Parliamentary sovereignty is the most critical piece of the UK constitution. It was imagined amid the time of William III and Mary II who came to position of royalty through sacrificing their own power and giving it to parliament, as a result, the monarch’s power of royal prerogative is right under parliament in the late 17th and early 18th century. This condition can be found in the Bill of Rights 1688, which expressed laws must be made or revoked by Parliament and not by the Monarch alone .
Traditions views of parliamentary sovereignty derives from Dicey’s, his views of parliament are the following; the first being that parliament is the supreme law-making body and may enact any law, the second being is that no parliament may be bound by a predecessor nor bind a future successor and the last of Diceys principles is that no person or body may question the validity of law. This essay will discuss whether these views remain accurate.
In the R (on the application of Evans) v Attorney General 2015 UKSC 21, the Attorney General, whom is a Government Minister, exercised his right to veto a Tribunal decision under s.53 (2) of the Freedom of information Act 2000 judicial review occurred and it upheld the veto, the issue then went to the supreme court and supreme court overrode the judicial review and stated there was no grounds for the veto and that Section 53(2) was incompatible with EU law.
The significance of the R v Attorney General is that this judgment participates in a talk of the connection between three major central principles: the rule of law, separation of powers and parliamentary sovereignty and to decide the degree to which it is lawfully and legitimate for a court practicing forces of judicial review to strike down a Government Minister’s decision made under the powers allowed by Parliament to overturn a tribunal’s judgment. It can be argued that Diceyan doctrine is not accurate as the courts used their power to deny a government minister his power that was expressly given by an act of parliament, and so the courts questioned the validity of an act of parliament.
In addition to this, Jackson v Attorney General contained an idea from judges acting in their official limit with regards to the suggestion that courts may have the authority to strike down an Act of Parliament if it violated the constitutional principles and therefore a body such as a court can in theory question the validity of law passed by Parliament is inaccurate. In this case, three law lords suggested that that courts had the power to strike down legislation. One example is Lord Steyn said “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 suggests that the courts do have the ability to question parliament and the laws it makes revolving around the Judiciary.
And so both cases reference above resulted in a challenge to the customary perspective of parliamentary sovereignty, this being that no person or body such as a court or institution may question the validity of law.
However, although it may seem as if the court decisions are going against sovereignty and the Diceyan doctrine, the case R (On the Application of Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5 shows that the court’s decision upheld the Diceyan Doctrine.
In the R v Secretary of State for Exiting the European Union, there was an issue regarding the Government using prerogative powers to trigger article 50 and whether this could be used to reverse an act of parliament, this act being European Communities Act 1972. The Supreme Court recognised that the most fundamental principle of the UK’s constitution is that Parliament is sovereign and can make and unmake any law, and that, as a part of the sovereignty of Parliament, it is an entrenched rule that the government cannot supersede. It is an enactment sanctioned by Parliament through prerogative power, stretched out to them by the Crown. It was held that Parliament must Trigger article 50 as the ECA 1972 is an independent source of law, and so parliament may only choose when to reject this independent source of law. In addition to this, it was held that the EU provided citizens with certain rights, and therefore only Parliament is authorised to revoke this. The is a crucial case as this case is new, the Supreme Court making a decision in 2017 that upheld the Diceyan Doctrine, being that Parliament is supreme law making body and only it can make and unmake laws
However, we must consider the position of parliament before the EU referendum and R v Secretary of State for Exiting the European Union . during this situation, the Diceyan Doctrine remained inaccurate through being the European Communities Act 1972 (ECA). The ECA allowed United Kingdom to become a member of the European Union. It also gave way to to EU law superseding UK and therefore, takes precedence over national law. This means that parliament is no longer the supreme law-making body as the EU now makes law that Parliament cannot supersede. An example that shows Diceyan doctrine being inaccurate, this account being that parliament is supreme law-making body and that no person or body such as a court can question the validity of law is the factor tame case.
In R (Factortame Ltd) v Secretary of State for Transport, the European Court of Justice (ECJ) questioned the legality of the Merchant Shipping Act (MSA) 1988, which was introduced to protect British fishermen. It was said by the High court and later referred to the ECJ, that MSA violated the Treaty of Rome 1957 which created the European Economic Community . Here is an example of how the EU stopped parliamentary act from having an effect, and so it shows that parliament is not the supreme law making body as the MSA act was declared incompatibale with EU law and so must be repealed. It also showed how a court such as the European court of justice, can questioned the validity of an MSA act introduced by Parliament. Therefore, this shows Dicey account of parliament being inaccurate.
However, one may argue that Parliament consented to this dominion and could easily repeal the ECA 1972, and so Parliaments sovereignty is not lost and Dicey account would thereafter be accurate. This is currently happening, the European Union (Withdrawal) Bill which would repeal the ECA. Once this Bill receives royal assent, the UK will no longer be subjugated to EU law and the European court of justice and so, parliament will once more be the supreme law making body and no institution can question the validly of law. Therefore, Diceyan doctrine remains accurate.
The Diceyan doctrine relates to two primary ideas, the first being that Parliament can in any way amend or repeal any current legislation and second, that no other institution may disapply legislation. The Human Rights Act 1988 seems to meet the first Diceyan idea in being regular parliamentary legislation. The legislation does not have an entrenched status and, can be amend or repealed based on a parliamentary majority. While Section 4 of the Act, enables the Higher Court to issue a declaration of incompatibility to act of Parliament in relation to human rights. This allows courts to consider that the terms of a statute, acts of public authority, and decide whether it is incompatible with the UK’s commitments under the Human Rights Act 1998. So this suggests that the Diceyan Doctrine is not accurate as is goes against the idea that no person or body such as a court can question the validity of an act Parliament
However in terms of declaration of incompatibility, it simply demonstrates the act of Parliament is contrary with the European Convention of Human Rights, it does not negate the statute as Parliament must decide whether it wishes to amend the act. To illistarate this point further, under Section 10 of the Human Right Act, a Minister of the Crown may make such amendment to primary legislation as are viewed as important to withdraw the incompatibility. Therefore it can be argued that the courts cannot strike down an Act of Parliament as Parliament has a legal right to fix the issue and so the Diceyan doctrine is still accurate.
As indicated by the Diceyan Doctrine, Parliament may not be bound by its predecessors or bind its successors. This is mostly shown through the Doctrine of implied Repeal. This is when an Act of Parliament conflicts with an earlier act, the later Act takes precedence, it is judges who give effect to this.. Through this, it has guaranteed that no parliament is bound or bind. in Vauxhall homes ltd v Liverpool Corporation, the court held that the Housing Act 1925 impliedly repealed the clashing provision in the Acquisition of land act 1919. This shows the supremacy of parliament, this being that no parliament can bind a future parliament. Therefore, the Diceyan Doctrine remains accurate.
In conclusion, the doctrine of Parliamentary sovereignty appears to have come full circle since Dicey first characterised it. The Diceyan doctrine has been a series of challenges such as the EU. However, there has also been a series of acceptance of the Diceyan Doctrine, such as the Miller case. Yet, in practice the three elements that Diceyan doctrine have held up extraordinarily well.