, ‘R (Evans) v Attorney General 2015 UKSC 21 – the Anisminic of the 21st Century?’ U.K. Const. L. Blog (31st Mar 2015)
12 Ibid n9
13 Karren McCullagh, “A tangled web of access to information: reflections on R (on the application of Evans) and another v Her Majesty’s Attorney General”, (2015)
14 Ibid n8
15 Ibid n2
16 Ibid n2
17 Tom Mullen (2007). “Reflections on Jackson v Attorney General: questioning sovereignty”, Volume 21, Issue 1
18 Ibid n2
19 R (Jackson) v Attorney General 2006 1 AC
20 R (Jackson) v Attorney General 2006 1 AC (262), (102)
22 R (On the Application of Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5
25 Alisdair Gillespie and Siobahn Weare, The English legal System, (6th Edn, OUP 2015)
26 Ibid n22
27 Ibid n22
28 Ibid n22
29 Ibid n2
30 Ibid n25
31 Ibid n25
32 Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 5) 1999 3 W.L.R. 1062
2000 1 A.C. 524
36 Ibid n25
37 Ibid n2
38 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)
39 William James, Michael Holden, ‘Charming Bastard’ David Davis to lead Brexit talks, Reuters 2017
40 Ibid n2
41 Ibid n2
42 Nick Barber International Journal of Constitutional Law, The afterlife of Parliamentary sovereignty, Volume 9, Issue 1, 1 January 2011
46 Ibid n2
47 Ibid n2
48 Ibid n2
49 Vuxhall Estates LTD v Liverpool Corporation:1932 1 KB 733
50 Ibid n2
51 House of Commons Library, research paper 10/62, ‘How much legislation comes from Europe’
52 Ibid n2