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When discussing the term ‘Parliamentary Sovereignty’,
Professor A V Dicey is often referred to. He is the author to the illustrious
book ‘the study of the law of the constitution’, in which he shared his own
definition – “The principle of parliamentary sovereignty means neither more or
less than this, namely, that parliament has, under the English constitution the
right to make 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
legislation of parliament”1.
Dicey essentially implies that the Parliament has unlimited legislative power
and that legislation can only be amended, changed or removed by Parliament
itself, and not by any other outside authorities. Dicey articulated the
doctrine of the sovereignty of Parliament in its most potent form. Quoting Sir
Edward Coke from Blackstone’s Commentaries, Dicey describes ‘the power and
jurisdiction of Parliament’ as ‘so transcendent and absolute that it cannot be
confined, either for causes or persons’. The UK constitution has been around
since the nineteenth century and has been fundamental in upholding this.
However, it has been a topic of much discussion that this Doctrine has been
tarnished of late by its ties to the European union, which undermines
Parliamentary Sovereignty.

After 1688, the doctrine of parliamentary sovereignty has
greatly progressed. This is because parliament had little power when creating
law and key decisions as that role was assumed by the monarch at this time. An
example of this can be seen with Dr Bonham’s case (1610). The main principle of
this is that ‘legislation passed by the English parliament can be considered as
sub-ordinate to the common law decisions that made by
trial and appellate court judges, and any statute that is contrary to
“common right and reason” must be declared void.’ S.E Thorne2.
At this time, there was no real intent to transfer sovereign power from the
monarch over to parliament. This was due to James II belief in royal divine
power. This changed following Prince William of Orange of the Netherlands
invaded England due to James’ pro-protestant regime and their alliance with the
French. This was named the glorious revolution of 1688. By 1699 William and his
wife Mary declared themselves as dual monarchs and introduced our bill of
rights, which eventually created the Doctrine of parliamentary sovereignty. As
the bill of rights gave parliament more power such as freedom of speech, and
ability to hold elections. This in turn, supports Dicey’s theory of
parliamentary sovereignty, as the bill of rights still upholds parliamentary
authority in todays society. Dicey stated ‘No person was punishable
except for a distinct breach of law established before the ordinary courts of
the land3.’
This essentially means that no one, not even the monarch, are exempt from the
law, meaning the court holds a strong motion of equality.

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The agreement in 1688, which in turn created an evenly
balanced constitution, which is more commonly known as the ‘separation of powers’,
parliament holds the sovereign authority. This is highlighted by the commons,
lords and the monarch, which not one institution has more power than the other
as each foundation provides ‘checks and balances’ on one another to assure no
single institution dominates, and can legislate on their own relevant areas.
However, prior to the Parliament Act 19114,
the house of lords had great power. The relevant act sought to remove the Lords
power to ‘veto’ money bills, by replacing it with the power of delaying
monetary bills up to 5 years. This as a result weakened the conservative
majority upper house, which balanced out the power more evenly. This again
supports Dicey’s view of Parliamentary sovereignty as he stated ‘that no
person or body is recognised by the law of England as having a right to
override or set aside legislation of parliament’.

As of 1973, the doctrine of parliamentary supremacy came
under attack, following the subsequent action of the UK becoming the ninth
member of the ‘ECC’ the ‘European Economic Community’. 1st
of January 1973 marked a huge day for the country as this was when membership
with the EU first began. However, Parliamentary Sovereignty suffered as a
result of this. This is because an act of parliament could now be overruled if
it clashed with any European law. An example that highlights this point can be
seen when Lord Bridge said in the Factortame case ‘Whatever limitation of its
sovereignty parliament accepted when it enacted the European communities act
1972 was entirely voluntary. Under the terms of the 1972 act it has always been
clear that it was the duty of the UK court when delivering its final judgement,
to override any rule of national law that was found to be in conflict with any
directly enforceable rule of community law.’ The Factortame case of 1992
ultimately led to the establishment that the UK parliament has with no doubt
voluntarily assumed its inferiority to European law which does challenge
parliamentary sovereignty.  Also, following
this case the European court of Justice enforced that the English courts were
no longer permitted to shield British fisherman following the Merchant Shipping
Act 1998, as it directly conflicted with the Treaty of Rome 1957.

