sovereignty stands as a significant notion in U.K’s constitution. It originated
at the time of William-III and Mary-II who came to a position of royalty
through sacrificing their own power and giving it to parliament.
Hence, the monarch’s royal prerogative is directly below parliament within the
late seventeenth and early eighteenth century.
This condition may be found within the Bill of Rights 1688, that regulations
should be created and/or revoked by parliament.
Dicey’s views of parliamentary
Sovereignty is that Parliament is the final legislative body and has the
capacity to sanction any law.
The second being that parliament is not to be bound by a forerunner nor bind an
The last of Dicey’s principles is that no individual or entity might inquire
legitimacy of law.
This essay will discuss if these views are currently accurate or inaccurate.
In the R (on the appliance of Evans) v Attorney
General  UKSC 21, the Attorney General, who is a minister,
exercised his power to veto a court ruling underneath s.53 (2) of the Freedom
of Information Act 2000.
Judicial review occurred and it sustained the veto,
then the problem proceeded to the Supreme Court (SP) which overrode the review.
It was expressed there were no grounds for the veto and that Section 53(2) was
contrary to EU law.
The significance of R v Attorney General is that the
judgment showed that it’s legal for a court to strike down a Minister’s
The thought-provoking part here, is the power used by the Attorney General, was
fashioned underneath an act of Parliament and the Supreme Court struck this
Since the Supreme Court overrode the Judicial review and said that the Minister
had no ground to exercise his power of veto,
it suggests that it is legitimate for a court to deny Parliament s will, this
will being Parliament permitting the use
of the veto.
It may be argued that the Diceyan Doctrine remains inaccurate because the
courts used their power to deny a Minister his power that was given by an act
and so the courts probed the validity of an act of parliament.
Furthermore, Jackson v Attorney General contained an
idea of judges acting in their official right.
This is portraying that court possessing the ability to strike down an Act of Parliament
in the event of an infringement of constitutional principles.
Thus, a body like a court will question the legitimacy of laws brought by Parliament.
Three law lords insisted that that courts have the capability to strike down
legislation in certain circumstances.
One example is Lord Steyn, he said “it is not unthinkable that circumstances
could arise where the courts may have to qualify a principle established on a
different hypothesis of constitutionalism. In exceptional circumstances
involving an attempt to abolish judicial review or the ordinary role of the courts”.
This is showing us that the courts do have an ability to question parliament
and the laws it makes revolving the Judiciary. If Parliament decides to
eradicate certain court powers such as judicial review through an act, the
courts have the capability strike down that act.
However, although it’s going to appear as if the court decisions are going
against the Diceyan doctrine, the next point is said to be guard the Diceyan
In the R (on application of miller) v Secretary of
State for Exiting the European Union, the issue here was that Government
attempted to utilise exclusive powers known as Prerogative powers to trigger
The question here was if these powers might be used to trigger article 50.
The Supreme Court recognised that there was a key guideline to do with the UK’s
constitution, this being that Parliament is sovereign and may modify or rescission
of any laws.
The European Communities Act 1972 which carried the UK into the EU
was introduced through an Act and consequently, the ECA 1972 cannot be supersede
using exclusive powers originating from the monarch. The
Supreme Court held that Parliament should only Trigger article 50 because the
European Communities Act (ECA) 1972 is an independent source of law impacting
and so parliament might solely select once to reject this source of Law. In
addition to this, the EU provided citizens with rights, and so solely Parliament
is certified to revoke these rights.
This upheld the Diceyan Doctrine that Parliament is supreme law creating body
and solely it will create and repeal laws.
However, let us reflect
on the situation of Parliament before the EU referendum, the Withdrawal Bill
and R v Secretary of State for Exiting
the European Union. As a result, the Diceyan Doctrine remained inaccurate
through the ECA 1972.
The ECA allowed the U.K to become a member of the European Union. The
ECA also resulted in EU law superseding United Kingdom’s law brought by Parliament
and so, it is prioritised over domestic law.
This implies that parliament is no longer, the supreme legislator as the EU
presently makes law that Parliament cannot supervene upon.
In R (Factortame Ltd) v Secretary of State for
Transport, the legitimacy of the Merchant Shipping Act (MSA) 1988 was
addressed by the European Court of Justice..
The MSA would protect the British fishing industry by stopping foreign national
exploiting British fish stocks by having British Owners only being entitled to share
of fishing quotas. This
issue was later brought to the House of Lords.
It was recognised that the supremacy principle of applying EU law over UK law,
and to disregard any national rules of principles such as sovereignty.
