The of Westminster powers to devolved institutions. Membership of

The
theorist Dicey outlined the principles of Parliamentary Sovereignty with the
defining factors of “the right to make or unmake any law”1, “no
person or body is recognised by the law of England as having a right to
override or set aside the legislation of Parliament”,2 Parliament
may not be bound by predeceasing Parliaments and Acts of Parliament are the
supreme authority over any other legal body. In Dicey’s words “Parliament
is…and absolutely sovereign legislature”.3 The
extent to which Dicey’s traditional definition of Parliamentary sovereignty can
be argued to no longer remain in this age, the main reasons are the limitations
and control of legislation by the European Union over Parliament and delegation
of Westminster powers to devolved institutions.    

 

Membership
of the European Union, until 2019, creates significant limitations on
Parliamentary sovereignty. Parliament passed the European Communities Act 1972
which states under Section 2(1) EU laws and regulations which are “directly
applicable” or have “direct effect” will be automatically enforced within the
UK “without further enactment”.4
Meaning the UK Parliament has no power or authority over whether to encompass
these regulations into domestic law challenging Parliament’s sovereignty over
national law. There are further limitations of sovereignty within Section 2(4)
and Section3(1) of the Act suggesting the notion of European Union law
supremacy over national law in cases of conflict, hinted in the wording of
“have effect subject to” EU law, thus following a rule of priority. An example
that demonstrates this thinking is the case of Factortame 1991,5
the House of Lords decided to ‘disapply’ the Merchant Shipping Act 1988 in
favour of the interpretation of the European Union Law on discrimination.6 Professor
Wade analysis of the case in 1998 described this decision as a legal
‘revolution’ altering the rule of recognition,7 it
has contradicted one of Dicey’s fundamental principles defining Parliamentary
sovereignty “no person or body is recognised by the law of England as having a
right to override or set aside the legislation of Parliament”8 which
in turn challenges Dicey’s account of the doctrine of Parliamentary
sovereignty.

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On the
other hand it can be argued that Parliamentary sovereignty still remains
accurate to Dicey’s account as expressed by Lord Bridge explaining the
judgement in the Factortame case. He
has conveyed the idea that limitations are placed upon Parliament due to
European Union laws as being ‘accepted voluntarily’ “whatever limitation of its
sovereignty Parliament accepted when it enacted the European Communities Act
1972 was entirely voluntary”,9
this understanding has been specified in Section 18 of the European Union Act
2011.10
This is because the European Communities Act 1972 itself is an Act of
Parliament and therefore Parliament still holds sovereign power to repeal the
Act.11
This example is now reality as famously known in the case of Miller 201712
whereby government requires Parliament’s vote to enact article 50 to leave the
European Union. However the argument of voluntarily allowing European Union law
a rule of priority can be weakened due to the reason that continuing membership
of the European Union requires the obligations and duties of the European
Communities Act to be followed. Only now because of Brexit is Parliament
willing to exercise its sovereign power, this indicates that while the UK
remains in the European Union Parliamentary sovereignty in the form of Dicey’s
traditional account does not remain accurate.                

 

Devolution of
Westminster’s power, therefore its sovereignty, to regional institutions and
bodies can be seen as a sign of decreasing sovereignty held by Westminster
Parliament alone. The Devolution Acts in 1997 and 1998131415
lead to the creation of the Scottish Parliament, National Assembly for Wales
and the Northern Ireland Executive. These institutions have been delegated
devolved and reserved powers dealing with issues such as ‘devolved matters’ and
constitutional matters previously dealt solely by Parliament. Both Scotland and
Northern Ireland are able to enact legislation that even overrides UK law within
their own regions. Thereby reducing parliamentary sovereignty over to another
region body and once again goes against Dicey’s traditional account of
sovereignty “the right to make or unmake any law”16
has been given to other institutions to a certain exent.

On the
contrary one might argue Parliament still retains its sovereignty over these
devolved institutions as it may be difficult to claim they are on par with
Westminster’s legal superiority.17 As
Parliament was themselves the ones to devolve the power they have the legal
authority to recall some or all of the powers back to Westminster if so chose.
In this sense Westminster has not lost any sovereignty but merely allowed other
institutions to exercise its sovereign powers in its place. This argument to
claim Parliamentary sovereignty, as Dicey has described it, remains accurate is
countered by the political conventions expected of Parliament. The Scotland Act
1998 Section 18 includes the Sewel Convention “Parliament of the United Kingdom
will not normally legislate with regard to devolved matters without the consent
of the Scottish Parliament”,18
this convention is not legally binding upon Westminster therefore they are able
to interfere with the devolved institutions enactment of ‘devolved matters’,
however the political constitutional implications which Elliot has pointed out “the
potency of the political commitment that such legislative provisions would
disclose”19
will most likely lead to discontent with Parliament from both the devolved
institutions and electorate who might likely challenge Parliament on that decision.
  

 

In conclusion Dicey’s traditional account of
Parliamentary sovereignty does not remain accurate. The argument for
Parliamentary sovereignty remaining accurate to Dicey to this day would only be
in legal writing as it appears that many of Parliament’s powers have remained
unchanged leading to the belief Parliament is still sovereign on paper, the
reality is that the institution would be unable to enact many of its remaining powers,
such as recalling devolved administrations powers, because of the emergence of
restraints bound to Parliament by political constitutionalism in place of legal
constitutionalism. Parliament may still hold the power to “make and unmake any
law it pleases”, however the political repercussions that is inevitable if
Parliament would defy a ‘directly applicable’ European Union law is such a
significant limitation, there is beyond reasonable doubt that Parliament would
ever exercise its sovereignty in the way Dicey would describe. Therefore
Parliament does not hold true practical sovereignty.

1 A.V Dicey, Introduction to
the Study of the Law of the Constitution (Liberty Fund Inc 1982) 4.

2 A.V Dicey, Introduction to
the Study of the Law of the Constitution (Liberty Fund Inc 1982) 4.

3 A.V Dicey, Introduction to
the Study of the Law of the Constitution (Liberty Fund Inc 1982) 3.

4 European Communities Act 1972

5 R (Factortame Ltd) v Secretary of
State for Transport (No 2) 1991 1 AC 603

6 Merchant
Shipping Act 1988

7 William Wade, Sovereignty—Revolution or
Evolution?, 112 LAW Q. REV. 568 (1996)

8 A.V Dicey, Introduction to
the Study of the Law of the Constitution (Liberty Fund Inc 1982) 4.

9 R (Factortame Ltd) v Secretary of
State for Transport (No 2) 1991 1 AC 603, 659

10 European Union Act 2011

11Mark Elliot, If EU law is
supreme, can Parliament be sovereign? (Public Law for Everyone 2016)

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

13 Scotland Act 1998

14 Northern Ireland Act 1998

15 Government of Wales Act 1998

16 A.V Dicey, Introduction to
the Study of the Law of the Constitution (Liberty Fund Inc 1982) 4.

17 Mark Elliot, The Principle of
Parliamentary Sovereignty in Legal, Constitutional, and Political Perspective (Oxford
University Press 2015), 42

18 The Sewel Convention

19 Mark Elliot, The Principle of
Parliamentary Sovereignty in Legal, Constitutional, and Political Perspective (Oxford
University Press 2015), 44