"The orthodox doctrine of the supremacy of Parliament can no longer be regarded as an immutable part of British constitutional law.

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The traditional notion of the supremacy of Parliament can no longer be regarded as applying. This much can be seen from a relatively basic examination of Dicey’s definition of Parliamentary sovereignty. If we go forward through the major events involving cases of Parliamentary sovereignty since Dicey’s definition, attempting to match up and verify the definition to the actual outcome of the event, we would come across problems. This point is best shown if we break down a question such as “is Parliament sovereign?” into much more specific questions in an attempt to avoid a generic “it is and it isn’t it” response. What we should do is ask if/how/to what extent Parliament is sovereign in regards to questions of devolution of powers, ex colonial powers, the European Union, Human Rights, and the relationship it has with Judges. An answer to one of these questions should perhaps not be applied to the others as a definite answer, in the same way that a Doctor wouldn’t treat two patients with different forms of cancer in the same way. The separation of the issue is vital and an attempt to get an objective answer to a question involving Parliamentary sovereignty is maybe unattainable.

First let us look at Dicey’s definition of Parliamentary sovereignty:

“The principle of Parliamentary sovereignty means neither more or 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 recognized by the law of England as having a right to override or set aside the legislation of Parliament.”1

1

Dicey, The Law of the Constitution (1885), p39-40

This definition became a fundamental principle of the law, as Turpin and Tomkins say in British Government and the Constitution:

“the courts have held that the statutes enacted by Parliament must be enforced, and must be given priority over rules of common law, over international law binding upon the United Kingdom, over the enactments of subordinate legislative authorities , and over earlier enactments of Parliament itself.”2

Let us look at an example of Parliamentary sovereignty in action. In the case of British Railway Board v Pickin3, Mr Pickin bought a piece of land close to the railway line with the probable intention of gaining control of the land underneath the line if the line was discontinued. This did not happen however due to a private members bill from British Railway. Mr Pickin wanted a provision of the bill disregarded on the grounds that Parliament had been misled. This was rejected by the House of Lords. Lord Reid stated that:

“ the function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions”.4

In Jackson v Attorney-General5 nine Lords of Appeal in Ordinary showed the reluctance of judges to question acts of Parliament when upholding the Hunting Act and Parliament Act 1949 with Lord Nicholls stating how the courts will not look behind acts to investigate the process in which they are enacted. These two cases both seem to show that Parliamentary sovereignty is alive within judicial thinking. However in the same way that a soldier may not choose to follow orders, a judge could choose not to follow an act of Parliament if it was especially dangerous. Events
2

Colin Turpin and Adam Tomkins, British Government and the Constitution (2007), p40, Cambridge: Cambridge University Press 3 [1974] A.C. 765 4 ibid 5 [2006] 1 A.C. 262

which would lead to that event would not be probable, but still would be possible in the right circumstances. However it would be safe to say that in all likelihood judges will respect Parliamentary sovereignty in matters regarding their ability to question an act. Lord Woolf MR in Droit public – English style however states that “ ultimately

there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold”6. Lord Woolf here is referring to the rule of law in regards to reviewing the legality of executive action which could even override Parliamentary sovereignty.

The issue in regards to commonwealth countries is that when independence from Parliament is granted, in theory, Parliament should be able to repeal that independence since it has the right to make or unmake any law. This issue seems to be that Parliament could choose to repeal independence but the newly independent country could simply refuse to obey. Such facts were considered in Manuel v Attorney General7 in which the court were asked to consider if the Canada Act 1982 was ultra vires. Sir Robert Megarry states that “once statue has granted independence to a country, the repeal of the statute will not make the country dependent once more; what’s done is done”8, there is a clear distinction between what Parliament could do in theory, and what would have any kind of meaningful effect. However looking back to Dicey’s definition, we can see that the right of Parliament to make or unmake any law it wishes remains intact regardless of whether it is followed or not. Also since Parliament has voluntarily given up control of an overseas territory through legislation it is not a third party “person or body” overriding said legislation. Wade sums up the current situation on his article Sovereignty Revolution or Evolution; “Dismantling the British Empire in no way alters Parliament's sovereignty over the remainder.”9 It is useful to think of an overseas territory as a limb non essential for survival such as a finger. You can choose to
6 7

Lord Woolf MR, Droit public – English style (1995), PL57, 69 [1983] Ch. 77 8 ibid 9 Wade, Sovereignty Revolution or Evolution, L.Q.R. (1996), 112(Oct), 568-575

remove it, you can say you will get it re attached (although suspecting it’s too late) yet your personality was not contained in the finger, and therefore you are the same person.

