For argued that the conditions necessary to exercise Parliament’s

For reasons to be discussed and analysed, it can be argued
that Dicey’s account of Parliamentary Sovereignty remains only partially
accurate in today’s times. Initially, it is important to clarify Dicey’s views.

Constitutional theorist and Professor Albert Venn Dicey, within his most widely
renowned work an “Introduction to the Study of Law of the Constitution (1885)”
expounded, along with principles of the United Kingdom’s uncodified
constitution, an outline of the principles of Parliamentary Sovereignty.

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            “Parliament… has, under the English
constitution, the right to make or unmake any law whatever; and, further, that
no person or body is recognized by the law of England as having a right to
override or set aside the legislation of Parliament1”

In essence, Dicey’s doctrine has three separate aspects;
Parliament has freedom to create any type of law, Parliament’s legality cannot
be overridden and Parliament cannot bind its successors. Although Dicey’s
doctrine of Parliamentary sovereignty has been well accepted as a central
principle of British constitutionalism2,
throughout this essay I shall critically analyse how its place is being
transformed through changing internal and external political climate due to
membership of the European Union, power devolution and newly imposed Human
Rights emphasis.

           

Dicey claims that Parliament has unlimited law-making power,
that it can enact, amend or repeal any law it wishes; regardless of fairness.

Whilst this statement is theoretically still valid and Westminster Parliament remains
sovereign, it could be argued that the conditions necessary to exercise Parliament’s
Sovereignty are not available. The triggering of the European Communities Act
1972 enabled Britain to enter the European Union, or EU, and with it came EU
law taking precedent over “Parliament-created home-law”3. EU
Law and the sovereignty of the European Court of Justice superseding Westminster’s
Parliament was first realised and evidenced within R (Factortame Ltd) v
Secretary of State for Transport (1991), or the “Factortame Saga”. Parliament
could not introduce/apply the Merchant Shipping Act 1988, failing to protect
British fishermen as it contravened the Treaty of Rome 1957. The Factortame
decision is antithetical to Dicey’s principles and shows a clear opposition to the
constitutional principle that UK Parliament can enact any law. Dicey’s Sovereign
Parliament has simply been replaced due to judicial acquiescence in the face of
political expediency ensuring that EU law, rather than the UK parliament is now
supreme.

 

 

 

Another limiting component of Parliamentary Sovereignty is devolution.

Scotland, Wales and Northern Ireland held successful referendums devolving varying
levels of UK Parliamentary Powers to individual UK nations. This power lead to
the establishment of separate Parliaments or Assemblies and the democratic
election of officials4.

Devolution established a new constitutional relationship between the different
countries of the UK, also challenging Dicey’s Sovereign Parliament principle
that validity of laws cannot be questioned. In practice, Westminster is no
longer sovereign over the domestic affairs of Scotland and Wales, or, rather, Parliamentary
Sovereignty means something different in Scotland and to some extent in Wales
from what it means in England. Where theoretically, Parliament still has
genuine law-making supremacy, after devolution, regarding the largely-devolved
domestic affairs of Scotland, Scottish Parliament considers Westminster to have
a somewhat ambiguous right
of supervision with a somewhat theoretical right to abolish Scottish
Parliament. However, although Parliament is technically sovereign through
legal constitutionalism, political constitutionalism must also be considered whilst
deciding whether Dicey’s principles remain paramount today. Westminster must adhere
to political reality. If there were to be an abolishment of Scottish Parliament
by the UK government against the wishes of the Scots, there would be a real
danger of Scotland separating from the UK which could lead to disastrous effects
for the remaining UK. As a result Westminster’s Parliamentary Sovereignty over
Scotland amounts to something far less than the “unlimited power” identified by
Dicey and as devolution is woven ever more closely into the constitutional
fabric of the United Kingdom, the theoretical ability of the UK Parliament to
interfere with devolved matters will become increasingly smaller.

 

Whilst considering whether Dicey’s traditional account of
Parliamentary Sovereignty remains accurate presently, it is important to analyse
the case of R (On the Application of Miller) v Secretary of
State for Exiting the European Union 2017 UKSC 5 as the pivotal case brings up many
questions regarding Parliamentary Sovereignty today. The issues in the case are
brought into question when it is realised the royal prerogative does not have
the legal subsidy to trigger Article 50 due to the fact that the EU citizens’ rights
whilst living in the UK granted by EU statutes would be legally withdrawn. The
case both affirms Parliamentary Sovereignty (by ruling that the prerogative
powers cannot be used to undo arrangements set in place by Parliament) and challenges
it (by characterising EU law as something independent of and which can override
Acts of Parliament) – simultaneously both offering support and disagreement
with Dicey’s principles. Further considerations are raised in Miller regarding Parliamentary
Sovereignty when, after the Supreme Court decides it is for Parliament to
trigger article 50, it is brought into question whether the Sewel Convention
would be engaged and whether Devolved Governance could interject legally with
triggering Article 50. Devolution of power involves a non-exclusive sharing of power
rather than an actual transfer of power5.

