By was then quashed under the reason of

 

By parliamentary sovereignty, it simply means that
a doctrine which states Parliament is the supreme body among the constitution. The
most prevalent definition of parliamentary sovereignty comes from A.V. Dicey
who explain clearly what it meant in The Law of the Constitution. He stated
that,” The principle of parliamentary sovereignty means neither more nor less
than this, namely, that Parliament has, under the English constitution, the
right to make any law whatever; and, further, that no person or body is
recognised by the law of England having a right to override or set aside the
legislation of parliament.” The three key aspects from the doctrine are (1) Parliament
can make or unmake law (2) Parliament cannot bind its successors (3) No one
question Parliament’s laws. However, the traditional account of Dicey’s view on
parliamentary sovereignty is only partially accurate applying in the UK constitutional
arrangement, especially in court jurisdiction. Courts who valued pragmatism
than principled, makes decision varying from cases, not necessarily consistent
with Dicey’s definition. In the following, by demonstrating cases, it will be elucidated
which part of Dicey’s theory remains accurate and which does not.

 

In R(Evans) v Attorney General, the supreme court quashed Attorney’s
certification under s53(2) even though is passed by the Parliament. The case
contradicted with Dicey principle which is “override or set aside the legislation
of parliament.” Reporter (Evans) requested to release the letters between Prince
Charles and the government to the public under Freedom of Information Act 2000.

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During the trial in Upper Tribunal, it ruled that the letter should be
released. But then the attorney on behalf of the government disagreed and
blocked the request via certification under s53(2). The case was then appealed
to the supreme court. The certification was then quashed under the reason of “Parliament
could not have been taken to have intended to legislate in a way which
permitted the executive to override a judicial decision.” The case has been an
open debate for whether the judges crossed the line of parliamentary
sovereignty since the certificate is an act of Parliament. Some worried that “Neuberger’s
treatment of section 53 may have crossed the fine line that distinguishes bold
statutory construction from judicial intransigence in the face of a
constitutionally offensive statutory provision.” But the other merely think it
is a result of interpretation of law since parliamentary sovereignty does not
require the absolute following of every literal meaning of words used by
Parliament. This case indicates that the court is attempted to disregard the
statutory intention of Parliament. The evolution of how courts interpret the
act of parliament seems to violate the Dicey’s definition more or less. To this
extent, Dicey’s traditional account of Parliament’s sovereignty does not remain
accurate since the court denied the certificate which is passed by the Parliament.

However, the interpretation that possibly crossed the line of override or set
aside is needed under certain circumstances. As TRS Allan said, “Parliamentary
sovereignty is arguably as elastic as is necessary to ensure that obedience to
the legislative will is morally defensible, having regard to the consequences
of alternative constructions.” Dicey’s traditional account for parliamentary
sovereignty is inapplicable when courts are trying to exercise its judicial
power over the words and intention of Parliament.  

 

Be that as it may, there are still plenty of cases
which could prove the Dicey’s definition is still in place after all. In R (Miller) v Secretary of State for Exiting
the European Union 2017 UKSC 5 illustrates a great extent that the court
would do nothing but to honour parliamentary sovereignty. This case concerned whether
the prerogative power holds by the government has the right to trigger the
withdrawal process of Brexit. Mr Eadie QC for the government argued that the
prerogative power can alter domestic law, which contradicted the parliamentary
sovereignty devastatingly. There is also argument about the referendum is about
‘people’s will”, which is direct democracy, government thus could act without
parliament consent. The Supreme Court ruled that the new act of parliament is
needed to trigger Article 50 under Lisbon Treaty. Under European Communities
Act 1972, it was parliament who took UK into EU and it should be the same when
taking UK out of EU. The court also pointed out the referendum 2017 is only
political significant but not legal, thus the government is not able to trigger
Article 50 with prerogative power. Besides 1972 Act pointed out that “EU law
has a statute, getting rid of it is not a matter of foreign relations, meaning
that its removal cannot be accomplished via foreign relation prerogative. The judgement
in the Miller case has been reassured that only parliament has the power to
make any change in constitutional arrangement. It proves the definition of
Dicey which no one should override or set aside the act of parliament. The
court denied government to use its executive power to intervene the legislation
that parliament has previously created or what the common law has previously acknowledged.

“In thus delivering a clear statement of constitutional orthodoxy and a clear
re-assertion of parliamentary sovereignty as the fundamental principle of the
constitution, Miller has swept aside recent uncertainties, equivocations and
qualifications.” By this case, it defences what Dicey on his pedestal which no
one could set aside or override the act of parliament, not even the government.

It also emphasises the importance of parliament sovereignty in dealing with UK
constitution and the court would do nothing but to protect parliament’s
position among three organs of state.

 

The supremacy of EU law is also another
controversial topic in Miller case when discussing Dicey’s parliamentary
sovereignty. Some people suggested the supremacy of EU law does have some
degree of disagreement with Dicey’s theory. Since European Communities Act 1972 clearly stated that EU law overrides
UK law, when there is conflict between EU law and domestic law, the latter must
yield to the former. Under this circumstance, the membership with EU indeed
weaken the parliamentary sovereignty in UK. However, I personally do not agree
with such statement. Since the parliament has agreed on terms in 1972 Act, it
authorises EU law the power to override domestic law. In such case, there would
be no conflict between the supremacy of EU law and Dicey’s traditional account
of parliamentary sovereignty.

 

There are still abundant of cases and statutes that
support Dicey’s definition. His Majesty’s
Declaration of Abdication Act 1936 and Parliament
Act 1911 are statutes which stand for Parliament can make or unmake law. Burma
Oil company v Lord Advocate 1965 indicates an act of Parliament may overturn
any previous judgement by the courts. British
Railways Board v Pickin 1974 AC 765 (HL) is concerning about the power of
the court to challenge Parliament. The court defenced the parliamentary
sovereignty by ruling “The function of the court is to construe and apply the
enactments of Parliament. The court has no concern with the manner in which
Parliament or its officers …. Perform these functions”. Under the traditional
model of parliamentary sovereignty, not even the court can question Parliament’s
law and the case stand for the model. For the Vauxhall Estates Ltd v Liverpool corporation 1932 1 KB 733 is
concerning the doctrine of implied repeal. It shows that the Parliament cannot
bind its successor. A later Act should always apply according to Dicey.

 

It has been seen that Dicey’s traditional account
of Parliamentary sovereignty is somehow remains partially accurate on modern UK
constitutional arrangement. Although there are lots of cases and statute show
that A.V. Dicey’s definition is still intact and absolute in terms of
parliamentary sovereignty, there are still exceptions, for instance, R(Evans) v Attorney General. Judicially
speaking, the court would only consider what they agree as the most appropriate
balance of situation, even it is inconsistent with the political sovereignty. Thus,
there is no exact pattern of when parliamentary sovereignty remains accurate
and when is not. With the Miller and Evans case, alongside with other statutes,
Dicey’s traditional account for parliamentary sovereignty is not absolutely
accurate but partially.