Constitutional through an Act of Parliament in 1972.[4] This

Constitutional
theorist, A.V Dicey views parliamentary sovereignty to be based on four rules; Parliament
has the right to make and unmake laws, no person or body can challenge this,
parliament can regulate activities of anyone, anywhere and that parliament
cannot bind its successors.1 The UK
constitution is uncodified and parliament is regarded as sovereign, this means
it has supreme power. For instance, the highest form of law in the UK is an Act
of Parliament, which no court can refuse to apply.

                                                              

Although, parliamentary sovereignty is a key principle of the UK
constitution, it is fundamentally flawed as the limitations that exist
undermine its power, and this will be discussed using case law. Today,
parliament holds superiority not only over the other branches in the UK
constitution, but essentially all constitutional principles, which speaks
volumes for its relevance today. As society has progressed, it could be argued
that Dicey’s traditional account has been proven inaccurate in practicality,
especially in today’s society. Ultimately, in theory his view is still widely
believed as correct as Lord Bingham stated, ‘the bedrock of the British constitution
is…The supremacy of the Crown in parliament.’2 However,
the pragmatism/reality behind Dicey’s account of parliamentary sovereignty is
questionable and this essay will debate the extent of its relevance today.

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Historically, sovereignty was held by the monarchs. Over time the power
shifted as ideology changed and now parliament holds the power. The Bill of
Rights 1689, established the concept of parliamentary sovereignty in the UK.3 There are
limitations regarding parliamentary sovereignty and it could be argued that the
inclination of the EU membership, devolution and the fact parliament cannot
bind future parliaments are limitations.

 

The UK joined the European Union through an Act of Parliament in 1972.4 This in a
sense weakened the concept of parliamentary sovereignty. As argued by William
Wade, who stated that the membership ‘terminated the sovereignty of the British
Parliament.’5 Initially,
suggesting that Dicey’s accounts are irrelevant today. However, Wade supports
Dicey’s view and goes on to modernise the view.

 

The case of Factortame,6 is an
example of EU law supremacy. In this case the court issued an injunction and
stated the Act of Parliament would not be applied as it did not align with EU
law. Clearly indicating Dicey’s account is imprecise. Also, some EU provisions
are implemented in directives this questions the sovereignty of parliament as
it constrains parliament to pass laws by a certain timeframe, but allows the
content to be decided by the member state.7 However,
regulations are directly applied and do not require an Act of Parliament, which
undermines parliament sovereignty as it essentially supersedes an Act of
Parliament. The European Court of Justice in
Costa v ENEL8 affirmed
the fact that the member states by joining the EU limited their sovereign
rights.9

 

In reference to Miller,10 this case
essentially reinstated parliamentary sovereignty in two ways. The first being
once the UK withdraws from the EU, parliament would regain sovereignty. The
second, is that the question before the court was whether the government could
trigger Article 50 by using the royal prerogative powers they had. It was held
that they would need an Act of Parliament, illustrating the limits to the
government’s power, as not only did parliament reign supreme over the courts
but also the executive, supporting Dicey’s account.

 

 

An example of where Dicey’s traditional account remains accurate is in
the case of R v Jordan, 11 where the
defendant believed the Race Relations Act of 1965 was unlawful as it took away
his right to free speech. It was held by the court that they were unable to
question the Act of Parliament. Therefore, elucidating the impression that
parliament is the supreme body in regard to the doctrine of separation of
powers as the judiciary cannot override an act of parliament as parliament
reigns supreme over the judiciary. Another case, where the courts uphold the
authority of Acts of Parliament is that of British
Railways Board v Pickin. 12

 

The case of Evans,13 in which
the government refused to disclose the 27 letters that Prince Charles had sent
by relying on the educational convention. The court however, decided that the
certificate written by the Attorney General was unlawful under the FOIA 2000
and was also conflicting with EU law and thus, released the letters to the
public. Lord Wilson stated that, ‘It invoked precious constitutional principles
but among the most precious is that of parliamentary sovereignty, emblematic of
our democracy.’ 14 This
suggests that parliamentary sovereignty is still relevant today and will be as
it contributes to democracy.

 

The case displays how the courts were not reluctant to act with
authority in order to keep the separation of powers boundaries and ignored the
intentions of parliament. Stating they believed parliament would not have
intended for the executive to have the power to override. Evidently, as the
courts become bolder, parliamentary sovereignty and Dicey’s views become
inadequate, as seen by the courts refusal to apply an Act of Parliament in
Jackson.

