Parliamentary sovereignty stands as a significant notion in U.K’s constitution. It originated 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 Hence, the monarch’s royal prerogative is directly below parliament within the late seventeenth and early eighteenth century.2 This condition may be found within the Bill of Rights 1688, that regulations should be created and/or revoked by parliament.3
Dicey’s views of parliament ary Sovereignty is that Parliament is the final legislative body and has the capacity to sanction any law.4 The second being is that parliament is not to be bound by a forerunner nor bind an upcoming successor.5 The last of Dicey’s principles is that no individual or entity might inquire 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 sustained the veto,9 then the problem proceeded to the Supreme Court (SP) which 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 R v Attorney General is that the judgment showed that it’s legal for a court to strike down a Minister’s decision.12 The thought-provoking part here, is the power used by the Attorney General, was fashioned underneath an act of Parliament and the Supreme court struck this power down.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 Parliament s will, this will being Parliament permitting the use of the veto.15 It may be argued that the Diceyan Doctrine remains inaccurate because the courts used their power to deny a Minister his power that was given by an act of parliament,16 and so the courts probed the validity of an act of parliament.
Furthermore, Jackson v Attorney General contained an idea of judges acting in their official right17. This is portraying that court possessing the ability to strike down an Act of Parliament in the event of an infringement of constitutional principles.18 Thus, 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 down legislation in certain circumstances.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 is showing us that the courts do have an ability to question parliament and the laws it makes revolving the Judiciary. If Parliament decides to eradicate certain court powers such as judicial review through an act, the courts have the capability strike down that act.21 However, although it’s going to appear as if the court decisions are going against the Diceyan doctrine, the next point is said to be guard the Diceyan Doctrine.
In the R (on application of miller) v Secretary of State for Exiting the European Union, the issue here was that Government attempted to utilise exclusive powers known as Prerogative powers to trigger article 50.22 The question here was if these powers might be used to trigger article 50.23 The Supreme Court recognised that there was a key guideline to do with the UK’s constitution, this being that Parliament is sovereign and may modify or rescission of any laws.24 The European Communities Act 1972 which carried the UK into the EU25 was introduced through an Act and consequently, the ECA 1972 cannot be supersede using exclusive powers originating from the monarch.26 The Supreme Court held that Parliament should only Trigger article 50 because the European Communities Act (ECA) 1972 is an independent source of law impacting the U.K27 and so parliament might solely select once to reject this source of Law. In addition to this, the EU provided citizens with rights, and so solely Parliament is certified to revoke these rights.28 This upheld the Diceyan Doctrine that Parliament is supreme law creating body and solely it will create and repeal laws.
However, let us reflect on the situation of Parliament before the EU referendum, the Withdrawal Bill and R v Secretary of State for Exiting the European Union. As a result, 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 The ECA also resulted in EU law superseding United Kingdom’s law brought by Parliament and so, it is prioritised over domestic law31. This implies that parliament is no longer, the supreme legislator as the EU presently makes law that Parliament cannot supervene upon.
In R (Factortame Ltd) v Secretary of State for Transport, the legitimacy of the Merchant Shipping Act (MSA) 1988 was addressed by the European Court of Justice.32. The MSA would protect the British fishing industry by stopping foreign national exploiting British fish stocks33. This issue was later brought to the House of Lords.34 It was recognised that the supremacy principle of applying EU law over UK law, and to disregard any national rules of principles such as sovereignty.35 Here 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 because the 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 the validity of an act introduced by Parliament.
However, one might argue that Parliament consented to the present dominion and can merely repeal the ECA 1972.37 This would result in Parliament’s sovereignty not being lost and Dicey’s account would subsequently be correct. This is the current scene in the UK. The European Union (Withdrawal) Bill will negate ECA38 and lead to the U.K’s exit from the EU. Once this Bill receives royal assent,39 the U.K will no longer be subjugated to EU law and the European court of justice.40 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 upper courts to issue of a declaration of incompatibility to act of Parliament in relevancy to human rights.41 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 1998.42 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 legitimacy of an act Parliament.
However, in terms of the declaration of incompatibility, it merely establishes the act of Parliament is contrary with the European Convention of Human Rights, it does not negate the statute as Parliament then decides whether it needs to amend the act.43 To illustrate this more, under Section 10 of the Human Rights Act, a Minister of the Crown might modify primary legislation that is vital to withdraw the incompatibility.44 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 cannot be bound by its forerunners and it cannot bind its future self.45 This is often shown through the Doctrine of implicit Repeal.46 This is when Act of Parliament conflicts with a former act, the later Act takes precedence.47 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 said that the Housing Act 1925 impliedly repealed the Acquisition of land act 1919.48 This shows the sovereignty of Parliament, this being that no Parliament will be bound a forerunner or bind a future Parliament.
In conclusion, the Diceyan Doctrine has experienced encounters that goes against it, one major encounter being the EU and how over that 50% of UK laws that have economic impact come from the EU.49 However, there has been a run of positive reception of the Diceyan Doctrine and sovereignty in general, such as the doctrine of Implied Repeal. My final remark is that when the withdrawal bill receives royal assent,50 Dicey’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 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
35 Ibid n25
36 Ibid n2
37 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)
38 William James, Michael Holden, ‘Charming Bastard’ David Davis to lead Brexit talks, Reuters 2017
39 Ibid n2
40 Ibid n2
41 Nick Barber International Journal of Constitutional Law, The afterlife of Parliamentary sovereignty, Volume 9, Issue 1, 1 January 2011
45 Ibid n2
46 Ibid n2
47 Ibid n2
48 Vuxhall Estates LTD v Liverpool Corporation:1932 1 KB 733
49 House of Commons Library, research paper 10/62, ‘How much legislation comes from Europe’
50 Ibid n2