Parliamentary sovereignty stands as an significantnotion in United Kingdom constitution. It originated atthe time ofWilliam-III and Mary-II who came to a position of royalty through sacrificingtheir own power and giving itto parliament.1 Asa result, the monarch’s authority of royal prerogative is under parliament within the lateseventeenth andearly eighteenth century.2This condition maybe found within the Billof Rights 1688, that regulations should be created and/or revoked by Parliament and notby the Monarch alone.3Dicey’s views of parliamentary Sovereignty is that parliament is the final law-making institution and has the ability sanction any law.4The second being is that no parliament is to be bound by a forerunner nor bind an upcoming successor.5 The last of Dicey’sprinciples is that no individual or body might inquire or question the validityand legitimacy of law.
6 This essay will discussif these views arecurrently 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 toveto a court rulingunderneath s.53 (2) of the Freedomof Information Act2000.8Judicial review occurred and itsustained the veto,9then the problem proceededto the Supreme Court(SP) which overrodethe review.10It was expressed therewere no grounds forthe veto and that Section 53(2) was contrary to EU law.11 Thesignificance of R v Attorney General is that the judgment showed that it’s legalfor a higher courtwho to strikedown a GovernmentMinister’s decision.12 The thought-provoking part here, is the power used by the AttorneyGeneral that was struck down by the Supreme Court, was fashioned underneath an act ofParliament.
13Since the Supreme Courtoverrode the Judicial review and saidthat the Minister had no ground to exercise his power of veto,14it suggests that it islegitimate for a court to deny Parliaments will, this will being Parliament permitting the use of the veto.15It may be arguedthat the Diceyan Doctrine remains inaccuate because thecourts used their power todeny a Minister his power that was Emn given by an act of parliament,16and so the courts probed the validity of an act of parliament.Furthermore, Jacksonv Attorney General containedan idea of judges actingin their official boundary17. What this means is that the courts may have the ability to strike down an Act of Parliament in the event of an infringement of constitutional principles.18Thus, a body like a courtwill question the legitimacy of laws brought by Parliament.
In this case, three law lords urged that that courts have the capability to strike down legislation.19One example is Lord Steyn, he said ” it is not unthinkable that circumstances could arise where thecourts may have to qualify a principle establishedon a different hypothesisof constitutionalism. Inexceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts”.20This means that thecourts 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 throughan act, the courts have the capability strike down that act.
21However, although it’sgoing to appear asif the courtdecisions are goingagainst the Diceyandoctrine, the next pointis said to be guard the Diceyan Doctrine.In the R (on application of miller) v Secretary of State for Exitingthe European Union, the issue here is the government utilisingexclusive powers known asPrerogative powers totrigger article 50.22 The question here was if these powers might be usedto trigger article 50.23The Supreme Court recognised that there was an important guideline of the UK’sconstitution, this beingthat Parliament issovereign and might amendor repeal laws.24 The European Communities Act 1972 which carriedthe UK into the EU25was introduced through anAct and consequently, the government cannot supersede the ECAusing exclusive powers given by the monarch.
26It was said thatParliament shouldonly Trigger article 50because theEuropean Communities Act(ECA) 1972 is an independent source of law,27 then parliament might solely select once to reject this source of Law. In addition tothis, the EUprovided citizens with rights, and so solely Parliament is authorised to revoke these rights .28 This upheld the Diceyan Doctrine that Parliament issupreme law creating bodyand solely it willcreate and repeal laws.
However,we should reflect the situationof Parliament before theEU referendum, the Withdrawal Billand R v Secretary of State for Exiting the European Union. Through this situation, the DiceyanDoctrine remained inaccurate throughthe ECA 1972.29 The ECA allowed the U.
Kto 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 parliamentis not, any longer,the supreme law-makingbody because the EU presentlymakes the law that Parliamentcannot supervene upon it.In R (Factortame Ltd) v Secretary of State for Transport, theEuropean Court of Justice (ECJ) addressed the legitimacy of the Merchant Shipping Act (MSA) 1988.32.
The MSA wouldprotect the BritishFishing industry by stopping foreign nationalexploiting British fishstocks33. This was considered discriminatory.34This issue was later brought to the House of Lords.35It was recognised that the supremacyprinciple of applying EU lawover UK law, and to disregard any national rulesof principles such as sovereignty.
