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 and giving it to parliament, as a result, the monarch’s power of royal prerogative is underneath parliament within the late seventeenth and early eighteenth century. 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.
Custom views of parliamentary sovereignty derive from Dicey’s, his views of parliament are the following; the primary being that parliament 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 bind a future successor and, the remainder of Dicey’s principles is that no individual 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 General 2015 UKSC 21, the Attorney General, who is a minister, exercised his power to veto 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 to the Supreme Court (SP) that overrode the review. It was expressed there were no grounds for the veto and that Section 53(2) was contrary to EU law.
The significance of the R v Attorney General is that this judgment provides is a concept to the degree to that it’s lawful for a court active forces of judicial review to strike down a Government Minister’s decision created underneath the powers allowed by Parliament to overturn a tribunal’s judgment. Since the SP overrode the Judicial review and set that the Minister had no ground to exercise his power of veto, it implies 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 of parliament.
Furthermore, Jackson v Attorney General contained thought from judges acting in their official boundary, that courts might have the ability to strike down an Act of Parliament in the event of a violation of constitutional principles. thus, a body like a court will question the legitimacy of laws brought by Parliament. In this case, 3 law lords urged that that courts had the ability to strike down legislation. One example is Lord Steyn aforementioned “It (parliamentary supremacy) is a construct of the common law. The judges created this principle. If that is so, 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”. this means that the courts do have the flexibility to question parliament and the laws it makes revolving Judiciary as Lord Steyn discussed how if Parliament was to remove certain court powers such as Judicial review through law, the courts have strike down that law. Therefore, in theory, the Diceyan Doctrine that nobody or institution may question parliament legislative agenda is inaccurate.
And so, each case referenced above resulted in challenges to the customer perspective of parliamentary sovereignty, this being that no individual or body like a court might question the validity of the law.
However, though it’s going to appear as if the court decisions are going against sovereignty and the Diceyan doctrine of thought, the case R (On the appliance of Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5 shows that the court’s call upheld the Diceyan school of thought.
In the R v Secretary of State for Exiting the European Union, there was a problem that the government utilising exclusive powers known as Prerogative powers to trigger article 50. The question here was if these powers could be used to trigger article 50. The Supreme Court recognised that there was an important guideline of the UK’s constitution, this being that Parliament is sovereign and might create an undo laws. The European Communities Act 1972 which brought the UK into the EU was introduced through an Act of Parliament and so the government cannot supersede this using exclusive right powers given by the monarch. It was said that Parliament should only Trigger article 50 because the ECA 1972 is an independent source of law, 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. The may be a crucial case as this case is new, the Supreme Court creating a choice in 2017 that upheld the Diceyan Doctrine, is that Parliament is supreme law creating body and solely it will create and undo laws as only it could repeal the ECA 1972 and trigger article 50.
However, we should contemplate the position of parliament before the EU referendum 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. It additionally gave way EU law superseding United Kingdom’s law brought by Parliament and so, takes precedence over national law. This implies that parliament is not any longer, the supreme law-making body because the EU currently makes the law that Parliament cannot supervene upon. This is an example that shows Diceyan Doctrine of thought being inaccurate, this account being that parliament is the supreme law-making body which nobody or body like a court will question the validity of the law is that the issue tame case.
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, that was declared to prevent Spanish fishing owners from 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 Economic Community. Here is a case of prevention of parliamentary act from having an effect, which demonstrates that parliament isn’t the preeminent t law creating body because the MSA was declared incompatible with EU law, so the MSA ought to be negated. It indicates how a court, will question the validity of an act introduced by Parliament. Therefore, this Dicey account of parliamentary sovereignty being inaccurate.
However, one might argue that Parliament consented to the present dominion and can simply repeal the ECA 1972. 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 ECA and lead to the countries exit from the EU. Once this Bill receives royal assent, the U.K will no longer be subjugated to EU law and the European court of justice. Parliament will once more be the supreme law creating body and no establishment will question the validity its laws. Therefore, Diceyan doctrine remains correct.
The Human Rights Act (HRA) 1988 doesn’t have an entrenched standing and, maybe amend or repealed supported a parliamentary majority, so it may be thought of to not be destructive to Parliamentary sovereignty. We must also consider that if Parliament was to repeal the HRA as it wanted to in 2010 with the Bill of Right, it would have to replace it with rights that conform to the European Convention on Human Rights. So, parliament is essence is limited and so it is not the supreme law-making body as it must conform to regulation when passing a bill. This means that Dicyan Doctrine is in inaccurate.
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. 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. 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, it merely demonstrates the act of Parliament is contrary with the European Convention of Human Rights, it doesn’t negate the statute as Parliament then chooses 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 such modification to primary legislation that is viewed as vital to withdraw the incompatibility. thus, it may be argued that the courts cannot strike down an Act of Parliament as Parliament can repair the problem and so the Diceyan Doctrine of thought remains correct.
As indicated by the Diceyan Doctrine, Parliament is not bound by its predecessors or bind its successors. this is often largely shown through the Doctrine of implicit Repeal. This is when Act of Parliament conflicts with an earlier act, the later Act takes precedence. Through this, we can say that no parliament is bound or binding. In Vauxhall homes ltd v port Corporation, the court command that the Housing Act 1925 impliedly repealed the Acquisition of land act 1919. This shows the sovereignty of parliament, this being that no parliament will bind a future parliament. Therefore, the Diceyan Doctrine remains correct.
In conclusion, the school of thought of 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 still be limited such as the Courts. On this note, I say that Parliament is sovereign and that the U.K adheres to the account of Dicey