The devolution of Ireland Scotland and Wales has a similar set of facts to that of the independence of commonwealth countries. The theoretical ability of Parliament to repeal the Scotland Act 1998, for example, would remain intact. However whether the Scottish would recognise such a repeal would be another question. The potential damage to Parliamentary sovereignty seems to be much less than the potential damage from commonwealth countries. The devolution acts are not giving up all power in the same way; Parliament remains sovereign in some areas. These Westminster reserved areas help keep the United Kingdom united. These involved areas involve international relations, immigration, power policy and other such areas of constitutional framework. The Scotish Parliament has power over education, transport, tourism and other less constitutional issues. So it is as if Parliament is not giving up its sovereignty, rather allowing different bodies to manage parts of the sovereignty. Wade’s “sovereignty over the remainder” seems to remain true for situations of devolution. Parliamentary sovereignty doesn’t seem to matter too much on how much it is actually sovereign over and since theoretical existence of ability to make and unmake any law still exists, and since UK law does not recognise the ability of devolved governments to rule against an act of Parliament in areas it maintains possession, Parliamentary sovereignty is technically still in force.

The problems for Dicecy’s definition come from international law, especially the EU and European Convention on Human Rights. The EU was well established when the UK joined. Van Gend en Loos10 had established that “The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights”11, when dealing with direct effect. This means that the UK
10 11

Case 26/62 ibid

could not claim that they were somehow scammed into joining the EU and having their sovereignty limited without due knowledge. There was no risk of the UK thinking the EU was similar to the UN being able to choose to get involved or not at will. This suggests that Parliamentary sovereignty has indeed suffered a large blow. Parliament could choose to leave at any time but the discussion should be focused on the current state of affairs rather than hypothetical situations. The Factortame12 case is perhaps the most important case when considering Parliamentary sovereignty in regards to the EU. The case highlighted the supremacy of EU law over national law where the EU has competence since the ECJ held that national courts could strike down laws which went against the EU. The House of Lords in effect struck down Merchant Fishing Act 1988 which would mean that there is indeed body which can “override or set aside the legislation of Parliament”. Even if the UK did choose to leave the EU the damage would have already been done, Parliament would at one stage have had its sovereignty limited. Also, looking at the facts of the case, it would seem that the notion of the latter act of Parliament taking priority over the former was in jeopardy. As Wade explains:

“The established rule about conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated, since the later Act in this case was the Merchant Shipping Act 1988, yet it was disapplied under the European Communities Act 1972.”13

Parliament can’t be described as being sovereign if it is limited by previous Parliaments. Paul Craig takes a different view which Wade calls the construction view. This view involves assuming that Parliament does not intend to override ECC law and ECC law will prevail unless another act of Parliament says differently. This seems to be taking a counterintuitive view of the situation in an attempt to preserve Parliamentary sovereignty. Judges and academics may be too loyal to the traditional
12 13

2 AC 85 Wade, Sovereignty Revolution or Evolution, L.Q.R. (1996), 112(Oct), 568-575

notion of Parliamentary sovereignty and may attempt to twist various events in EU thought to protect Parliamentary sovereignty; this could result in an unnatural twist on events which would otherwise be quite simple to someone who approaches the situation with a more cold and logical frame of mind. To help show this, Wade, in paraphrasing Craig says that Craig’s “construction view is more likely to commend itself to judges because it is based upon the will of Parliament”14. Of course Parliamentary sovereignty is necessary to an extent, without it there would be confusion as to the hierarchy of law, but it is dangerous to give Parliamentary sovereignty the status of an eternal objective truth. Parliament can give up a certain amount of power and still fulfil the important role of providing clarity and structure.

The European Convention on Human Rights has a similar effect on Parliamentary sovereignty as compared to the EU. Individuals can make appeals to the European Court of Human Rights and Domestic (Human Rights Act 1998) courts if they feel that their Human Rights have been breached. In R v Secretary of State for the Home Department15 Lord Hoffman made some important points about the current status of Human Rights in regards to Parliamentary sovereignty.

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights but the principle of legality

means that Parliament must squarely confront what its doing and accept the political cost.”16

The reoccurring theme of Parliament being able to do something, but probably not actually doing it again comes up. This type of argument in favour of Parliamentary sovereignty is a weak one. For example I could, if I wanted, go outside and murder someone, or I could take up acting lessons and become a big Hollywood actor. Just

14 15

Wade, Sovereignty Revolution or Evolution, L.Q.R. (1996), 112(Oct), 568-575 2 AC 115 16 ibid

because these things are feasible doesn’t mean I can use them as strong evidence in an argument for myself becoming a killer or an actor. That is why, as I mentioned before, it is best to look at the current state of events rather than speculate too much about possibilities.

Overall Parliamentary sovereignty seems to retain its orthodox meaning in regards to non international matters due to the history of cases decided for Parliamentary sovereignty. Any issues of devolution or giving power to overseas territories does not impede on Dicey’s definition. However in regards to the EU and Human rights Dicey’s definition is violated. Arguments defending Dicey’s definition against the EU and Human Rights revolve around hypothetical situations which are not able to be proven for the very simple matter of us not knowing what the future will hold.

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