Dicey

“This Cover Sheet must be used for all Coursework submitted in Lancaster University Law School – failure to use this Cover Sheet may result in the work being treated as a non-submission. Please start the text of your Coursework on Page 2 of this document” Parliamentarysovereignty stands as a significant notion in U.

K’s constitution. It originatedat the time of William-III and Mary-II who came to a position of royaltythrough sacrificing their own power and giving it to parliament.[1]Hence, the monarch’s royal prerogative is directly below parliament within thelate seventeenth and early eighteenth century.[2]This condition may be found within the Bill of Rights 1688, that regulationsshould be created and/or revoked by parliament.[3]Dicey’s views of parliamentarySovereignty is that Parliament is the final legislative body and has thecapacity to sanction any law.[4]The second being that parliament is not to be bound by a forerunner nor bind anupcoming successor.[5]The last of Dicey’s principles is that no individual or entity might inquirelegitimacy 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 AttorneyGeneral [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 Freedomof Information Act 2000.[8]Judicial review occurred and it sustained the veto,[9]then the problem proceeded to the Supreme Court (SP) which overrode the review.[10]It was expressed there were no grounds for the veto and that Section 53(2) wascontrary to EU law.[11] The significance of R v Attorney General is that thejudgment showed that it’s legal for a court to strike down a Minister’sdecision.[12]The thought-provoking part here, is the power used by the Attorney General, wasfashioned underneath an act of Parliament and the Supreme Court struck thispower down.[13]Since the Supreme Court overrode the Judicial review and said that the Ministerhad no ground to exercise his power of veto,[14]it suggests that it is legitimate for a court to deny Parliament s will, thiswill being Parliament  permitting the useof the veto.

[15]It may be argued that the Diceyan Doctrine remains inaccurate because thecourts used their power to deny a Minister his power that was given by an actof parliament,[16]and so the courts probed the validity of an act of parliament.Furthermore, Jackson v Attorney General contained anidea of judges acting in their official right[17].This is portraying that court possessing the ability to strike down an Act of Parliamentin the event of an infringement of constitutional principles.[18]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 downlegislation in certain circumstances.[19]One example is Lord Steyn, he said “it is not unthinkable that circumstancescould arise where the courts may have to qualify a principle established on adifferent hypothesis of constitutionalism. In exceptional circumstancesinvolving an attempt to abolish judicial review or the ordinary role of thecourts”.

[20]This is showing us that the courts do have an ability to question parliamentand the laws it makes revolving the Judiciary. If Parliament decides to pass anact that eradicate judicial review, the courts have the capability nullify thatact.[21] Althoughit’s going to appear as if the court decisions are going against the Diceyandoctrine, the next point is said to be guard the Diceyan Doctrine.In the R (on application of miller) v Secretary ofState for Exiting the European Union, the issue here was that Governmentattempted to utilise exclusive powers known as Prerogative powers to triggerarticle 50.[22]The question here was if these powers might be used to trigger article 50.[23]The Supreme Court recognised that there was a key guideline to do with the UK’sconstitution, this being that Parliament is sovereign and may modify or rescissionof any laws.[24]The European Communities Act 1972 which carried the UK into the EU[25]was introduced through an Act and consequently, the ECA 1972 cannot be supersedeusing exclusive powers originating from the monarch.

[26] TheSupreme Court held that Parliament should only Trigger article 50 because theEuropean Communities Act (ECA) 1972 is an independent source of law impactingthe U.K[27]and so parliament might solely select once to reject this source of Law. Inaddition to this, the EU provided citizens with rights, and so solely Parliamentis certified to revoke these rights.

[28]This upheld the Diceyan Doctrine that Parliament is supreme law creating bodyand solely it will create and repeal laws.However, let us reflecton the situation of Parliament before the EU referendum, the Withdrawal Billand R v Secretary of State for Exitingthe European Union. As a result, the Diceyan Doctrine remained inaccuratethrough the ECA 1972.[29] TheECA allowed the U.K to become a member of the European Union.

[30] TheECA also resulted in EU law superseding United Kingdom’s law brought by Parliamentand so, it is prioritised over domestic law[31].This implies that parliament is no longer, the supreme legislator as the EUpresently makes law that Parliament cannot supervene upon.In R (Factortame Ltd) v Secretary of State forTransport, the legitimacy of the Merchant Shipping Act (MSA) 1988 wasaddressed by the European Court of Justice.[32].The MSA would protect the British fishing industry by stopping foreign nationalexploiting British fish stocks by having British Owners only being entitled toshare of fishing quotas[33].  Thisissue was later brought to the House of Lords.[34]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.

