‘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 o PDF

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There have been extensive developments in the political and legislative structure of the United Kingdom since A. V. Dicey first published his account of legal theories and principles in 1885. Whilst his famous account of the doctrine of the supremacy of Parliament is generally considered to be “pure...

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There have been extensive developments in the political and legislative structure of the United Kingdom since A. V. Dicey first published his account of legal theories and principles in 1885. Whilst his famous account of the doctrine of the supremacy of Parliament is generally considered to be “pure and absolute”1, it is not unreasonable to consider that the doctrine could have become out of place. This essay will: discuss Dicey’s definition of parliamentary sovereignty; highlight the contemporary challenges to the doctrine and discuss the effects that these events have had on Parliament to determine whether it is truly sovereign in the modern United Kingdom. A.V. Dicey articulated the legal theory of the doctrine of parliamentary sovereignty in his book “An Introduction to the Study of the Law of the Constitution”2, in which Parliament is considered to be the supreme law-maker of the United Kingdom. Parliament is responsible for drafting and passing bills to become statutes, which are the highest level of legislation within UK law; as such Parliament could be considered legally omnipotent. Dicey’s definition covered three fundamental aspects: Parliament is entitled to pass laws concerning any subject matter; Parliament cannot bind its successor nor can it have been bound by its predecessors; no person or organisation, including the judiciary, may dispute the validity of an Act of Parliament. If an Act of Parliament should be passed that is incompatible with an earlier statute, it is the court’s responsibility to apply the most recent legislation under the doctrine of implied repeal- as supported by case law 3. In the case of Ellen Street Estates Ltd v Minister of Health [1934], provisions from the Housing Act 1925 s 46 that were inconsistent with those from the Acquisition of Land Act 1919 were said to take precedent. The provisions of the Acquisition of Land Act 1919 were repealed by implication, thus confirming that Parliament cannot bind future Parliaments. One event that altered, consequently limiting the supremacy of Parliament is the United Kingdom’s entry into the European Union (EU). The country became involved in the EU’s first wave of expansion in 1973 alongside Denmark and Ireland 4. All member states are bound to treaties such as the Treaty on EU 1992 in which the legal foundations of the EU are found. Similar to many individual states, the EU is structured under the doctrine of the separation of powers5. The judiciary is active in the Court of Justice. The legislative functions are represented in the Court of Auditors, Parliament and Council. The executive functions are implemented by the Commission which can take legal action against any member state of EU institution that it believes to be in breach of EU law. By joining the EU, the UK transferred some law-making power to an external organisation. While this may be viewed as a positive action in many ways- increased accountability and equality among states while upholding the values of democracy- the sovereignty of Parliament is definitely reduced. Some types of EU law can be directly applied by individuals in their own countries courts as soon as they are implemented, such as regulations. It is stated in the TFEU that a regulation is “binding in its entirety and directly applicable in all 1 R (Jackson) v Attorney General [2006] 1 AC 262 [102] (Steyn LJ). 2 AV Dicey, An Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund Inc 1982). 3 Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 (CA). 4 M Elliott and R Thomas, Public Law (3rd edn, Oxford University Press 2017) 341. 5 M Elliott and R Thomas, Public Law (3rd edn, Oxford University Press 2017) 343.