 Another
example which highlights how the EU has tarnished parliamentary sovereignty is
how the ‘ECHR exists separately from institutions of the European Union,
but it does have a fundamental impact on EU law decisions, such as a recent
decision that prisoners convicted of lesser offences should have the right to
vote – a decision that conflicted with the will of Westminster.’ Professor William Wade also has a strong opinion on how the UK’s
relationship with the EU has underpinned Parliamentary Sovereignty. He argued
that the UK’s entry to the EU has triggered a ‘constitutional revolution’
stating that ‘British judges have transferred their allegiance from parliament
to the EU as the ultimate law maker for Britain’. Professor Chalmers conducted
a survey which further highlights EU’s influence on our parliamentary supremacy.
The survey showed that 15% of UK laws today have stemmed from guidelines based
of EU law. In addition to this, the survey also found that almost half of the
UK’s legislation which has extensive influence economically is again a result
of EU law. Dicey’s entire theory that parliament can pass any law no matter
what the topic concerns can be seen as outdated. As Dicey’s book on ‘Law of the
Constitution’ was originally written 1885, long before the UK’s membership of
the European Economic Community in 1973. So his doctrine in this instance is
not an accurate reflection of parliamentary sovereignty as seen in today’s
society.

On the 23rd of June 2016, there was a nationwide
referendum on whether the UK should leave the European union, and was often referred
to as ‘Brexit’ by many. The UK voted to leave the European union with 51.9% of
the electorate voting this way. It is argued that parliament may regain most of
its once stolen sovereignty by March 2019 following the European Union
(withdrawal) bill 2017-2019. This evoked article 50 of the treaty of the
European Union. It is expected that parliament will retrieve most, if not all
its original sovereignty once finalised. However, this is essentially dependent
on the agreement between the UK parliament and the European parliament. An
example of this could be said if the EU permits the UK to still trade with
European countries, as due to trade union rules, it would imply that the UK may
again dispose of some of its sovereignty. This would in turn lead to the
creation of what is called a ‘Soft Brexit’. Whereas a ‘Hard Brexit’ would
therefore regain all of our parliamentary sovereignty which would make Dicey’s
reflection on this matter more up to date and correct. However, Dicey had his
own view of referendum’s as a whole and believed they would consequently affect
parliamentary sovereignty for the better if they do occur. He stated may
diminish the admitted and increasing evil of our party system’, and ‘ensure
that legislation shall be in conformity with popular opinion’. He also stated,
‘It is probable, if not certain, that anyone who realises the extent to which
parliamentary government itself is losing credit from its too close connection
with the increasing power of the party machine, will hold with myself that the
referendum judiciously used may, at any rate in the case of England, by
checking the omnipotence of partisanship, revive faith in that parliamentary
government which has been the glory of English constitutional history’. His
standpoint on this further supports his view on parliamentary sovereignty.

 

 

In spite of the fact the UK will most likely regain most of
its lost parliamentary sovereignty following The European Union (Withdrawal)
Bill 2017-2019, the UK still won’t possess as much as Dicey states within his
book. This is as a result of another reason, such as the Devolution scheme.
Professor Bogdanor offers an in site on this topic. He states ‘devolution
involves the dispersal of power from a superior to an inferior political
authority. More precisely, it consists of three elements: the transfer of a
subordinate elected body on a geographical basis of functions at present
exercised by Parliament. These functions may be either legislative, the power
to make laws, or executive, the power to make decisions within an already
established legal framework’. Devolution in
the UK has ultimately shifted sovereignty and legislative powers to Wales,
Northern Ireland and Scotland, thus giving them a sense independence. This has
clearly progressed as in 2015 Scotland engaged in a nationwide referendum
regarding their independence, which was voted as ‘No’, however it is becoming a
growing topic in the UK and another referendum may not be out of the question.
Although each nation has differences in the individual systems, Westminster has
not stripped our bordering nations of their legislative sovereignty, despite
being able to do so. There are many different powers that are given to the
Northern Irish and Welsh assemblies as well as the Scottish Parliament, such as;
education, housing, health, transport. However, there are many powers that are
not devolved to these countries and are ultimately decided upon at Westminster.
Examples of such powers include Constitution, national security, foreign policy
and energy.  For example, the Scottish
parliament can pass any legislation it may concern, also being able to pass
laws on devolved matters too. Westminster’s parliament however does have to
power to pass legislation that conflicts with devolved matters, but they choose
not to. This is because it would render the devolution scheme pointless, as the
electorate of each country elects its members, it would be really unfair to do
so. An example of this can be seen in with the Abortion Act 1967, which makes
abortion illegal after the 24 weeks incubation, in England, Scotland, Wales and
Northern Ireland. The Scotland Act 2016 however made Abortion illegal again.
This further highlights Dicey’s point ‘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’. Although for parliament to enforce such powers
would be seen as unethical, thus enabling our neighbouring countries to pass
legislation on devolved matters like this one. This does highlight Dicey’s view
of how parliament holds no limits with its legislative power.

 

1
accessed
18 December 2017

2
accessed
8 December 2017

3
Neil Parpworth, Constitutional & Administrative Law, (9th edn,
Oxford University Press, 2017)

4 http://www.parliament.uk/about/living-heritage/evolutionofparliament/houseoflords/house-of-lords-reform/from-the-collections/from-the-parliamentary-collections-the-parliament-act/parliament-act-1911/accessed
17 December 2017

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