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Essay: Sovereignty of Parliament / Dicey / Jackson [2005] UKHL 56

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  • Sovereignty of Parliament / Dicey / Jackson [2005] UKHL 56
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a. Does Jackson [2005] UKHL 56 prove that Dicey’s definition of Parliamentary sovereignty is no longer accurate?
b. Has devolution limited the sovereignty of Parliament?

WORD COUNT [1,600]

Parliamentary sovereignty is the most important principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change . This coincides with Dicey’s definition of Parliamentary sovereignty, but various challenges to the orthodox view have developed. This includes the Parliament’s power to legislate which is inhibited by the Treaty of Union, membership of the EU, as well as by fundamental principles embedded in common law . However, it is the judgment in Jackson that unprecedently signified the courts’ authority to scrutinize or revoke an Act of Parliament. This case explicitly highlighted limitations to Parliamentary sovereignty, ultimately contradicting Dicey’s definition.

The Jackson case was of vital constitutional significance. The House of Lords judges were asked to determine if the Hunting Act 2004 was a lawful Act of Parliament. It had been made an offence under the Act to hunt wild mammals with dogs except within limited conditions . The initial issue of this case is the factor of justiciability, and whether the courts had the authority to determine whether an Act of Parliament was valid. According to Dicey’s definition, Parliament has “the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. Therefore, the fact that the courts had to question an Act of Parliament is a direct challenge to this theory and implies that it might not be accurate in a modern United Kingdom. Lord Hope, a leading judge on the case, stated” The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty” , further stressing that Parliamentary sovereignty is limited, and the courts play a part in determining the extent to which Parliament is legislatively sovereign. This case involved preliminary issues of standing and jurisdiction while considering the political background that affected the House of Commons decision. However, the significance of this case is apparent in the questions that arose about the constitutional theory of the extensive dicta in the case on the principle of the sovereignty of Parliament , that contrasted Diceyan views and highlighted if orthodox perspectives on Parliamentary sovereignty are getting replaced in the future due to the legal constraints on the Parliament’s legislative power. On this point, the case may be an important argument in the conflict between political and judicial constitutionalism.

The impact of the Jackson case on the development of the UK constitution is evident in its exposure of Parliament’s limited legislative sovereignty. Firstly, the fact that the courts were willing to review the validity of an Act of Parliament, indicates the desire to expand the court’s jurisdiction in areas otherwise considered out of their powers. Generally, the courts avoid matters that are deemed political, so it seemed that the courts were exercising beyond their jurisdiction during this case, hence creating controversy on how sovereign is Parliament. Secondly, the fact that three of the most senior judges made comments regarding the sovereignty of Parliament is profoundly critical, as they challenged all principles of the Diceyan theory. Whilst they did not entirely agree with one another, they concurred “in suggesting that the rule of law may be a substantive constraint on legislative competence” . Indicating that whilst Parliament may be sovereign the rule of law should be applied as a constraint, further emphasizing that Dicey’s definition is no longer accurate and that recently developed theories such as the Dworkian or Positivist views are more applicable.

It could be argued that although the Jackson disclosed questions about Parliamentary sovereignty, it was only a matter of statutory interpretation of the 1949 Act. The Attorney General recognized this as he took no point on justiciability, and he affirmed that there was no absolute rule that prevented the courts from questioning the validity of a statute. He claimed that “the courts had jurisdiction because the issue was one of statutory interpretation”, therefore the courts did not exceed their powers to interpret the law and apply it to the facts of the case. Moreover, the Appellants were challenging that the 1949 Act was not a statute, thus justifying the obligation of the courts to assess the validity of the 1949 Act before giving a judgment on the case. The case could be viewed as an example of the courts extending their jurisdiction into political matters, but the relaxed approach to standing, and the acceptance that the issues were justiciable, might be thought to confirm the consciousness of itself as a constitutional court . For this reason, it is apparent that this case acted as a catalyst to show that the courts can tackle cases that could be considered ‘too political’, so long as they can be justified as legal arguments.

Dicey’s theory states, “That no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” This concept of absolute Parliament sovereignty is proven to be impractical in a modern legal system. This view is shared by the majority of judges and the fear that sovereignty could be misused to ‘threaten liberties’ or cause an imbalance in the constitution. Additionally, judges that are orthodox in their views, believe that government and Parliament to exercise some restraint in the exercise of sovereign power , proving that Dicey’s definition cannot be implemented in a modern system as it clearly would not preserve the balance of the political constitution.

Whilst discussing Parliament sovereignty, another important concept that has recently been applied throughout the UK is devolution. Devolution is the delegation of powers from a central government to a regional administration within its jurisdiction, consequently forming an asymmetric constitution. This was achieved through Scotland Act 1998, Northern Ireland Act 1998, and Government of Wales Act 2006 which allows them the power to make and operate laws on certain subjects within their respective territories. As they are Acts the Westminster Parliament retains its overall legislative supremacy under each of these devolution settlements, essentially reserving the Westminster Parliament’s legal right to take back its legislative power by repealing the Devolution Acts if it chooses while reserving the right to legislate on any matter . Arguably, devolution has limited Parliament sovereignty as these acts are deeply entrenched within the devolved areas, to the extent that it might not be politically possible or practical for Parliament to annul the Acts.

The influence of devolution on Scotland, Wales, and Northern Ireland is critical to assess whether devolution has limited the sovereignty of the Westminster Parliament. Whereas the Westminster Parliament is legally sovereign and could retain the power delegated to the devolved administrations, the political power assumed by the three countries through devolution could indicate a reluctance to accept the traditional doctrine of Parliamentary supremacy in the future. The close result in the Scottish independence referendum of 2014 and the election of 56 SNP MPs in 2015 is evidence of this increase in political power . Furthermore, the case of AXA General Insurance Ltd v The Lord Advocate emphasizes the considerable amount of power these devolved administrations have. The Appellants sought to challenge the validity of the 2009 Act of the Scottish Parliament on two ground: its incompatibility with Article 1 of Protocol 1 of the European Convention on Human Rights (outside Scottish Parliament under the Scotland Act 1998), and that the 2009 Act was open to judicial review as an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament . Although, the Supreme Court ruled against this claim as the Scottish Parliament was within its legislative power, the power of the devolved legislatures is made clear in Lord Hope’s statement. He stated that “The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.” The statement shows that the development of devolution has allowed these administrations complete legislative control within their territories and that the UK Government has limited statutory powers to intervene in proposed Acts of the Scottish Parliament. This may indicate that the UK Parliament has lost considerable power in these areas, but it is important to recall that it still retains overall obdurate legislative supremacy.

On this point, the impact of Brexit is instrumental in demonstrating that the Westminster Parliament still retains its legislative sovereignty over the devolved administrations, showing that the application of devolution has no limited the power of Parliament. The UK government demonstrated its sovereignty by ignoring the Sewel Convention and continued to ask Parliament to pass the Withdrawal Bill, without the consent of the Scottish Parliament. Concluding that the UK Parliament retains all its legislative powers as the Brexit situation highlighted that it can still disregard the wishes of the devolved administrations, within its legal jurisdiction.

In conclusion, devolution was not intended to weaken the power of Westminster, but contain the risk of independence, which did threaten Westminster’s power. Thus, the concept of devolution has not limited the sovereignty of Parliament. On the other hand, cases such as the Jackson case have highlighted that Parliamentary sovereignty should to an extent be limited to prevent it being misused and protect liberties.

11.12.2018

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