Described theories have come under review recently, with

Described by Lord
Bingham as ‘the bedrock of the British constitution’1
and by T.S.R. Allan as providing ‘finality and certainty’2,
parliamentary sovereignty has long been one of the main, if not the main,
guiding principles of the English constitution. Albert Venn Dicey’s traditional
account of parliamentary sovereignty consists of three main factors: that Acts
of Parliament cannot be declared illegal; that Parliament can make or unmake
any laws, and thus that Parliament cannot bind its successors or be bound by
its predecessors. Indeed, in his seminal work, Introduction to the Study of the Law of the
Constitution,3
Dicey described parliamentary sovereignty as such:

The principle of parliamentary sovereignty means neither more nor less
than this, namely, that Parliament thus defined 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.4

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Dicey’s theories have come under review
recently, with scholars such as N.W. Barber, who posits that parliamentary
sovereignty is a relic of the past,5
and Sir William Wade, who argued that there had been a judicial revolution
which had destroyed parliamentary sovereignty,6
questioning whether his first and most important feature of his doctrine still
applies.

The first of the four
features of Diceyan orthodoxy parliamentary sovereignty is that Acts of
Parliament cannot be declared illegal. This has been subject to scholarly
scrutiny recently, because of the current legal relationship between the EU and
the UK. After the UK joined the EEC, the primacy of European law was
acknowledged, as per the European Communities Act 1972, which stated:

All such rights, powers, liabilities, obligations and restrictions from
time to time created or arising by or under the Treaties… are without further
enactment to be given legal effect or used in the United Kingdom7

Lawmakers avoided
challenging this for many years until the case of Factortame8,
when it became unavoidable. Factortame
involved Spanish shipowners using a loophole in the Merchant Shipping Act 1894
to fish in UK waters, and sell in Spain. In response to this, in 1988, the
Secretary of State for Transport modified the Act to close that loophole and
prevent the shipowners fishing in UK waters. The new Act provided that vessels
may only be registered as British if they were three-quarters owned by British
companies and three-quarters of the company directors were British citizens.
The Spanish shipowners claimed this was discriminatory based on nationality and
sought an injunction against the Crown to prevent the modified Act from coming
into force. The House of Lords referred the matter to the European Court of
Justice (ECJ) as UK courts are unable to issue injunctions against the Crown.
The ECJ found that ‘the principles of freedom of establishment,
non-discrimination on grounds of nationality’ meant that the Merchant Shipping
Act 1988 was not compatible with current legislation regarding shipping.9
The claimants won, and Factortame
confirmed Westminster’s subordination to EU law. As Dicey himself said, the
‘subordination of a law-making body’ is identified by three signs, one of which
is ‘the existence of… persons, judicial or otherwise, having authority to
pronounce upon the validity or constitutionality of laws passed by such
law-making body’.10
While it may be argued that Parliament remains sovereign because it voluntarily
surrendered its sovereignty, this is not a fair assessment of Dicey’s
traditional account of parliamentary sovereignty. Dicey is clear; there cannot
be a body that can question the validity of the laws of Parliament. If
Parliament were indeed sovereign as per Diceyan orthodoxy, then the ECJ should
not have been able to question the validity of the Merchant Shipping Act 1988.

The case of R (On the Application of Evans) v Attorney
General11 was a landmark case that set aside a statutory
provision in the Freedom of Information Act 2000 that allowed a ‘government minister
to override a judicial decision of which he disapproves’12.
Evans, a Guardian journalist, had requested disclosure of correspondence
between Prince Charles and government ministers under the FOIA 2000. Allan
asserts that ‘there was arguably a strong public interest in the disclosure of
the nature and extent of Prince Charles’ influence on government decision
making’13.
The test for whether the information should be released was if ‘in all the
circumstances of the case, the public interest in maintaining the exemption
outweighs the public interest in disclosing the information’14.
As per this rule, the Upper Tribunal ruled in favour of disclosure, however the
Attorney General invoked section 53 of the Act, allowing for an ‘accountable
person’ to provide a certificate stating that he has ‘on reasonable grounds’
formed the opinion that the statute falls within the boundaries of exception,
and that there need not be any disclosure. While on the first hearing, the
Divisional Court upheld the certificate, the Court of Appeal saw it as illegal.
The case made its way to the Supreme Court, with a majority ruling in favour
that the Attorney General was unable to issue the certificate. In his dissenting
judgement, Lord