Here is a case of the prevention of a parliamentary act from having an impact,
which validates that parliament is not the preeminent law making body because
the MSA, an act of parliament was declared incompatible with EU law,
so the MSA ought to be negated. It indicates how a court, will question the
validity of an act introduced by Parliament.
However, one might
argue that Parliament consented to the present dominion and can merely repeal
the ECA 1972.
This would result in Parliament’s sovereignty not being lost and Dicey’s
account would subsequently be correct. This is the current scene in the UK. The
European Union (Withdrawal) Bill will negate ECA
and lead to the U.K’s exit from the EU. Once this Bill receives royal assent,
the U.K will no longer be subjugated to EU law and the European court of
Parliament will once more be the supreme law creating body and no establishment
will question the validity its laws.
In addition to this
Section 4 of the Human Rights Act, permits the upper courts to issue of a
declaration of incompatibility to act of Parliament in relevancy to human
This enables courts to think about that the terms of a statute, acts of public
authority that Parliament has passed or agreed with, and choose if it’s
incompatible with the UK’s commitments underneath the Human Rights Act 1998.
Thus, this means that the Diceyan Doctrine isn’t correct as it goes against the
concept that no body like a court will question the legitimacy of an act Parliament.
However, in terms of
the declaration of incompatibility, it merely establishes the act of Parliament
is contrary with the European Convention of Human Rights, it does not negate
the statute as Parliament then decides whether it needs to amend the act.
To illustrate this more, under Section 10 of the Human Rights Act, a Minister
of the Crown might modify primary legislation that is vital to withdraw the
Thus, it may be argued that the courts cannot strike down an Act, they alert
Parliament and as a result, can amend the incompatible act.
As indicated by the
Diceyan Doctrine, Parliament cannot be bound by its forerunners and it cannot
bind its future self.
This is often shown through the Doctrine of implicit Repeal.
This is when Act of Parliament conflicts with a former act, the later Act takes
Through this, we can say that no parliament is bound or binding. In, Vauxhall Estates LTD v Liverpool Corporation:
1 KB 733 the court said that
the Housing Act 1925 impliedly repealed the Acquisition of land act 1919. This
shows the sovereignty of Parliament, this being that no Parliament will be
bound a forerunner or bind a future Parliament.
In conclusion, the
Diceyan Doctrine has experienced encounters that goes against it, one major
encounter being the EU and how over that 50% of UK laws that have economic
impact come from the EU.
However, there has been a run of positive reception of the Diceyan Doctrine and
sovereignty in general, such as the doctrine of Implied Repeal. My final remark
is that when the withdrawal bill receives royal assent,
Dicey’s account of Parliamentary will be accurate in theory, but in practice, there
would still be limits such as the Judiciary. On this note, I say that
Parliament is sovereign and that the U.K adheres to the accounts of Dicey.
Jeffrey Goldsworth, The Sovereignty of Parliament: History and Philosophy
(first ed 1999)
Mark Elliot & Robert Thomas, Public law (3rd Edn, OUP, 2017)
Dicey, Law of the Constitution, (8th edn, Macmillian 1915)
(on the appliance of Evans) v Attorney General  UKSC 21
Teresa Lucaelli “The Constitutional
Aspect” in Evans v Attorney General
Alison. Young, ‘R (Evans) v Attorney General  UKSC 21 – the Anisminic of
the 21st Century?’ U.K. Const. L. Blog
Karren McCullagh, “A tangled web of access to information: reflections on
R (on the application of Evans) and another v Her Majesty’s Attorney
General”, (2015) EJoCLI
Tom Mullen (2007). “Reflections on Jackson v Attorney General: questioning
sovereignty”, Volume 21, Issue 1
(Jackson) v Attorney General  1 AC
(Jackson) v Attorney General  1 AC
(On the Application of Miller) v Secretary of State for Exiting the European
Union  UKSC 5
Alisdair Gillespie and Siobahn Weare, The English legal System, (6th Edn, OUP
Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others
(No. 5)  3 W.L.R. 1062
 1 A.C. 524
Shipping Act 1988 c.12
Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)
William James, Michael Holden, ‘Charming
Bastard’ David Davis to lead Brexit talks, Reuters 2017
Nick Barber International Journal of Constitutional Law, The afterlife of
Parliamentary sovereignty, Volume 9, Issue 1, 1 January 2011
 Vuxhall Estates LTD v Liverpool
Corporation: 1 KB 733
Miller,House of Commons Library, research paper 10/62, ‘How much legislation
comes from Europe’