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 can discuss if these views are currently accurate or inaccurate.In the R (on the applianceof Evans) v Attorney General 2015 UKSC 21, the Attorney General, who is aminister,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 this judgment is that it showed that it’slawful for a higher court who possess powers of judicial review, to strike downa Government Minister’s decision.12 Theinteresting part here is that these powers used in the decision the courtstruck down, were created underneath the powers of Parliament.13Since the Supreme Court overrode the Judicial review and set 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 be Parliament permitting the use of the veto.
It may be argued that theDiceyan Doctrine isn’t correct because the courts used their power to deny aMinister his power that was expressly given by an act of parliament, and so thecourts questioned the validity of an act of parliament.Furthermore, Jackson vAttorney General contained a idea of judges acting in their official boundary15. 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.16Thus, 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.
17 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”.18This 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.
19However, although it’s going to appear as if the court decisions are goingagainst sovereignty and the Diceyan doctrine of thought, the case R (On theappliance of Miller) v Secretary of State for Exiting the European Union 2017UKSC 5 shows that the court’s call upheld the Diceyan Doctrine.In the R v Secretaryof State for Exiting the European Union, the problem was that the governmentutilising exclusive powers known as Prerogative powers to trigger article 50.20 Thequestion here was if these powers could be used to trigger article 50.21The Supreme Court recognised that there was an important guideline of the UK’sconstitution, this being that Parliament is sovereign and might amend or repeallaws.
22The European Communities Act 1972 which brought the UK into the EU23was introduced through an Act and so the government cannot supersede this usingexclusive powers given by the monarch.24It was said that Parliament should only Trigger article 50 because the ECA 1972is an independent source of law,25then parliament might solely select once to reject this source. Additionally,the EU provided citizens with rights, and so solely Parliament is authorised torevoke this.
26This upheld the Diceyan Doctrine that Parliament is supreme law creating bodyand solely it will create and undo laws.However, we shouldcontemplate the position of parliament before the EU referendum and R vSecretary of State for Exiting the European Union. Throughout this situation,the Diceyan Doctrine remained inaccurate through the European Communities Act1972 (ECA).
The ECA allowed the U.K to become a member of the European Union.27It additionally gave way EU law superseding United Kingdom’s law brought byParliament and so, takes precedence over national law28.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 for Transport, the European Court of Justice (ECJ)addressed the legitimacy of the Merchant Shipping Act (MSA) 1988.
29 Itwas declared to prevent Spanish fishing owners from selling fish caught in theUK in Spain.30This issue was later in the ECJ, that MSA dishonoured the Treaty of Rome 1957that created the European Economic Community.31Here 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 was declared incompatible with EU law32,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.
33This 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 ECA34and lead to the countries exit from the EU. Once this Bill receives royalassent,35the U.K will no longer be subjugated to EU law and the European court ofjustice. Parliament will once more be the supreme law creating body and noestablishment will question the validity its laws. In addition to thisSection 4 of the Act, permits the higher courts to issue of a declaration ofincompatibility to act of Parliament in relevancy to human rights.36This enables courts to think about that the terms of a statute, acts of publicauthority that Parliament has passed, and choose if it’s incompatible with theUK’s commitments underneath the Human Rights Act 1998.37 Thus,this means that the Diceyan Doctrine isn’t correct as it goes against theconcept that nobody 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.38To illustrate this more, underneath Section 10 of the HRA, a Minister of theCrown might create such modification to primary legislation that is viewed asvital to withdraw the incompatibility.39 Thus,it may be argued that the courts cannot strike down an Act, they caution Parliamentand as a result, can amend the incompatible act.As indicated by theDiceyan Doctrine, Parliament is not bound by its predecessors or bind itssuccessors.
40This is often largely shown through the Doctrine of implicit Repeal.41This is when Act of Parliament conflicts with an earlier act, the later Acttakes precedence.42Through 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 1919.43This shows the sovereignty of parliament, this being that no parliament willbind a future parliament.
In conclusion,Parliamentary sovereignty seems to own come back full circle since Dicey firstdefined it. The Diceyan Doctrine had undergone challenges like the EU. However,there has additionally been a series of acceptance of the Diceyan Doctrine,like the Miller case. Yet, to follow the three parts that Diceyan Doctrine hasheld up. My final remark is that when the withdrawal bill receives royalassent, 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 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 Ibidn24 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 Ibidn813 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 Ibidn816 TomMullen (2007).
“Reflections on Jackson v Attorney General: questioningsovereignty”, Volume 21, Issue 117 TheEU Bill and Parliamentary Sovereignty – European Scrutiny Committee: Divergentopinion on the scope of Parliamentary sovereignty18 R(Jackson) v Attorney General 2006 1 AC(262), (102)19 Ibid20 R(On the Application of Miller) v Secretary of State for Exiting the EuropeanUnion 2017 UKSC 521 Ibid22 Ibidn1723 AlisdairGillespie and Siobahn Weare, The English legal System, (6th Edn, OUP 2015)24 Ibidn1725 Ibidn1726 Ibidn1727 Ibidn2328 Ibidn2329 R(Factortame Ltd) v Secretary of State for Transport 2003 Q.B. 381 2002 3W.L.
R. 110430 NickBarber International Journal of Constitutional Law, The afterlife ofParliamentary sovereignty, Volume 9, Issue 1, 1 January 2011,31 Ibidn2332 Ibid2933 JeffreyGoldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)34 WilliamJames, Michael Holden, ‘CharmingBastard’ David Davis to lead Brexit talks, Reuters 201735 Ibidn2 36 NickBarber International Journal of Constitutional Law, The afterlife ofParliamentary sovereignty, Volume 9, Issue 1, 1 January 201137 ibid38 HumbertoÁvila, Certainty in Law, 1st ed,39 Ibid1840 Ibidn241 Ibidn242 Ibidn243 Vauxhall Estates LTD v LiverpoolCorporation:1932 1 KB 733