Parliamentary active forces of judicial review to

Parliamentary
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, as a result,
the monarch’s power of royal prerogative is underneath parliament within the
late seventeenth and early eighteenth century.1
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.2

Dicey’s views of
parliamentary Sovereignty is that parliament is the final law-making establishment
and can sanction any law, the second being is that no parliament is to be bound
by a forerunner nor bind a future successor and, the remainder of Dicey’s
principles is that no individual or body might inquire or question the validity
and legitimacy of law.3
This essay can discuss if these views stay correct.

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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, exercised his power to veto a court ruling underneath s.53 (2) of the
Freedom of Information Act 2000.4
Judicial review occurred and it upheld the veto,5
then the problem proceeded to the Supreme Court (SP) that overrode the review.6It
was expressed there were no grounds for the veto and that Section 53(2) was
contrary to EU law.7

The significance of
the R v Attorney General is that this judgment provides is a concept to the
degree to that it’s lawful for a court active forces of judicial review to
strike down a Government Minister’s decision created underneath the powers
allowed by Parliament to overturn a tribunal’s judgment.8
Since the SP overrode the Judicial review and set that the Minister had no
ground to exercise his power of veto, it suggests that it is legitimate for a
court to deny Parliaments will, this will be Parliament permitting the use of
the veto. 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, and so the courts questioned the validity of an act of
parliament.

Furthermore, Jackson v
Attorney General contained thought from judges acting in their official
boundary, that courts might have the ability to strike down an Act of
Parliament in the event of a violation of constitutional principles.9
Thus, a body like a court will question the legitimacy of laws brought by
Parliament. In this case, 3 law lords urged that that courts had the ability to
strike down legislation.10
One example is Lord Steyn aforementioned “It (parliamentary supremacy) is a
construct of the common law. The judges created this principle. If that is so,
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”.11 This
means that the courts do have an ability to question parliament and the laws it
makes revolving the Judiciary as Lord Steyn discussed how. If Parliament was to
remove certain court powers such as judicial review through law, the courts
have strike down that law.12
However, though it’s going to appear as if the court decisions are going
against sovereignty and the Diceyan doctrine of thought, the case R (On the
appliance of Miller) v Secretary of State for Exiting the European Union 2017
UKSC 5 shows that the court’s call upheld the Diceyan Doctrine.

In the R 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 50.13 The
question here was if these powers could be used to trigger article 50. The
Supreme Court recognised that there was an important guideline of the UK’s
constitution, this being that Parliament is sovereign and might create an undo
laws.14
The European Communities Act 1972 which brought the UK into the EU was
introduced through an Act and so the government cannot supersede this using
exclusive powers given by the monarch.15
It was said that Parliament should only Trigger article 50 because the ECA 1972
is an independent source of law,16
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.17
This upheld the Diceyan Doctrine that Parliament is supreme law creating body
and solely it will create and undo laws.

However, we should
contemplate 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 European Communities Act
1972 (ECA). The ECA allowed the U.K to become a member of the European Union.18
It additionally gave way EU law superseding United Kingdom’s law brought by
Parliament and so, takes precedence over national law19.
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, that was
declared to prevent Spanish fishing owners from selling fish caught in the UK
in Spain.20
This issue was later in the ECJ, that MSA dishonoured the Treaty of Rome 1957
that created the European Economic Community.21
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 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 simply repeal
the ECA 1972.22
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 ECA23
and lead to the countries 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 justice. 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 Act, permits the higher courts to issue of a declaration of
incompatibility to act of Parliament in relevancy to human rights.24
This enables courts to think about that the terms of a statute, acts of public
authority that Parliament has passed, and choose if it’s incompatible with the
UK’s commitments underneath the Human Rights Act 1998.25 Thus,
this means that the Diceyan Doctrine isn’t correct as it goes against the
concept that nobody 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.26
To illustrate this more, underneath Section 10 of the HRA, a Minister of the
Crown might create such modification to primary legislation that is viewed as
vital to withdraw the incompatibility.27 Thus,
it may be argued that the courts cannot strike down an Act, they caution 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.28
This is often largely shown through the Doctrine of implicit Repeal. This is
when Act of Parliament conflicts with an earlier act, the later Act takes
precedence.29
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 1919.30
This shows the sovereignty of parliament, this being that no parliament will
bind a future parliament.

In conclusion,
Parliamentary sovereignty seems to own come back full circle since Dicey first
defined it. The Diceyan Doctrine had undergone challenges like the EU. However,
there has additionally been a series of acceptance of the Diceyan Doctrine,
like the Miller case. Yet, to follow the three parts that Diceyan Doctrine has
held up. 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 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 Mark
Elliot & Robert Thomas, Public law (3rd Edn, OUP, 2017)

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

3 Ibid
n1

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

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

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

7 Public
Law for Everyone: Professor Mark Elliott Blog

8 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)

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

10 The
EU Bill and Parliamentary Sovereignty – European Scrutiny Committee: Divergent
opinion on the scope of Parliamentary sovereignty

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

12 Ibid

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

14 ibid

15 Ibid
n13

16 ibid

17 Ibid
n11

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

19 Ibid

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

21 R
(Factortame Ltd) v Secretary of State for Transport 2003 Q.B. 381 2002 3
W.L.R. 1104

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

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

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

25 ibid

26 Humberto
Ávila, Certainty in Law, 1st ed,

27 Ibid
18

28 Ibid
n1

29 Ibid
n1

30 Vauxhall Estates LTD v Liverpool
Corporation:1932 1 KB 733