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“The classic count 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” [per Lord Steyn, in Jackson v ...

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“The classic count 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” [per Lord Steyn, in Jackson v Attorney-General [2005] 3 WLR 733, at para.102]. Discuss. Word Count: 1198 Bibliography: The Sewel Convention. Paul Bowers. Parliament and Constitution Centre. Nov 2005. P4-10 The British Constitution. Anthony King. Oxford University Press. Page 20. https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/factor-1.htm Accessed 10.11.2019 Concentrate Public Law. Sixth Edition, Colin Faragher. Oxford University Press. P120-121 Public Law. Mark Elliott & Robert Thomas. 3rd edition. Oxford University Press. P373 -375 https://www.independent.co.uk/news/uk/politics/european-convention-human-rights-eureferendum-brexit-theresa-may-a6999701.html Accessed 12.11.2019 Parliamentary Sovereignty and the Human Rights Act. Alison Young. Bloomsbury Publishing 2008. P3-7 The British Constitution. Anthony King. Oxford University Press. https://www.parliament.scot/visitandlearn/12506.aspx Accessed 13.11.2019 https://www.parliament.scot/visitandlearn/12506.aspx Accessed 13.11.2019 Devolution, Brexit and The Sewel Convention. Professor Gordon Anthony. P2-5

Dicey stated that one feature that characterised England’s politics was the “omnipotence or undisputed supremacy throughout the whole country of the central government.”1 Dicey insisted on the absolute sovereignty of Parliament. Dicey’s definition of Parliamentary Sovereignty was as follows: “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament . . . has, under the English constitution, the right to make or unmake 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.”2 However, some may argue that this definition can now be seen as out of place in the United Kingdom, today, and that Parliament can be seen as “self-embracing”, which means that Parliament can place some limitations on the use of its own powers. The power to change law includes the power to change law affecting Parliament itself. The principles of Parliamentary Sovereignty were developed in the dicta of Jackson v. Attorney General. The case was the first time that the judiciary questioned the validity of acts of Parliament (Parliament acts 1911 and 1949). Three of the nine judges expressed limitations of Parliamentary Sovereignty. Overall, the classic account of Parliamentary Sovereignty can be seen to be out of place in the modern United Kingdom, although the supremacy of Parliament is still a general principle of our constitution. The United Kingdoms membership of the European Union (EU) has presented a fundamental challenge to the orthodox perceptions of Parliamentary Sovereignty, meaning that Dicey’s doctrine on the supremacy of Parliament may be seen as out of place in a modern United Kingdom. This is because EU law is applied uniformly throughout the EU and also prevails when there is a conflict with national law. Whilst the European Communities Act 1972 remains in tact, EU Law is supreme. This can be further exemplified through the case of R (Factortame Ltd) v Secretary of state for Transport, where a Spanish fishing company claimed that the UK had breached EU Law by requiring ships to have a majority of British owners if they were registered in the UK. The courts subsequently restrained the application of the Act of Parliament pending trial and ultimately disapplied the Act when it was found to conflict with EU law – showing that EU law is supreme to Parliament, thus jeopardising Dicey’s doctrine of Parliament, showing that it is out of place in a modern UK.3 Nevertheless, the supremacy of Parliament still remains a general principle of our constitution as the 1 The British Constitution. Anthony King. Oxford University Press. Page 20. 2 https://publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633ii/633we02.htm Accessed 29.10.2019 3 https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/factor-1.htm Accessed

10.11.2019

European Communities Act 1972 can be repealed by any Parliament. 4Furthermore, the UK takes a dualist strategy when dealing with international law, so international agreements (such as EU law) are not binding in domestic law until Parliament incorporates it, so therefore showing that Parliamentary sovereignty is still a general principle of our constitution. Nevertheless, the EU has greatly affected the UK’s constitutional arrangements. Brexit, although a lengthy and complex process, will restore Dicey’s orthodox doctrine of Parliamentary Sovereignty.5 Moreover, the Human Rights Act (HRA) 1998 can also be seen to have affected Parliamentary Sovereignty, as it incorporates the rights set out in the European Convention on Human Rights (ECHR) in British law. This causes Dicey’s doctrine to be out of place in a modern United Kingdom. Former Prime Minister, Theresa May, thinks Britain should leave the ECHR, stating that “it binds the of the UK Parliament”.6 The compatibility of the HRA and Dicey’s conception of Parliament can be questioned. The main sources of conflict can be found in sections 3 and 4 of the HRA.7 Section 3 (1) HRA makes it obligatory for the courts to read primary and subordinate legislation in a way which is compatible with the Convention rights – “so far as it is possible to do so”, and section 4 HRA allows the courts to “make a declaration of incompatibility”. Showing that Dicey’s conception of Parliament being able to “make or unmake any law”8 is now out of place in the modern United Kingdom – due to the HRA. Also, devolution has caused “The classic count given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was” to be out of place in the modern United Kingdom. This is because devolution has established a new constitutional relationship between different parts of the UK. For instance, the Scottish Parliament can pass laws on devolved matters like education and justice.9 Despite this, Westminster is still supreme due to devolution being enacted by legislation from the UK Parliament. Devolved institutions owe their existence to the UK Parliament and can therefore have their powers abolished by legislation made by the UK Parliament. This shows us that despite the supremacy of Parliament being out of place in a modern UK; it is still a general principle of our 4 Concentrate Public Law. Sixth Edition, Colin Faragher. Oxford University Press. P120-121 5 Public Law. Mark Elliott & Robert Thomas. 3rd edition. Oxford University Press. P373 -375 6 https://www.independent.co.uk/news/uk/politics/european-convention-human-rights-eu-referendum-

brexit-theresa-may-a6999701.html Accessed 12.11.2019 7 Parliamentry Sovereignty and the Human Rights Act. Alison Young. Bloomsbury Publishing 2008. P3-7 8 The British Constitution. Anthony King. Oxford University Press. 9 https://www.parliament.scot/visitandlearn/12506.aspx Accessed 13.11.2019

constitution. Nonetheless, the Sewel Convention means that the UK Parliament cannot legislate on a devolved measure without the consent of the Scottish Parliament.10 The Sewel Convention has been criticised for being used too often and could prevent the UK from leaving the EU, thus preventing the UK from restoring some Parliamentary Sovereignty to the UK. Again, showing that even though the supremacy of Parliament is still a general principle of our constitution, it can be seen as out of place in the modern UK. In conclusion, the statement “The classic count 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” [per Lord Steyn, in Jackson v Attorney-General [2005] 3 WLR 733, at para.102] is correct due to UK membership of the EU, adoption of the HRA and devolved powers to other parts of the UK such as Scotland.

10 Devolution, Brexit and The Sewel Convention. Professor Gordon Anthony. P2-5...