Parliamentary sovereignty is a concept in the constitutional Law of the United Kingdom. Parliamentary sovereignty means that parliament holds the most supreme authority and cannot be overrode by other government institutions, such as the Judiciary. Parliamentary sovereignty was introduced when King James II was overthrown, and all law-making powers were taken from the monarchy to parliament. However, parliamentary sovereignty has a restriction, parliament cannot make any laws that would bind its successors and unable them to change any laws.
AV Dicey’s summary of parliamentary sovereignty expressed that parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of parliament.’ In this essay I will be discussing AV Dicey’s account of parliamentary sovereignty and its three main principles.
The first principle of parliamentary sovereignty is that parliament has the power to create or end any law. This means that if parliament want to create a law, institutions such as the courts have no jurisdiction once an act is formed. This is in contrast to the USA, where the supreme court has the ability to block a bill being passed if it is seen as unconstitutional. This supports the view that parliament holds ultimate power within law-making because it is not interrupted. An example of parliament using this power in practise was in 1936 where parliament demonstrated its ability to alter the line of succession to the throne. This adjustment demonstrates how parliament is able to unmake laws and change them in order to suit recent times.
The second principle of Dicey’s summary was that parliament cannot be bound by their predecessors and cannot bind their successors. This means that parliament cannot make laws that cannot be changed in future parliaments. This rule removes the chance of the UK having a codified constitution and parliamentary sovereignty would need to be removed before a codified constitution would be introduced. A feature of the UK constitution is that is it uncodified. An uncodified constitution means that the functioning of a government is not found in one single document; the UK’s constitution is derived from many sources such as statues and judicial decisions. A benefit of having an uncodified constitution is that it is flexible and can adapt as times change.
As the constitution is shaped through statues, then ultimately parliament has the sovereignty to over a period of time, shape the constitution. If parliament binds future parliaments or is bound by its predecessors, then parliament would be limiting itself and therefore forfeiting its supremacy. This is a disadvantage for parliament because it would mean that their powers and abilities can be overtaken if their powers are limited. An example of this was in 2002, when parliament repealed the Employment Act 2002. The employment act contained new rules on maternity and paternity pay, allowing fathers to be entitled to paid leave also.
The third principle of Dicey’s theory includes that nobody can override Parliament’s decisions in legislation. This means that the courts cannot reject or bypass a decision and form their own judgement against parliament. The judiciary has a duty to uphold the principle of parliamentary sovereignty, the judiciary is able to support parliamentary decisions by making court decisions based around them.
However, there are limitations to Dicey’s statement. There are arguments that support the view that parliament is no longer truly sovereign. A reason for this is that since 1973, the United Kingdom joined and became a member of the European Union. The European Union is an economic and political union of 28-member states. The aim of the European union was to create free movement of people, allowing people to easily work, visit and live in member countries. Goods and services to be exchanged between countries with no international trade barriers. In addition to common policies and legislation being shared.
When the UK joined the EU, the terms of the membership included that the higher authority in the courts would be the EU courts. EU laws are seen as superior to UK’S laws and British courts must implement EU laws. The powers that has previously been solely held in the UK courts were now transferred on to the EU, appeals could be taken higher and go through the EU courts for appeal if the result wanted was not achieved from the courts in the United Kingdom. Ultimately this means that the EU can override and change decisions made by the supreme court in the United Kingdom and removes parliament having ultimate sovereign power. In the European Union’s court, the United Kingdom has lost over 40 cases within the last decade. This is where decisions have been overruled by the EU courts. However, due to the UK voting to leave the European Union and triggering article 50, the UK will now take back power and full control over the courts and decisions made by them. Article 50 is a treaty where if a member state of the EU triggers it, then this would mean that they would begin the process of withdrawal from the European Union.
On the other hand, the United Kingdom can still be seen as sovereign because they are able to leave the EU and UK leaders have managed to exercise influence in ways such as avoiding particular policy areas from being discussed, this limits EU powers and enables the UK to have a greater influence within the European Union.
Another factor that could be argued to limit parliament’s sovereignty is devolution. Devolution is the dispersal of power to a lower level, by central government to devolved administrations. In 1998 Westminster parliament dispersed power to the elected, sub- national governments; Scottish parliament, the national assembly for wales and the Northern Ireland assembly. This act leads to the devolved administrations implementing different legislations for themselves, such as Scotland and Wales introducing no University tuition fees for students seeking further education.
However, the United Kingdom still remains as a unitary constitution, Westminster still holds the power to abolish devolution if it desired.
In conclusion, I believe that Dicey’s summary does remain a true account of parliamentary sovereignty. Parliament remains sovereign through the ability to create any law. This is supported by the UK’s uncodified constitution, this allows the constitution to adapt as times develop and new situations occur. Parliament also remains holds the ultimate supremacy by the rule that it cannot be overruled or challenged members such as the monarchy or the UK courts.
Although some may argue that parliamentary sovereignty has been diminished through the UK’s membership of the EU and Devolution, however I believe that it is important to remember that the UK still holds the authority to repeal these decisions. The UK can withdraw its membership within the EU by triggering article 50, the UK exercised this in the 2016 Brexit referendum vote. Westminster can also take back control from the devolved administrations and bring the power back into Westminster parliament.