As stated by Lord Bingham, the sovereignty of Parliament forms the bedrock of our British Constitution . Philosopher A.V. Dicey, explores the power that the legislature holds in society, but it has been criticised to be no longer relevant due to many political challenges of it. In the case of Jackson , Lord Steyn states the shift of of its political position in society, whilst still remaining pivotal when discussing the constitution. This essay will explore the many contradicting threats to the general principle and how regardless of them, Parliament can still be seen as sovereign and whether this is reflected by the governmental earthquakes that have triggered differing views.
The main doctrine of the sovereignty of Parliament by A.V Dicey is:
1. Parliament can make and unmake any law whatever, and
2. No individual is recognised…as being able to override or set aside legislation by Parliament
Ultimately, his view shows us that he believes Parliament has an unprecedented role in the making of legislation that cannot be challenged. The lack of a written constitution in the UK allows the fluidity and flexibility to decide laws at any time. This power has been speculated to be exaggerated, specifically by Dicey’s claim that ‘[i]f a [sovereign] legislator decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal’. With this view, Dicey is expressing the extent to which Parliament have power to enact laws, despite how unconstitutional it may seem. However, through statutory interpretation and the courts, where the law is silent , they can change the way acts created are understood. Nevertheless, there have been examples where courts refused to alter the law on a given point, e.g. the refusal to change the law on doli incapax. Sovereignty is a legal rule created by common law, allowing the courts to alter it if they see the need to . Courts are simply not prepared to refuse to apply legislation; their role is accepted by all . Lord Steyn denies the idea of Parliament being ‘pure and absolute’ in the contemporary UK now, but that it still holds the right to enact ‘oppressive and wholly undemocratic legislation’ if it wanted to, similarly, Lord Hope in Jackson stated that the ‘rule of law’ is the main factor of the constitution. So, it is not naïve to predict that there may come a day where courts decide to overrule an act of Parliament, only under extreme circumstances.
Regarding Jackson, the validity of the Parliamentary acts of 1911 and 1949 were questioned. This indirectly questions the legislative body and the Hunting Act 2004 under it. The appellant argued that there was no legal validity of the act and the 1949 act was acting ‘ultra vires’ . The judgment upheld the validity of all three acts. The idea of Parliament, (specifically the House of Commons) extending their power through two statutes expresses how ‘only Parliament… could delegate further powers’ . The increasing power of the House of Commons contradicts Dicey’s argument of ‘Parliament mean[ing] the king, the house of commons and the house of lords… acting together ’, as this doesn’t occur with this statute. The Parliamentary acts expresses the Latin principle of ‘delegatus non potest delegare’ (a delegate cannot enlarge its own power). This questions Dicey’s idea, as it appears that the house of commons holds the superiority and that the power in Parliament belongs to the party who owns the most seats in the house. So, it can be argued that the government and the executive are in fact supreme, and not Parliament.
There have been some interferences in terms of the European Communities Act that have directly undermined Parliament’s power. The case of Factortame expressed how European law can challenge the power of Parliament. Wade stated well that “whatever limitation of its sovereignty Parliament accepted when it enacted the European communities Act 1972 was entirely voluntary” additionally, the EU law is supreme over domestic law because of what is stated in domestic law. Factortame demonstrated that if parliamentary law conflicts with EU law, EU law prevails. Wade described this case as a ‘revolution’ for courts to have the ability to make this legal decision . This case threatens Dicey’s second point of no individual having the ability to override an act. If Parliament wanted to repeal the European communities act, it could do so, but as to whether it is ‘pure and absolute’ may not be the case currently, however the decision to leave the EU may reignite parliamentary supremacy once again.
Public opinion and elections have handpicked the legislature, so legislators are likely to do the right thing in terms of passing bills that are fair and just. Supremacy ultimately means the freedom to make any law that Parliament wishes. Dicey’s blue eyed baby example seen as unconstitutional expresses that Parliament is the product of society’s wishes (puppets of society). This is reiterated in the idea of a public referendum when considering the exit from the EU . A non-legally binding referendum whereby the decision determined the controversial Brexit, shows Parliament carries out the will of the people. In fact, if Parliament chose to refuse the results, it would highlight how sovereign Parliament can be, therefore are they truly supreme if controlled by the public?
It has also been argued whether Parliament can absolutely entrench a piece of legislation – making it beyond repeal completely. However, this contradicts one of the main principles that the current Parliament cannot bind a future Parliament, so it is somewhat impossible for them to do so. In the Vauxhall Estates Case , it reinforced that Parliament cannot bind itself. Along with contingent entrenchment, the ability for Parliament to make an act difficult to repeal, reinforces the idea of self-embracing and continuing sovereignty . This both strengthens and weakens the idea of Parliamentary supremacy, as on one side they cannot make an act with the impossibility of being repealed as this will bind a future Parliament. However, this also strengthens this concept, as it allows Parliament the fluidity to amend any law at any time, so the lack of absolute entrenchment maintains this leading principle of the British constitution that governs this country. The case of Jackson also is evidence of the self-embracing theory of sovereignty.
Considering all that I have discussed, Dicey’s original view of Parliament has changed due to the many political interferences that have occurred, and it brings into question whether Parliament still remains sovereign. What is clear is that it is not necessarily ‘pure and absolute’, however it is the highest source in the UK, widely accepted by all the branches of the state. Blackstone stated, ‘What Parliament doth no power on earth can undo’, and this is still somewhat true. Through case law/statutes, it may seem that Parliament is subordinate, but the legislature possesses the power to repeal/revoke at any time which in accordance to Dicey’s view, expresses parliamentary sovereignty for its ability to perform as it likes when it wishes.