This results in devolved legislatures which are free to legislate on devolved
matters, yet still leaving Westminster’s authority supreme. However, any involvement
by Westminster in a devolved matter undermines the relationship created by
devolution. The Sewel Convention was a response to concerns of constant Westminster
Parliamentary interference. It is a political understanding that UK Parliament
will not normally legislate on devolved matters unless the relevant devolved
legislature consents6.

In Miller, it was argued the Supreme Court should engage the Sewel Convention
in the Light of the recent legislation of s 28(8) of the Scotland Act 20167.

The Supreme Court ruled that that legislation is just showing a formal
understanding of the political convention and thusly, as a convention, has no
legal precedent. Westminster triggering Article 50 without political
negotiations with the devolved countries parliaments shows even with a rough
political climate Parliamentary Sovereignty remains strong and could create any
law unquestioned (even affecting devolved nations). This decision reaffirms Parliament’s
power and pushes away from the indication 
that the UK constitution is becoming a “federal” constitution (involving
dividing the powers of government between a central government and various
states or provinces) and maintains devolution – having supreme legislative
authority in Westminster’s Parliament.

 

The enactment Human Rights Act (HRA) 1998
introduced a new limitation on Parliamentary Sovereignty. The White Paper of
the Act specifically mentions the courts should interpret legislation as far as
possible in accordance with the Convention and where not possible for the
higher courts to make a formal declaration for Parliament to change the
legislation8.

Although worded to fit in with legal constitutionalism, maintaining  Dicey’s traditional of Parliamentary
Sovereignty, the act suggests manipulating the system in order to give this
legislation (introduced by an external power; the EU) an ability to create new
legislation through parliament. The Act enables the Judiciary more powers
regarding Human Rights cases. Although the Courts always use statutory
interpretation, the Human Rights Act enables a further level to interpretation and
takes advantage of Dicey’s account that Parliament cannot bind its successors, allowing
legislation to be replaced due to an incompatibility declaration. This Act
fails Dicey’s Parliamentary Sovereignty as enforcement of its statute is not necessarily
as mandatory as before the Act. Since the Enactment of the HRA 29 declarations of incompatibility
were filed, of which 20 have become final9.

 

Another important case to consider regarding Parliamentary Sovereignty
is R (on the application of Evans) v Attorney General
2015 UKSC 21. After the Attorney General veto’s10
 Mr Evan’s, a journalist with the
guardian’s, request for a publication of Prince Charles’ letters to ministers,
the case brings into question issues surrounding Parliamentary Sovereignty and
the nature of the relationship between Parliamentary Sovereignty and the Rule
of Law. Although, the actions of the Attorney General can be argued to be
legally constitutional under Section 53 of the Freedom of Information Act, it
sparked a debate as to whether the constitutional element of Rule of Law could
overrule Parliamentary Sovereignty. Lord Justice
Laws, Trevor Allen and others contended that Parliamentary Sovereignty is a
common law norm the judiciary could unilaterally modify or repudiate in certain
circumstance; for example, it could possible be overridden by a fundamental
common law norm such as the principle of the rule of law.

 

In conclusion for the reasons discussed and analysed it cannot be said
that Dicey’s traditional account of Parliamentary Sovereignty remains fully accurate
in today’s times. Although viewed from a purely legal aspect it can be argued
that Parliament remains sovereign and contains all aspects Dicey outlined for
Parliamentary Sovereignty, membership into the European Union (and its
constitutional supremacy), the acceptance of the Human Rights Act and
devolution of Parliamentary power to UK nations have all affected its ability
for to exercise its Sovereignty. Due to this, and the evolution of the UKs internal
and external political climate, the doctrine of Parliamentary Sovereignty may
come to reflect that the United Kingdom’s Parliament does not hold absolute
power.

1 Albert
Venn Dicey, An introduction to the Study of the Law of the Constitution
(Macmillan, 8th ed. 1996) page 38

2 Public
Law Third edition Mark Elliot and Robert Thomas

3 Long
before the joining of the UK in 1973, the European Court of Justice had
explained that EU law took priority over the laws of individual states (noted
within the EUs Draft Constitution: Available at
htttp://europa.eu.int/futurum/constitution/table/index_en.htm.)

4 http://www.parliament.uk/about/how/role/devolved/

5
Book chapter 7

6https://www.webarchive.org.uk/wayback/archive/20170701045316/http://www.gov.scot/About/Government/Sewel/KeyFacts

7 “it
is recognised that the Parliament of the United Kingdom will not normally
legislate with regard to devolved matters without the consent of the Scottish
Parliament” – Found Scotland act 2016 s 28(8)

8
White Paper of the Human Rights Act 1998

9 https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13006.htm

10
Using Section 53 of the Freedom of Information Act 2000