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arliamentary Supreme Court overrode the Judicial review and

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arliamentary
sovereignty is a very important concept in United Kingdom constitution. It came
about 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.1 As
a result, the monarch’s power of royal prerogative is underneath parliament
within the late seventeenth and early eighteenth century.2
This condition may be found within the Bill of Rights 1688, that expressed laws
should be created or revoked by Parliament and not by the Monarch alone.3

Dicey’s views of
parliamentary Sovereignty is that parliament is the final law-making establishment
and can sanction any law.4 The
second being is that no parliament is to be bound by a forerunner nor bind a
future successor.5
The last of Dicey’s principles is that no individual or body might inquire or
question the validity and legitimacy of law.6
This essay will discuss if these views are currently accurate or inaccurate.

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In the R (on the appliance of Evans) v Attorney
General 2015 UKSC 21, the Attorney General, who is a minister,7
exercised his power to veto a court ruling underneath s.53 (2) of the Freedom
of Information Act 2000.8
Judicial review occurred and it upheld the veto,9
then the problem proceeded to the Supreme Court (SP) that overrode the review.10 It
was expressed there were no grounds for the veto and that Section 53(2) was
contrary to EU law.11

The significance of
the R v Attorney General is that the
judgment showed that it’s lawful for a higher court who possess powers of judicial
review to strike down a Government Minister’s decision.12 The
interesting part here, is the power used by the Attorney General that was struck
down by the court, was created underneath an act of Parliament.13
Since the Supreme Court overrode the Judicial review and said that the Minister
had no ground to exercise his power of veto,14
it suggests that it is legitimate for a court to deny Parliaments will, this
will being Parliament permitting the use of the veto.15
It may be argued that the Diceyan Doctrine isn’t correct because the courts
used their power to deny a Minister his power that was expressly given by an
act of parliament,16
and so the courts questioned the validity of an act of parliament.

Furthermore, Jackson v Attorney General contained an
idea of judges acting in their official boundary17. What
this means is that the courts might have the ability to strike down an Act of
Parliament in the event of a violation of constitutional principles.18
Thus, a body like a court will question the legitimacy of laws brought by
Parliament. In this case, three law lords urged that that courts had the
ability to strike down legislation.19 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”.20
This means that the courts do have an ability to question parliament and the
laws it makes revolving the Judiciary. If Parliament was to remove certain
court powers such as judicial review through an act, the courts have the ability
strike down that act.21
However, although it’s going to appear as if the court decisions are going
against the Diceyan doctrine, the following is said to be protection to Dicey’s
Doctrine.

In the R (on application of miller) v Secretary of
State for Exiting the European Union, the problem was that the government
utilising exclusive powers known as Prerogative powers to trigger article 50.22 The
question here was if these powers could be used to trigger article 50.23
The Supreme Court recognised that there was an important guideline of the UK’s
constitution, this being that Parliament is sovereign and might amend or repeal
laws.24
The European Communities Act 1972 which brought the UK into the EU25
was introduced through an Act and so the government cannot supersede this using
exclusive powers given by the monarch.26
It was said that Parliament should only Trigger article 50 because the European
Communities Act (ECA) 1972 is an independent source of law,27
then parliament might solely select once to reject this source. Additionally,
the EU provided citizens with rights, and so solely Parliament is authorised to
revoke this.28
This upheld the Diceyan Doctrine that Parliament is supreme law creating body
and solely it will create and undo laws.

However, we should consider
the position of parliament before the EU referendum and R v Secretary of State for Exiting the European Union. Throughout
this situation, the Diceyan Doctrine remained inaccurate through the ECA 1972.29
The ECA allowed the U.K to become a member of the European Union.30
It additionally gave way EU law superseding United Kingdom’s law brought by
Parliament and so, takes precedence over national law31.
This implies that parliament is not any longer, the supreme law-making body
because the EU currently makes the law that Parliament cannot supervene upon it.

In R (Factortame Ltd) v Secretary of State for
Transport, the European Court of Justice (ECJ) addressed the legitimacy of
the Merchant Shipping Act (MSA) 1988.32.
The MSA would protect the British Fishing industry by preventing foreign
national exploiting British fish stocks33. This was considered discriminatory.34 This
issue was later brought to the House of Lords.35 It
was that the supremacy principle of applying EU law over UK law, and to ignore
any national rules of principles such as sovereignty.36
Here is a case of the prevention of parliamentary act from having an effect,
which demonstrates that parliament isn’t the preeminent law creating body
because the MSA, an act of parliament was declared incompatible with EU law37,
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 simply repeal
the ECA 1972.38
This would mean that Parliament’s sovereignty isn’t lost and Dicey’s account
would subsequently be correct. This is currently happening, the European Union
(Withdrawal) Bill will negate ECA39
and lead to the U.K’s exit from the EU. Once this Bill receives royal assent,40
the U.K will no longer be subjugated to EU law and the European court of
justice.41
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 higher courts to issue of a
declaration of incompatibility to act of Parliament in relevancy to human
rights.42
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 1998.43 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 validity of an act
Parliament.