[35]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 becausethe MSA, an act of parliament was declared incompatible with EU law[36],so the MSA ought to be negated. It indicates how a court, will question thevalidity of an act introduced by Parliament. However, one mightargue that Parliament consented to the present dominion and can merely repealthe ECA 1972.[37]This would result in Parliament’s sovereignty not being lost and Dicey’saccount would subsequently be correct.

This is the current scene in the UK. TheEuropean Union (Withdrawal) Bill will negate ECA[38]and lead to the U.K’s exit from the EU. Once this Bill receives royal assent,[39]the U.K will no longer be subjugated to EU law and the European court ofjustice.

[40]Parliament will once more be the supreme law creating body and no establishmentwill question the validity its laws. In addition to thisSection 4 of the Human Rights Act, permits the upper courts to issue of adeclaration of incompatibility to act of Parliament in relevancy to humanrights.[41]This enables courts to think about that the terms of a statute, acts of publicauthority that Parliament has passed or agreed with, and choose if it’sincompatible with the UK’s commitments underneath the Human Rights Act 1998.[42]Thus, this means that the Diceyan Doctrine isn’t correct as it goes against theconcept that no body like a court will question the legitimacy of an act Parliament.However, in terms ofthe declaration of incompatibility, it merely establishes the act of Parliamentis contrary with the European Convention of Human Rights, it does not negatethe statute as Parliament then decides whether it needs to amend the act.[43]To illustrate this more, under Section 10 of the Human Rights Act, a Ministerof the Crown might modify primary legislation that is vital to withdraw theincompatibility.[44]Thus, it may be argued that the courts cannot strike down an Act, they alertParliament and as a result, can amend the incompatible act.As indicated by theDiceyan Doctrine, Parliament cannot be bound by its forerunners and it cannotbind its future self.

[45]This is often shown through the Doctrine of implicit Repeal.[46]This is when Act of Parliament conflicts with a former act, the later Act takesprecedence.[47]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 said thatthe Housing Act 1925 impliedly repealed the Acquisition of land act 1919.[48] Thisshows the sovereignty of Parliament, this being that no Parliament will bebound a forerunner or bind a future Parliament. In conclusion, theDiceyan Doctrine has experienced encounters that goes against it, one majorencounter being the EU and how over that 50% of UK laws that have economicimpact come from the EU.[49]However, there has been a run of positive reception of the Diceyan Doctrine andsovereignty in general, such as the doctrine of Implied Repeal. My final remarkis that when the withdrawal bill receives royal assent,[50]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 thatParliament 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] AVDicey, Law of the Constitution, (8th edn, Macmillian 1915)[5]ibid[6]Ibid [7]Ibid n2[8] R(on the appliance of Evans) v Attorney General [2015] UKSC 21[9]Teresa Lucaelli  “The ConstitutionalAspect” in Evans v Attorney General[10]Alison. Young, ‘R (Evans) v Attorney General [2015] UKSC 21 – the Anisminic ofthe 21st Century?’ U.

K. Const. L. Blog [11]Ibidn10[12]Ibid n9[13]Karren McCullagh, “A tangled web of access to information: reflections onR (on the application of Evans) and another v Her Majesty’s AttorneyGeneral”, (2015) EJoCLI < http://webjcli.org/article/view/432/558>[14]Ibid n8[15]Ibid n2[16] Ibidn2[17]Tom Mullen (2007).

“Reflections on Jackson v Attorney General: questioningsovereignty”, 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 EuropeanUnion [2017] UKSC 5[23]Ibid [24]Ibid [25]Alisdair Gillespie and Siobahn Weare, The English legal System, (6th Edn, OUP2015)[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] MerchantShipping Act 1988 c.12[34]Ibid [35]Ibid n25 [36]Ibid n2[37]Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary debates (CUP 2015)[38]William James, Michael Holden,  ‘CharmingBastard’ David Davis to lead Brexit talks, Reuters 2017[39]Ibid n2  [40]Ibid n2[41]Nick Barber International Journal of Constitutional Law, The afterlife ofParliamentary sovereignty, Volume 9, Issue 1, 1 January 2011[42]ibid[43]Ibidn25[44]Ibid[45]Ibid n2[46]Ibid n2[47]Ibid n2[48] Vuxhall Estates LTD v LiverpoolCorporation:[1932] 1 KB 733[49] VaughneMiller,House of Commons Library, research paper 10/62, ‘How much legislationcomes from Europe’[50]Ibid n2