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, as a result,the monarch’s power of royal prerogative is underneath parliament within thelate seventeenth and early eighteenth century. This condition may be foundwithin the Bill of Rights 1688, that expressed laws should be created orrevoked by Parliament and not by the Monarch alone.Custom views of parliamentary sovereignty derive fromDicey’s, his views of parliament are the following; the primary being thatparliament is that the final law-making establishment and can sanction any law,the second being is that no parliament is to be bound by a forerunner nor binda future successor and, the remainder of Dicey’s principles is that noindividual or body might inquire or question the validity and legitimacy of law.This essay can discuss if these views stay correct.
In the R (on the appliance of Evans) v professional General2015 UKSC 21, the Attorney General, who is a minister, exercised his power toveto a court ruling underneath s.53 (2) of the Freedom of Information Act 2000.Judicial review occurred and it upheld the veto, then the problem proceeded tothe Supreme Court (SP) that overrode the review.
It was expressed there were nogrounds for the veto and that Section 53(2) was contrary to EU law. The significance of the R v Attorney General is that thisjudgment provides is a concept to the degree to that it’s lawful for a courtactive forces of judicial review to strike down a Government Minister’sdecision created underneath the powers allowed by Parliament to overturn atribunal’s judgment. Since the SP overrode the Judicial review and set that theMinister had no ground to exercise his power of veto, it implies that it islegitimate for a court to deny Parliaments will, this will be Parliamentpermitting the use of the veto. It may be argued that the Diceyan Doctrineisn’t correct because the courts used their power to deny a Minister his powerthat was expressly given by an act of parliament, and so the courts questionedthe validity of an act of parliament.Furthermore, Jackson v Attorney General contained thoughtfrom judges acting in their official boundary, that courts might have theability to strike down an Act of Parliament in the event of a violation ofconstitutional principles. thus, a body like a court will question thelegitimacy of laws brought by Parliament. In this case, 3 law lords urged thatthat courts had the ability to strike down legislation. One example is LordSteyn aforementioned “It (parliamentary supremacy) is a construct of the commonlaw.
The judges created this principle. If that is so, it is not unthinkablethat circumstances could arise where the courts may have to qualify a principleestablished on a different hypothesis of constitutionalism. In exceptionalcircumstances involving an attempt to abolish judicial review or the ordinaryrole of the courts”.
this means that the courts do have the flexibility toquestion parliament and the laws it makes revolving Judiciary as Lord Steyndiscussed how if Parliament was to remove certain court powers such as Judicialreview through law, the courts have strike down that law. Therefore, in theory,the Diceyan Doctrine that nobody or institution may question parliamentlegislative agenda is inaccurate.And so, each case referenced above resulted in challenges tothe customer perspective of parliamentary sovereignty, this being that noindividual or body like a court might question the validity of the law.However, though it’s going to appear as if the courtdecisions are 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 Diceyanschool of thought.In the R v Secretary of State for Exiting the EuropeanUnion, there was a problem that the government utilising exclusive powers knownas Prerogative powers to trigger article 50.
The question here was if thesepowers could be used to trigger article 50. The Supreme Court recognised thatthere was an important guideline of the UK’s constitution, this being thatParliament is sovereign and might create an undo laws. The European CommunitiesAct 1972 which brought the UK into the EU was introduced through an Act ofParliament and so the government cannot supersede this using exclusive rightpowers given by the monarch. It was said that Parliament should only Triggerarticle 50 because the ECA 1972 is an independent source of law, thenparliament might solely select once to reject this source. Additionally, the EUprovided citizens with rights, and so solely Parliament is authorised to revokethis. The may be a crucial case as this case is new, the Supreme Court creatinga choice in 2017 that upheld the Diceyan Doctrine, is that Parliament issupreme law creating body and solely it will create and undo laws as only itcould repeal the ECA 1972 and trigger article 50.However, we should contemplate the position of parliamentbefore the EU referendum and R v Secretary of State for Exiting the European Union.
throughout this situation, the Diceyan Doctrine remained inaccurate through theEuropean Communities Act 1972 (ECA). The ECA allowed the U.K to become a memberof the European Union. It additionally gave way EU law superseding United Kingdom’slaw brought by Parliament and so, takes precedence over national law.
