parliamentary sovereignty

Since
it’s inception, the bedrock of the United Kingdom’s Constitution has been
Parliamentary Sovereignty. This fundamental principle of parliamentary
sovereignty was encapsulated by A.V. Dicey in the Study of the Law of the
Constitution, back in 1885, where he stated: “The principle of Parliamentary
Sovereignty means neither more nor less than this, namely, that Parliament …
has, under the English constitution, the right to make any law whatever; and,
further, that no person or body is recognised by the law of England as having a
right to override or set aside the legislation of Parliament”[1].
Dicey’s view of parliamentary sovereignty consisted of three factors:
Parliament is competent to pass laws on any subject; Parliament cannot bind its
successors as to the content, manner and form of subsequent legislation; and
Laws passed by Parliament cannot be challenged by the courts[2]. Putting
this into a Diceyan perspective therefore entails that Parliamentary
sovereignty provides that no one can question the validity of an Act of
Parliament and no Parliament can bind another[3]. Figuratively
Sir Ivor Jennings (1959) proclaimed that parliament can legislate to ban
smoking on the streets of Paris, signifying that if required, Parliamentary
sovereignty is unlimited. Although in theory the role of the European Union and
UK courts not recognising the laws of Parliament which threatens “the essential
elements of any plausible conception of democratic government”[4] seem
to question Dicey’s underlying argument, this essay will argue that Dicey’s
traditional account of Parliament’s sovereignty to a large extent remains
accurate in the context of modern developments.

                                                                                                               
                  

In accordance with Dicey, one factor of
Parliamentary sovereignty is that Parliament is competent to pass laws on any
subject, signifying Parliament as the supreme law maker. This is signified in
the case of R (Jackson) v AG[5] where
Parliament used the Parliament Act 1911[6] to
alter the Parliament Act 1949[7], which
initially should have illustrated a challenge to the notion of Parliamentary
sovereignty, yet the House of Lords ruled that there were no limits to the type
of laws that Parliament could pass using the Parliament Acts, essentially
demonstrating Parliament legislating over its own procedures.
Furthermore, the decision in the Burmah
Oil Company v Lord Advocate [1965][8] by
the House of Lords was overruled by the War Damage Act 1965[9] exemplifying
Parliament’s position as the supreme law maker signifying that Dicey’s initial
argument to a large extent remains accurate.

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In contrast it is plausible and necessary to
highlight the significance of the role of the European Union’s Court of Justice
which is arguably more sovereign and autocratic than Parliament due to its
fundamental ability to rescind and abrogate Member State legislation which disregards
EU primary legislation. The case of Factortame[10] exhibits
European Union law’s pre-eminence over Parliament as the Merchant Shipping Act
1988[11], introduced
to forestall Spanish boats fishing in British water, was deemed void and
nullified due to not corresponding with European Union law. For David Smyth
this is the clearest indication of European law being sovereign to Parliament[12].
Although tenable, in my opinion Smyth’s viewpoint over valorises and fixates
far to greatly on Parliament’s inability to repel any European ruling as, in
retrospect of Britain triggering Article 50, Parliament can and has abstained
from following European ruling by legislating to leave the European Union,
which not only serves to highlight Parliament’s sovereignty, it also to a great
extent shows how Dicey’s traditional account of Parliamentary sovereignty
remains accurate in spite of modern contextual developments. The case of R (On the Application of Miller) v Secretary
of State for Exiting the European Union [2017] UKSC 5 further emphasises
this as it essentially suggests that it would also be constitutionally and
legally permissible for Parliament to refuse to trigger Article 50[13],
resembling the traditional Diceyan conception of Parliamentary sovereignty.

 

Parliament’s ability to remain sovereign is
also applicable to Dicey’s second factor concerning Parliamentary sovereignty in
which Parliament cannot bind its successors[14]. The
doctrine of implied repeal meaning an Act of Parliament or an Act of Congress which
conflicts with an earlier one, the later Act takes precedence, is demonstrated
in the case of Vauxhall Estates Ltd v
Liverpool Corporation [1932][15]
regarding The Housing Act 1925[16] and
the Acquisition of Land Act 1919[17] where
it was concluded that the provisions of the later act would apply (implied
repeal), clearly epitomising the fact Parliament cannot bind its successors, confirming
Dicey’s traditional account of Parliamentary sovereignty to a large extent. In
addition to this the Thoburn v Sunderland
City Council[18] case
developed on the concept of implied repeal by introducing a hierarchical system
so that newer legislation does not impliedly repeal constitutional statutes,
this therefore encourages Parliament to be clearer in the legislation they write
when wanting to annul and abolish certain rights.

 

On the other hand, logically if Parliament was in
fact sovereign, it would be able to bind its successors. The Parliament Act
1911[19]
provides the current manner and form of legislation, but Parliament could make
a new manner and form if it so wished. If the Courts will only recognise what
is enacted in the proper legal form, then as a result Parliament can in fact bind
its successors. However, the central issue this would raise is that
consequently this would diminish the sovereignty of future Parliaments making
the whole argument counter intuitive and ineffective. Nevertheless, even though
the case of R (on the application of
Evans) v Attorney General [2015] UKSC 21 will naturally conjure up a vast
array of interpretations, Alison Young’s commentary and viewpoint concerning
the case, and one I am inclined to agree with, argues that although Parliament
can legislate on any topic, it fundamentally cannot bind its successors.
Young’s findings argue that this is due to “parliamentary legislative supremacy
is justified not because it aims to ensure that Parliament is supreme, but
because it ensures that supremacy is shared between the legislature and the
courts”[20] ,
this as a result, to a great extent reaffirms Dicey’s traditional account of
Parliamentary sovereignty as remaining contextually accurate.

 

Dicey’s third and final factor concerning his
traditional account of Parliamentary sovereignty is regarding the fact that no
person or body including a court of law may question the validity of laws
passed by Parliament as signified by Blackstone, “true it is that what the
parliament doth no authority on earth can undo”[21]. Per
contra the Parliament Act 1949[22] and the
Hunting Act 2004[23] were
in fact probed in the case of R (Jackson)
v Attorney General [2005][24] questioning
the notion of Parliamentary sovereignty in practice, although it was concluded
that the courts cannot question the validity of primary legislation despite of a
way an Act has been passed, drawing attention to Parliament’s innate supremacy
of the courts.  

 

Moreover, The Human Rights Act 1998[25] has
in several ways altered the balance of power between the courts and Parliament.
Sections 3 and 4 of the Human Rights Act have significantly limited the
autonomy which Parliament has traditionally exercised over the legislative
process, however an overriding feature of The Human Rights Act 1998[26] is
that courts cannot formally strike down legislation[27]. In
addition to this, the fact that Parliament can choose to ignore the judge’s decision
is of huge significance due to this signifying Parliament’s ability to retain
control over its own legislation and as a result affirm its right to discard
the guidance from the courts, which to a huge extent, serves to advocate
Dicey’s third factor in relation to his traditional account of Parliamentary
sovereignty.

 

 

In conclusion, the traditional Diceyan notion
of Parliamentary sovereignty remains accurate within the modern contextual
sphere, despite current topical constitutional developments of the current
century, such as the role of the European Court of Justice, threatening to
diminish the Dicey’s conception of Parliamentary sovereignty, yet to no avail
signifying that in fact, to a large extent, Dicey’s traditional account of
Parliament’s sovereignty still remains accurate.