Described by LordBingham as ‘the bedrock of the British constitution’1and 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 traditionalaccount of parliamentary sovereignty consists of three main factors: that Actsof Parliament cannot be declared illegal; that Parliament can make or unmakeany laws, and thus that Parliament cannot bind its successors or be bound byits predecessors. Indeed, in his seminal work, Introduction to the Study of the Law of theConstitution,3Dicey described parliamentary sovereignty as such:The principle of parliamentary sovereignty means neither more nor lessthan this, namely, that Parliament thus defined has, under the Englishconstitution, the right to make or unmake any law whatever; and, further, thatno person or body is recognised by the law of England as having a right tooverride or set aside the legislation of Parliament.4Dicey’s theories have come under reviewrecently, with scholars such as N.W. Barber, who posits that parliamentarysovereignty is a relic of the past,5and Sir William Wade, who argued that there had been a judicial revolutionwhich had destroyed parliamentary sovereignty,6questioning whether his first and most important feature of his doctrine stillapplies.
The first of the fourfeatures of Diceyan orthodoxy parliamentary sovereignty is that Acts ofParliament cannot be declared illegal. This has been subject to scholarlyscrutiny recently, because of the current legal relationship between the EU andthe UK. After the UK joined the EEC, the primacy of European law wasacknowledged, as per the European Communities Act 1972, which stated:All such rights, powers, liabilities, obligations and restrictions fromtime to time created or arising by or under the Treaties… are without furtherenactment to be given legal effect or used in the United Kingdom7Lawmakers avoidedchallenging this for many years until the case of Factortame8,when it became unavoidable. Factortameinvolved Spanish shipowners using a loophole in the Merchant Shipping Act 1894to fish in UK waters, and sell in Spain. In response to this, in 1988, theSecretary of State for Transport modified the Act to close that loophole andprevent the shipowners fishing in UK waters. The new Act provided that vesselsmay only be registered as British if they were three-quarters owned by Britishcompanies and three-quarters of the company directors were British citizens.The Spanish shipowners claimed this was discriminatory based on nationality andsought an injunction against the Crown to prevent the modified Act from cominginto force.
The House of Lords referred the matter to the European Court ofJustice (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 ShippingAct 1988 was not compatible with current legislation regarding shipping.9The claimants won, and Factortameconfirmed Westminster’s subordination to EU law. As Dicey himself said, the’subordination of a law-making body’ is identified by three signs, one of whichis ‘the existence of… persons, judicial or otherwise, having authority topronounce upon the validity or constitutionality of laws passed by suchlaw-making body’.10While it may be argued that Parliament remains sovereign because it voluntarilysurrendered its sovereignty, this is not a fair assessment of Dicey’straditional account of parliamentary sovereignty. Dicey is clear; there cannotbe a body that can question the validity of the laws of Parliament. IfParliament were indeed sovereign as per Diceyan orthodoxy, then the ECJ shouldnot have been able to question the validity of the Merchant Shipping Act 1988. The case of R (On the Application of Evans) v AttorneyGeneral11 was a landmark case that set aside a statutoryprovision in the Freedom of Information Act 2000 that allowed a ‘government ministerto override a judicial decision of which he disapproves’12.
Evans, a Guardian journalist, had requested disclosure of correspondencebetween Prince Charles and government ministers under the FOIA 2000. Allanasserts that ‘there was arguably a strong public interest in the disclosure ofthe nature and extent of Prince Charles’ influence on government decisionmaking’13.The test for whether the information should be released was if ‘in all thecircumstances of the case, the public interest in maintaining the exemptionoutweighs the public interest in disclosing the information’14.As per this rule, the Upper Tribunal ruled in favour of disclosure, however theAttorney General invoked section 53 of the Act, allowing for an ‘accountableperson’ 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, theDivisional 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 favourthat the Attorney General was unable to issue the certificate. In his dissentingjudgement, Lord However, this may havechanged recently.
Dicey’s own theories state that no person or body could questionthe legitimacy of Parliament. This was explored in the case of R (On the Application of Miller) v Secretaryof Exiting the European Union, which affirmed the fact that the executivewas subordinate to Parliament. Miller foundthat the Secretary of State for Exiting the European Union was unable to usethe Royal prerogative to repeal the European Communities Act 1972. This is inkeeping with Diceyan orthodoxy, as, because of the existence of the separationof 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 BritishParliament’15and Miller found that this assertionwas true. Despite Lord Reed’s ‘powerful’ judgement, that leaving the EuropeanUnion was indeed under the Secretary of State’s jurisdiction, the EuropeanCommunities Act 1972 neither ‘contemplates nor accommodates the abrogation ofEU law’ on withdrawal ‘by prerogative act without prior Parliamentaryauthorisation’16.Indeed, as stated in the majority judgement:’There is a vital difference between changes in domestic law resultingfrom variations in the content of EU law arising from new EU legislation andchanges in domestic law resulting from withdrawal by the United Kingdom fromthe European Union.
‘ 17While there can be no doubt that it iswithin the Secretary of State’s jurisdiction to enter and withdraw frominternational treaties under the Royal prerogative, there can also be no doubtthat, as per the European Communities Act 1972, that EU Treaties are notinternational 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 Actthat would allow for the Secretary of State to repeal it and leave the EuropeanUnion without parliamentary approval.The second of Dicey’sfeatures of parliamentary sovereignty is that Parliament may make or unmake anylaw it chooses. This was explored in the case of Blackburn v Attorney General19, where the issue for the courts waswhether Parliament had the right to sign the Maastricht Treaty as signing itmeant that the sovereignty of Parliament would have been curbed.
In summary, most of the features of Dicey’straditional account of parliamentary sovereignty remain accurate. While subjectto practical, political and conventional limitations, Parliament can, intheory, make and unmake any laws it chooses. However, there is doubt as towhether Acts of Parliament cannot be declared illegal. Factortame leads us to believe that there currently exists a bodywhich 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.12005 UKHL 56 92T.R.S. Allan, ‘Law, democracy, andconstitutionalism: Reflections on Evans v Attorney General'(2016) 75(1) Cambridge Law Journal 393 AVDicey, Introduction to the Study of theLaw of the Constitution (8th edn, Macmillan 1915)4Dicey, 3-45 N.
W. Barber; The afterlife of Parliamentarysovereignty (International Journal of Constitutional Law, Volume 9, Issue1, 2011) Pages 144–154,6 WilliamWade, Sovereignty – Revolution orEvolution? (112 LAW Q. REV., Sweet & Maxwell, 568-575 1996)7European Communities Act 1972, s2(1)8 1991C-221/899Ibid 18 10 Dicey,40112015 UKSC 2112Allan, 113Ibid, 514Freedom of Information Act 2000, s 215Dicey, 39162017 UKSC 5 7717Ibid 7818Ibid 86191971 2 All ER 1380