 

However, this may have
changed recently. Dicey’s own theories state that no person or body could question
the legitimacy of Parliament. This was explored in the case of R (On the Application of Miller) v Secretary
of Exiting the European Union, which affirmed the fact that the executive
was subordinate to Parliament. Miller found
that the Secretary of State for Exiting the European Union was unable to use
the Royal prerogative to repeal the European Communities Act 1972. This is in
keeping with Diceyan orthodoxy, as, because of the existence of the separation
of powers, the executive is thought of as a separate entity to Parliament.
Dicey himself stated that parliamentary sovereignty means that there can be no
‘executive… which can pronounce void any enactment passed by the British
Parliament’15
and Miller found that this assertion
was true. Despite Lord Reed’s ‘powerful’ judgement, that leaving the European
Union was indeed under the Secretary of State’s jurisdiction, the European
Communities Act 1972 neither ‘contemplates nor accommodates the abrogation of
EU law’ on withdrawal ‘by prerogative act without prior Parliamentary
authorisation’16.
Indeed, as stated in the majority judgement:

‘There is a vital difference between changes in domestic law resulting
from variations in the content of EU law arising from new EU legislation and
changes in domestic law resulting from withdrawal by the United Kingdom from
the European Union.’ 17

While there can be no doubt that it is
within the Secretary of State’s jurisdiction to enter and withdraw from
international treaties under the Royal prerogative, there can also be no doubt
that, as per the European Communities Act 1972, that EU Treaties are not
international law; ‘they are a source of domestic law’18.
In short, Parliament is sovereign over the executive and Miller found that there was no statutory provision in the 1972 Act
that would allow for the Secretary of State to repeal it and leave the European
Union without parliamentary approval.

The second of Dicey’s
features of parliamentary sovereignty is that Parliament may make or unmake any
law it chooses. This was explored in the case of Blackburn v Attorney General19, where the issue for the courts was
whether Parliament had the right to sign the Maastricht Treaty as signing it
meant that the sovereignty of Parliament would have been curbed.

In summary, most of the features of Dicey’s
traditional account of parliamentary sovereignty remain accurate. While subject
to practical, political and conventional limitations, Parliament can, in
theory, make and unmake any laws it chooses. However, there is doubt as to
whether Acts of Parliament cannot be declared illegal. Factortame leads us to believe that there currently exists a body
which may set aside legislation enacted by Parliament, while Miller and Evans both show that the executive is not capable of setting aside,
or questioning, Acts of Parliament.

1
2005 UKHL 56 9

2
T.R.S. Allan, ‘Law, democracy, and
constitutionalism: Reflections on Evans v Attorney General’

(2016) 75(1) Cambridge Law Journal 39

3 AV
Dicey, Introduction to the Study of the
Law of the Constitution (8th edn, Macmillan 1915)

4
Dicey, 3-4

5 N.
W. Barber; The afterlife of Parliamentary
sovereignty (International Journal of Constitutional Law, Volume 9, Issue
1, 2011) Pages 144–154,

6 William
Wade, Sovereignty – Revolution or
Evolution? (112 LAW Q. REV., Sweet & Maxwell, 568-575 1996)

7
European Communities Act 1972, s2(1)

8 1991
C-221/89

9
Ibid 18

10 Dicey,
40

11
2015 UKSC 21

12
Allan, 1

13
Ibid, 5

14
Freedom of Information Act 2000, s 2

15
Dicey, 39

16
2017 UKSC 5 77

17
Ibid 78

18
Ibid 86

19
1971 2 All ER 1380

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