Thisimplies that parliament is not any longer, the supreme law-making body becausethe EU currently makes the law that Parliament cannot supervene upon. This isan example that shows Diceyan Doctrine of thought being inaccurate, thisaccount being that parliament is the supreme law-making body which nobody orbody like a court will question the validity of the law is that the issue tamecase.In R (Factortame Ltd) v Secretary of State for Transport,the European Court of Justice (ECJ) addressed the legitimacy of the MerchantShipping Act (MSA) 1988, that was declared to prevent Spanish fishing ownersfrom selling fish caught in the UK in Spain. This issue was later in the ECJ,that MSA dishonoured the Treaty of Rome 1957 that created the European EconomicCommunity. Here is a case of prevention of parliamentary act from having aneffect, which demonstrates that parliament isn’t the preeminent t law creatingbody because the MSA was declared incompatible with EU law, so the MSA ought tobe negated.
It indicates how a court, will question the validity of an actintroduced by Parliament. Therefore, this Dicey account of parliamentarysovereignty being inaccurate.However, one might argue that Parliament consented to thepresent dominion and can simply repeal the ECA 1972. This would mean thatParliament’s sovereignty isn’t lost and Dicey’s account would subsequently becorrect. This is currently happening, the European Union (Withdrawal) Bill willnegate ECA and lead to the countries exit from the EU.
Once this Bill receivesroyal assent, the U.K will no longer be subjugated to EU law and the Europeancourt of justice. Parliament will once more be the supreme law creating bodyand no establishment will question the validity its laws. Therefore, Diceyandoctrine remains correct.The Human Rights Act (HRA) 1988 doesn’t have an entrenchedstanding and, maybe amend or repealed supported a parliamentary majority, so itmay be thought of to not be destructive to Parliamentary sovereignty. We mustalso consider that if Parliament was to repeal the HRA as it wanted to in 2010with the Bill of Right, it would have to replace it with rights that conform tothe European Convention on Human Rights. So, parliament is essence is limitedand so it is not the supreme law-making body as it must conform to regulationwhen passing a bill.
This means that Dicyan Doctrine is in inaccurate.In addition to this Section 4 of the Act, permits the highercourts to issue of a declaration of incompatibility to act of Parliament inrelevancy to human rights. This enables courts to think about that the terms ofa statute, acts of public authority that Parliament has passed, and choose ifit’s incompatible with the UK’s commitments underneath the Human Rights Act1998.
thus, this means that the Diceyan Doctrine isn’t correct as it goesagainst the concept that nobody like a court will question the validity of ANact 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 thenchooses to decide if it needs to amend the act. To illustrate this more,underneath Section 10 of the HRA, a Minister of the Crown might create suchmodification to primary legislation that is viewed as vital to withdraw theincompatibility. thus, it may be argued that the courts cannot strike down anAct of Parliament as Parliament can repair the problem and so the DiceyanDoctrine of thought remains correct.As indicated by the Diceyan Doctrine, Parliament is notbound by its predecessors or bind its successors. this is often largely shownthrough the Doctrine of implicit Repeal. This is when Act of Parliamentconflicts with an earlier act, the later Act takes precedence. Through this, wecan say that no parliament is bound or binding.
In Vauxhall homes ltd v portCorporation, the court command that the Housing Act 1925 impliedly repealed theAcquisition of land act 1919. This shows the sovereignty of parliament, thisbeing that no parliament will bind a future parliament. Therefore, the DiceyanDoctrine remains correct.In conclusion, the school of thought of Parliamentarysovereignty seems to own come back full circle since Dicey first defined it.The Diceyan Doctrine had undergone challenges like the EU. However, there hasadditionally been a series of acceptance of the Diceyan Doctrine, like theMiller 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’saccount of Parliamentary will be accurate in theory, but in practice, therewould still be limited such as the Courts. On this note, I say that Parliamentis sovereign and that the U.K adheres to the account of Dicey
