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 andgiving 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 ofparliamentary 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 can discuss ifthese 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 tothe 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 this judgment is that it 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 that these powers used in the decision thecourt struck down, were created underneath the powers of Parliament.13 Since the Supreme Court overrode the Judicial review and set thatthe 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 be Parliament permitting the use of the veto. 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, and so the courts questioned the validity of an act ofparliament. Furthermore, Jackson v Attorney General contained a idea of judges acting in their official boundary15. 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.16 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.
17 One example is Lord Steyn, he said ” it is not unthinkablethat 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”.18 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 asjudicial review through an act, the courts have the ability strike down that act.19 However, although it’s going to appear as if the court decisionsare going against sovereignty and the Diceyan doctrine of thought, the case R (On the appliance of Miller) v Secretary of State for Exiting theEuropean Union 2017 UKSC 5 shows that the court’s call upheld the Diceyan Doctrine.
In the R 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 50.20 The question here was if these powers could be used to trigger article 50.21 The Supreme Court recognised that there was an important guideline of the UK’s constitution, this being that Parliament is sovereign and might amend orrepeal laws.22 The European Communities Act 1972 which brought the UK into the EU23 was introduced through an Act and so thegovernment cannot supersede this using exclusive powers given by the monarch.24 It was said that Parliament should only Trigger article 50because the ECA 1972 is an independent source of law,25 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.
26 This upheld the Diceyan Doctrine that Parliament is supreme law creating body and solely it will create and undo laws. However, we should contemplate the position of parliament before the EUreferendum and R v Secretary of State for Exiting the European Union. Throughout this situation, the Diceyan Doctrine remained inaccurate through the European Communities Act 1972 (ECA). The ECA allowed the U.K to become a member of the European Union.
27 It additionallygave way EU law superseding United Kingdom’s law brought by Parliament and so, takes precedence over national law28. This implies that parliament is not any longer, the supreme law-making body becausethe 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 It was declared to prevent Spanish fishing owners from selling fish caught in the UK in Spain.30 This issue was later in the ECJ, that MSA dishonoured the Treaty of Rome 1957 that created the European Economic Community.31 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 wasdeclared incompatible with EU law32, 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 1972.33 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 ECA34 and lead to the countries exit from the EU. Once this Bill receives royal assent,35 the U.
K will no longer be subjugated to EU law and the European court of justice. Parliament willonce more be the supreme law creating body and no establishment will question the validity its laws. In addition to this Section 4 of the Act, permits the higher courts to issue of a declaration of incompatibility to act of Parliament in relevancy to human rights.36 This enables courts to think about that the terms of a statute, acts of public authority that Parliament has passed, and choose if it’s incompatible with the UK’s commitments underneath the Human Rights Act 1998.37 Thus, this means that the Diceyan Doctrine isn’t correct as it goes against the concept that nobody like a court will question the validity of an act Parliament.
However, in terms of the declaration of incompatibility, itmerely demonstrates the act of Parliament is contrary with the EuropeanConvention of Human Rights, it doesn’t negate the statute as Parliament then chooses to decide if it needs to amend the act.38 To illustrate this more, underneath Section 10 of the HRA, a Minister of the Crown might create such modification to primary legislation that is viewed as vital towithdraw the incompatibility.39 Thus, it may be argued that the courts cannot strike down an Act, they caution 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.40 This is often largely shown through the Doctrine of implicit Repeal.41 This is when Act of Parliament conflicts with an earlier act, the later Act takes precedence.42 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 impliedlyrepealed the Acquisition of land act 1919.43 This shows the sovereignty of parliament, this being that no parliament will bind a future parliament. In conclusion, Parliamentary sovereignty seems to own come back full circle since Dicey first defined 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 has held up. My final remark is that when the withdrawal bill receives royal assent, Dicey’s account of Parliamentary will be accurate in theory, but in practice, there would stillbe 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 (onthe 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) 11 Public Law for Everyone: Professor Mark Elliott Blog 12 Ibid n8 13 Karren McCullagh, “A tangled web of access to information: reflections on R (on the application of Evans) and another v Her Majesty’s AttorneyGeneral”, (2015) 14 Ibid n8 15 Ibid n8 16 Tom Mullen (2007).”Reflections on Jackson v Attorney General: questioning sovereignty”, Volume 21, Issue 1 17 The EU Bill and Parliamentary Sovereignty – European Scrutiny Committee: Divergent opinion on the scope of Parliamentary sovereignty 18 R (Jackson) v Attorney General 2006 1 AC (262), (102) 19 Ibid 20 R (On the Application of Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5 21 Ibid 22 Ibid n17 23 Alisdair Gillespie and Siobahn Weare, The English legal System, (6th Edn, OUP 2015) 24 Ibid n17 25 Ibid n17 26 Ibid n17 27 Ibid n23 28 Ibid n23 29 R (Factortame Ltd) v Secretary of State for Transport 2003 Q.B. 381 2002 3 W.L.
R. 1104 30 Nick Barber International Journal of Constitutional Law, The afterlife of Parliamentary sovereignty, Volume 9, Issue 1, 1 January 2011, 31 Ibid n23 32 Ibid 29 33 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015) 34 William James, Michael Holden, ‘Charming Bastard’ David Davis to lead Brexit talks, Reuters 2017 35 Ibid n2 36 Nick Barber International Journal of Constitutional Law, The afterlife of Parliamentary sovereignty, Volume 9, Issue 1, 1 January 2011 37 ibid 38 Humberto Ávila, Certainty in Law, 1st ed, 39 Ibid 18 40 Ibid n2 41 Ibid n2 42 Ibid n2 43 Vauxhall Estates LTD v Liverpool Corporation:1932 1 KB 733 undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefined undefinedundefined undefined