However, in terms of
the declaration of incompatibility, it merely demonstrates the act of
Parliament is contrary with the European Convention of Human Rights, it doesn’t
negate the statute as Parliament then chooses to decide if it needs to amend
the act.44
To illustrate this more, underneath Section 10 of the Human Rights Act, a
Minister of the Crown might create such modification to primary legislation
that is viewed as vital to withdraw the incompatibility.45 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 is not bound by its predecessors or bind its
successors.46
This is often largely shown through the Doctrine of implicit Repeal.47
This is when Act of Parliament conflicts with an earlier act, the later Act
takes precedence.48
Through this, we can say that no parliament is bound or binding. In, Vauxhall Estates LTD v Liverpool Corporation:1932
1 KB 733 the court command
that the Housing Act 1925 impliedly repealed the Acquisition of land act 1919.49
This shows the sovereignty of parliament, this being that no parliament will be
bound a forerunner or bind a future parliament.

In conclusion,
Parliamentary sovereignty seems to come back in a full circle since Dicey first
defined it.50
The Diceyan Doctrine had undergone challenges, one major challenge being the EU
and how over that 50% of UK laws that have economic impact come from the EU.51 However,
there has additionally been a series of acceptance of the Diceyan Doctrine, such
as the doctrine of implied repeal. My final remark is that when the withdrawal
bill receives royal assent,52
Dicey’s account of Parliamentary will be accurate in theory, but in practice,
there would still be limited such as the Judiciary. On this note, I say that
Parliament is sovereign and that the U.K adheres to the accounts of Dicey.

1 Jeffrey
Goldsworth, The Sovereignty of Parliament: History and Philosophy (first ed
1999)

2 Mark
Elliot & Robert Thomas, Public law (3rd Edn, OUP, 2017)

3 Ibid
n2

4 Ibid
n2

5 Ibid
n2

6 Ibid
n2

7 Ibid
n2

8 R
(on the appliance of Evans) v Attorney General 2015 UKSC 21

9 Teresa
Lucaelli  “The Constitutional
Aspect” in Evans v Attorney General

10 Alison.
Young, ‘R (Evans) v Attorney General 2015 UKSC 21 – the Anisminic of the 21st
Century?’ U.K. Const. L. Blog (31st Mar 2015)

11Ibid
n10

12 Ibid
n9

13 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)

14 Ibid
n8

15 Ibid
n2

16 Ibid
n2

17 Tom
Mullen (2007). “Reflections on Jackson v Attorney General: questioning
sovereignty”, Volume 21, Issue 1

18 Ibid
n2

19 R
(Jackson) v Attorney General  2006 1 AC

20 R
(Jackson) v Attorney General  2006 1 AC
(262), (102)

21 Ibid

22 R
(On the Application of Miller) v Secretary of State for Exiting the European
Union 2017 UKSC 5

23 Ibid

24 Ibid

25 Alisdair
Gillespie and Siobahn Weare, The English legal System, (6th Edn, OUP 2015)

26 Ibid
n22

27 Ibid
n22

28 Ibid
n22

29 Ibid
n2

30 Ibid
n25

31 Ibid
n25

32 Regina
v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 5)
1999 3 W.L.R. 1062

2000 1 A.C. 524

33 Ibid

34ibid

35 Ibid

36 Ibid
n25

37 Ibid
n2

38 Jeffrey
Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)

39 William
James, Michael Holden,  ‘Charming
Bastard’ David Davis to lead Brexit talks, Reuters 2017

40 Ibid
n2  

41 Ibid
n2

42 Nick
Barber International Journal of Constitutional Law, The afterlife of
Parliamentary sovereignty, Volume 9, Issue 1, 1 January 2011

43 ibid

44Ibid
n25

45 Ibid

46 Ibid
n2

47 Ibid
n2

48 Ibid
n2

49 Vuxhall Estates LTD v Liverpool
Corporation:1932 1 KB 733

50 Ibid
n2

51 House
of Commons Library, research paper 10/62, ‘How much legislation comes from Europe’

52 Ibid
n2

x

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