36 Here is a case of the prevention of a parliamentary act from havingan impact, which validates that parliament is notthe preeminent law making body because the MSA, an act of parliament wasdeclared incompatiblewith 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 merely repeal the ECA 1972.38 Thiswould result in Parliament’s sovereignty not being lost and Dicey’s account wouldsubsequently be correct.This is the current scene in the UK. The European Union (Withdrawal) Bill will negate ECA39and lead to the U.K’s exitfrom the EU.
Once this Bill receives royal assent,40 the U.K will no longer be subjugated to EU lawand the European court ofjustice.41Parliament will oncemore be the supreme law creating body and no establishment will question thevalidity its laws. In addition to thisSection 4 of the HumanRights Act, permits the upper courts to issue of a declaration ofincompatibility to actof Parliament in relevancyto human rights.42 This enables courts to think about that the terms of a statute, acts of public authoritythat Parliament has passed oragreed with, and chooseif it’s incompatible with the UK’s commitments underneath the HumanRights Act 1998.43Thus, this means thatthe Diceyan Doctrineisn’t correct as it goes against the concept thatno body like a courtwill question the legitimacy of an act Parliament.However,in terms of thedeclaration of incompatibility,it merely establishes the act of Parliament is contrary with the European Convention of Human Rights, it does notnegate the statute as Parliamentthen decides whether it needs to amend the act.44To illustrate thismore, under Section 10 of the Human Rights Act, a Minister of the Crown might modify primary legislation that is vital to withdraw the incompatibility.
45 Thus, it may be argued thatthe courts cannotstrike down an Act,they alertParliament and as a result,can amend the incompatible act.As indicated by the Diceyan Doctrine,Parliament is notbound by itspredecessors or bindits successors.46This is oftenlargely shown through theDoctrine of implicit Repeal.47 This is when Act of Parliamentconflicts with an former act, the later Act takes precedence.
48Through this, we can saythat no parliament isbound 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 1919.49 This shows the sovereignty of parliament, thisbeing 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 has experienced encounters that goes against it, one major encounterbeing the EU and howover that 50% of UKlaws that have economic impact come from the EU.51However, there has been a run of positive reception ofthe Diceyan Doctrine, suchas the doctrine ofImplied Repeal. My finalremark is that whenthe withdrawal bill receives royal assent,52 Dicey’s account of Parliamentary will be accuratein theory, but in practice, there would stillbe limits such as theJudiciary.
On this note, I say that Parliament 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 4Ibid n25Ibid n2 6Ibid n27Ibid 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 (31st Mar 2015)11Ibidn1012Ibid n913Karren McCullagh, “A tangled web of access to information: reflections onR (on the application of Evans) and another v Her Majesty’s AttorneyGeneral”, (2015)14Ibid n815Ibid n216Ibid n217Tom Mullen (2007). “Reflections on Jackson v Attorney General: questioningsovereignty”, Volume 21, Issue 118Ibid n219 R(Jackson) v Attorney General 2006 1 AC20 R(Jackson) v Attorney General 2006 1 AC(262), (102)21Ibid22 R(On the Application of Miller) v Secretary of State for Exiting the EuropeanUnion 2017 UKSC 523Ibid 24Ibid 25Alisdair Gillespie and Siobahn Weare, The English legal System, (6th Edn, OUP 2015)26Ibid n2227Ibid n22 28Ibid n2229Ibid n230Ibid n25 31Ibid n2532Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others(No. 5) 1999 3 W.L.
R. 10622000 1 A.C. 52433Ibid34ibid35Ibid 36Ibid n25 37Ibid n238 JeffreyGoldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)39William James, Michael Holden, ‘CharmingBastard’ David Davis to lead Brexit talks, Reuters 201740Ibid n2 41Ibid n242Nick Barber International Journal of Constitutional Law, The afterlife ofParliamentary sovereignty, Volume 9, Issue 1, 1 January 201143ibid44Ibidn2545Ibid46Ibid n247Ibid n248Ibid n249 Vuxhall Estates LTD v LiverpoolCorporation:1932 1 KB 73350Ibid n251House of Commons Library, research paper 10/62, ‘How much legislation comesfrom Europe’52Ibid n2