Member States” which gives a clear and usually undisputed view that regulations are directly applicable. These primary sources of EU law further demonstrate that parliamentary sovereignty has been limited as law is directly implemented from an external source. However, it could be argued that in a democratic country such as the UK the decision to enter into the EU and sign to agree with various legislation was one made by Parliament and as such Parliament is still maintaining its power. As has been seen throughout the Brexit process, Parliament chose to be a part of the EU and as a nation we have voted through referendum to remove ourselves. The European Court of Justice recently confirmed that the UK also holds the right to unilaterally halt the Brexit process and revoke Article 50 without approval from each of the other member states6. This suggests that UK Parliament still holds a considerable amount of control over its future although the concept of true sovereignty may be excessive and somewhat out of place in the modern UK constitution. Another factor which has affected parliamentary sovereignty is the devolution of government powers to Scotland, Wales, and Northern Ireland. The United Kingdom was formed through several uniting Acts: the introduction of Welsh constituencies being represented in English Parliament as of 15357; the union with Scotland in 17068; and the final addition of Ireland in 1800 9. The Scottish Parliament and Northern Ireland Assembly have general legislative competence; they can legislate on any matter as long as it does not interfere with certain protected subject matters such as international defence, EU law and human rights10. The Welsh Assembly initially held less power but has progressively expanded its devolved competence in areas such as taxation, transport and marine licensing 11 . While the powers of the devolved nations now cover a broad scope, the power is still limited and any nation seen to be exceeding their legislative rights will be subject to intervention from the UK courts. The fact that Scotland, Wales and Northern Ireland can produce primary legislation, albeit only relevant to their own nations, demonstrates a reduction in the sovereignty of Parliament. However, it could be argued that as Parliament initially granted these powers through its own legislation, the powers could be repealed. Thus, despite the deconstruction of centralised legislation throughout the United Kingdom, Parliament could be said to maintain a certain level of sovereignty. Furthermore, the treatment of constitutional statutes is different to that of ordinary statutes in such a way that it limits Parliament from amending them in the same way. Constitutional statutes are considered to be those which protect the rights of citizens and conditions the governments legal relationship with its people. For this reason, these statutes must hold a degree of permanency to accurately reflect the fundamental principles of a nations legal structure. In Thoburn v Sunderland City 6 Gov.UK, ' Wightman and Others v Secretary of State for Exiting the European Union' (GOV.UK, 6 November 2018) accessed 11 December 2018 7 Law in Wales Act 1535. 8 Acts of Union 1906. 9 Union with Ireland Act 1800. 10 Northern Ireland Act 1998, ss 5-8; Scotland Act 1998, ss 28-30. 11 Wales Act 2017.

Council12, Lord Justice Laws held that “Ordinary statutes may be repealed impliedly. Constitutional statutes may not.” Examples given of constitutional statutes are as early as the Magna Carta and as recent as the Government of Wales Act 1998. Despite the best efforts and intentions of those who draft constitutions, some areas will inevitably become outdated over time; it is then the courts role to interpret any provision which may be considered to be out of date. The special treatment of constitutional statutes, including the lack of implied repeal and the role of the courts to test such laws when necessary, shows another challenge to the sovereignty of modern Parliament. Finally, the High Court (and courts above) have the ability to make a declaration of incompatibility when legislation is found to be incompatible with the European Convention of Human Rights. Wherever possible, the judiciary must try to interpret and apply the law in such a way that it is compatible with the convention, but in some cases, this cannot be done. For example, a declaration was made during the Belmarsh case of 200413 when several foreigners were detained without trial. The declaration was made under s.4 of the Human Rights Act 1998 that s23 of Antiterrorism, Crime and Security Act 2001 was incompatible with articles 5 and 14 of the ECHR. This is considered a political matter more so than a legal matter, consequently the courts do not change the law but they significantly speed up the procedure in getting Parliament to act. This is another example of externals bodies having a strong influence on the actions of Parliament, supporting the notion that it is not entirely sovereign. To conclude, Dicey’s definition of parliamentary sovereignty may have been accurate when it the term was coined in 1885 but the nation has since evolved. The combination of the powers now held by the EU and those held by the devolved nations has reduced the strength of the UK Parliament in terms of legal supremacy. Additionally, the steps taken to prevent the casual amendment of constitutional statutes and the ability for judges to make declarations of incompatibility shows that Parliament does not have the level of authority over the law to be considered truly sovereign.

Bibliography 12 Thoburn v Sunderland City Council and other appeals [2002] All ER 223 (D) [63] (Laws LJ) 13 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 6.

Table of Cases A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 6 Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 (CA) R (Jackson) v Attorney General [2006] 1 AC 262 [102] (Steyn LJ) Thoburn v Sunderland City Council and other appeals [2002] All ER 223 (D) [63] (Laws LJ) Table of Legislation Law in Wales Act 1535 Acts of Union 1906 Union with Ireland Act 1800 Northern Ireland Act 1998, ss 5-8; Scotland Act 1998, ss 28-30 Wales Act 2017 Bibliography AV Dicey, An Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund Inc 1982) Gov.UK, Wightman and Others v Secretary of State for Exiting the European Union (GOV.UK, 6 November 2018) Accessed 11 December 2018 M Elliott and R Thomas, Public Law (3rd edn, Oxford University Press 2017) 341...