 

The Parliament Act
1911, restricts the power of the House of Lords and gives supremacy to the
House of Commons, which the government is responsible for as long as the prime
minister can keep their majority. This questions the validity of parliamentary sovereignty,
as when passing an Act of Parliament, it must go through the 2 houses and be
granted royal assent, which is merely a convention. However, the executive are
essentially the ones making the laws. This gives parliament little scope to
challenge the executive implying they are not the supreme body in the UK
constitutional arrangement. This is supported by the Salisbury Convention, in
which the House of lords will not go against a 2nd/3rd
reading of government legislation if in their manifesto. Also, it is common
knowledge, that there are political restraints on what laws parliament can
enact. For example, they would never enact a law that supports racial
discrimination.

 

There have been many different interpretations of parliamentary
sovereignty that may be more accurate than Dicey’s traditional account. Those
who subscribe to the new view, manner and form theory, believe parliament is
capable of controlling certain aspects but not all, rendering it not sovereign.15 They
believe it should be made harder for parliaments to amend/repeal Acts of
parliament but not impossible. Yet, this erodes parliamentary sovereignty as
they would no longer be the supreme law-making body if there are restrictions
in place.  The supporters of this view
believe it accurately describes the UK constitution today.

 

‘The classic account given by Dicey of the
doctrine of the supremacy of Parliament, pure and absolute as it was, can now
be seen to be out of place in the modern United Kingdom. Nevertheless, the
supremacy of Parliament is still the general
principle of our constitution.’16   Lord Steyn highlights the fact that the
traditional view no longer stands. The
 Jackson case 17
questioned the validity of the 2004 Hunting Act, as they claimed the Parliament
Act 1949 was secondary legislation as it was made using the 1911 act procedure.
So, due to the fact it did not use the normal procedure for enacting
legislation, it was claimed to be unlawful as it was made without the consent
of the Lords. The courts rejected this and stuck to the fact they must uphold
Act of Parliaments authority.  The case,
supports the manner and form concept as does the Australian case of Trethowan.18
Having been established in law it allowed them to bind future parliaments legally,
ultimately opposing the dicean view.

 

The Sewel convention
divides power to the devolved nations. The Scottish Parliament can enact
primary legislation on most matters.19
Although, in theory parliament could legislate for Scotland, they do not as it
would be unpopular with the voters and it would also undermine the concept of
devolution. In the case of Miller,20
the issue of whether the Sewel convention had any relevance was brought up.
However, the court believed it was not in their jurisdiction and was a
political matter. 21 I
believe that in the future, as this becomes more embedded in the UK
constitution, it would be extremely difficult for parliament to interfere and
retain its authority, as it has distributed its powers to the devolved nations.
22

 

In conclusion, Dicey’s
traditional account of parliamentary sovereignty remains accurate to an extent,
mainly on a theoretical basis. On a practicality level however, it does not
hold as much power as it once did. Instances over time have both contested and
agreed with Dicey’s view; as such our current Prime Minister, Theresa May,
stated Brexit will make the UK a sovereign country again.23  I believe this strengthens the argument for
the insignificance of Dicey’s account, as she admits it is no longer the
supreme authority. Thus, the collaboration of evidence clearly signifies
Dicey’s version of parliament sovereignty to be a concept true at the time, but
not in today’s society. I believe Dicey’s account to be under pressure and will
gradually become less relevant over time and more out of place, particularly as
other ideas prevail.

1  Dicey, ‘Introduction
to the study of the law of the constitution’ (1855)

2 R(Jackson) v Attorney General 2005
UKHL at 9

3 Bill
of Rights Act 1689, (1)

4 European
Communities Act 1972

5 Wade
‘The basis of legal sovereignty’ (CJL
173) 1955

6  R (Factortame) v Secretary of State for
Transport 1990 2 AC 85

7
Chris Taylor, ‘Constitutional and administrative law’ (4th edition,
Pearson 2015) 46

8 Costa v ENEL 1964 E.C.R 585

9 ibid (563-94)

10 R (On the Application of Miller) v Secretary
of State for Exiting the European Union 2017 UKSC 5

11 R v Jordan 1967 Crim LR 483

12 1974
AC 765 

13 R (On application of Evans) v Attorney
General 2015 UKSC 21

14 Ibid, 168

15 Mark
Elliott & Robert Thomas, Public Law (Oxford
University Press 2017) 240

16 R (Jackson) v Attorney General 2005
UKHL 56 para 102

17 R (Jackson) v Attorney General 2005
UKHL 56

18 Attorney
General for New South Wales v Trethowan 1932
AC 526

19 Scotland
Act 1998

20 R (On the Application of Miller) v Secretary
of State for Exiting the European Union 2017 UKSC 5

21 ibid, 141,145

22  Mark Elliott, ‘Parliamentary sovereignty under pressure’ International Journal of
Constitutional Law, Volume 2, Issue 3 (July 2004) 545-627

23 Theresa
May’s Conservative Conference Speech; key quotes (BBC website, 2 October 2016)
.