Introduction

In the 21st century, the relevance
of Dicey’s conception of absolute parliamentary sovereignty is being called
into question, and this essay will make a case that secures the accuracy of his
postulations in modern times. Lord Woolf proposes that if Parliament legislates
against the rule of law, it perpetuates the “unthinkable”1 and
risks rebellion by the courts.2 So,
can Dicey’s Parliament of ‘uninterrupted and un-overridable legislative power’3 be overthrown
by the rule of law, in today’s constitutional arrangement? This will be
examined by looking at a chronology of cases on how the courts react when faced
with legislation that may affect international obligations to the European
Union (EU), and those that may oust its powers of judicial review.

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EU
membership

Using case law4, critics
of parliamentary sovereignty adopt the argument that the concept was suspended
by the UK’s membership in the European Union.5 The
treaty of Rome provides for the EU laws to take precedence over any conflicting
domestic legislation, thus arming the courts to invalidate an enactment of Parliament.6 Wade
argues that this entails that the courts transferred sovereignty from Parliament
to the European Union.7
However, this is a view that is distorted because it fails to adequately
acknowledge the role played by the European Communities Act (ECA) 1972. 8  Its enactment signposts Parliament’s intention
to grant the courts the power override domestic legislation when conflicts
arise with  European laws. 9 Thus,
Parliament does not transfer its sovereignty. Lord Bridge in Factortame (1991) 10 endorsed
the opinion that in the same way that the act was enacted, it could be repealed
but until then Parliament’s intentions must be expressed. Thus, with that power,
Parliament secures its sovereignty.11

Prima facie, the concept of choices which
cannot be undone negates this idea that Parliament can unintentionally rescind
its choice to create the ECA 1972.12 Secondly,
it is suggested that parliamentary sovereignty is incompatible with the
existence of the ECA (1972), as the presence of the latter upsets the doctrine
of implied repeal.13 It is
vital to the doctrine that if it were the case that the European legislation
conflicts with subsequent domestic legislation, the ECA (1972) is repealed.14 In Thoburn
(2002)15, Laws
LJ identified that the 1972 act, unlike other legislation, occupies a common
law constitutional status and so it cannot be Parliament’s intention to repeal
it impliedly.16 While
this resolves the second issue, it raises another: Does the court’s power to
decide which legislation occupies such status institutionalise this threat?
Allan claims this as the implication of the self-embracing theory which entails
that the courts may declare a subsequent legislation invalid in light of an
earlier one.17
Looking at the Human Rights Act (HRA) 1998, there may be some truth to the intention
of Parliament to create legislation that occupies a unique constitutional
position in the presence of said doctrine. The difference between both
enactments is that there are express provisions in the HRA which strengthens
the court’s disposition to accept the legislation as occupying a higher legal
status, which is not reflected in the ECA. However, the similarities in the
implication of both statutes suggest that they should occupy higher legal
status than all other legislation.18 By
enacting the ECA and HRA 1998, Parliament shows that it intends to manipulate
the concept of its sovereignty, to which the courts are in no position to
hinder.19 As
long as the constitutional role of the courts remains to continue to express
the true intention of Parliament, it must accept when enactments of Parliament are
intended to manipulate Parliament’s  sovereignty.20 
Thus, Parliament intended that its entry into the EU will redefine its
sovereignty, that considering this and the HRA 1998  the courts may question the validity of its
enactments, but that ultimately, its sovereignty remain with it.21 Subsequently,
it is re-established that Parliament’s enactments cannot be overridden without
its express permission, and the fact that it may decide to withdraw that
permission, secures its absolute sovereignty. To conclude the case the
implication of the ECA makes for the modern-day relevance of Dicey’s parliamentary
sovereignty, the position of the courts in the recent case of Miller (2017)22 will
be examined below.

2017:
The Miller Position 

The court’s decision here presents reliable
support for Dicey’s promulgation of Parliament’s uninterruptable and
un-overridable legislative power.23 It
was held that despite the approval of the people to leave the European Union,
the executive needed to secure Parliament’s approval for their actions to be
validated.24 Thus,
it re-affirmed that parliamentary sovereignty trumps the executive’s
prerogative power.25

 

The
Power of Judicial Review

The rule of law dictates that executive
decisions should be subject to a judicial review.26The
relationship between the Parliament and the executive justifies suspicions of
undue influence which the latter may exert on the former, in a bid to be less
accountable.27 Thus,
in protecting the sovereignty of Parliament, the courts repeatedly finds itself
mediating between the executive’s legislative interpretation and the
constitutionally compatible intentions of Parliament. In the extremities of
asserting this position, Lady Hale, in Jackson28, held
the unpopular opinion that the court might overthrow parliamentary sovereignty
for the rule of law.29 In
respect of Lady Hale’s claims, the case of Evans30, Anisminic31 and Privacy International32 will
be examined to determine the court’s position.

2009:
The Evans Position

Despite the conflicting stances the rule of law
took in its relationship with parliamentary sovereignty, the courts decided to
take the position that any attempts to oust judicial review by Parliament had
to be done expressly. Thus, except explicitly stated, Parliament does not
intend to renege the court’s power of judicial review. Some see this position
of the majority as a “judicial overreach”33 and
thus, eroding the sovereignty of Parliament.34 But first,
it is worth acknowledging that this is a contradiction in terms of the
relationship between common law and parliamentary enactments. And so, if indeed
the interpretation given by the courts did not reflect Parliament’s intention,
legislation could have been made against it.35
Secondly, bearing the first point in mind, if it were simply the case that the
courts intended to place the rule of law above parliamentary sovereignty, it
will require that it renders the legislation as invalid. This entails a conclusion
that the law is invalid because it infringes on human rights. However, the
position the court took simply recognised the rarity, per the “mutual respect”36 which
both concepts maintain, with which Parliament will intend to undermine the rule
of law.37 As
such, instead of assuming the position to overrule the rule of law was
intentional, it provided that the Parliament will need to provide further
clarification.

1969
– 2017: Anisminic to Privacy international

Lord Reid’s position in Anisminic was that a broad statement could not successfully oust
judicial review.38 Far
from this is the decision held by the court of appeal in Privacy International, where Court of Appeal declared that the Regulation
of Investigatory Powers Act (RIPA) 2000 had clearly and successfully ousted the
judicial review power of the high court.39 A
close look at the legislations in question shows a similarity in the language
used, so what is the justification for the court’s position? Leggatt J claimed
this is a function of the differences which exist between the Upper tribunal in
resolving issues appealed from the 1st tier tribunal and the Investigatory
Powers Tribunal (IPT) in supervising intelligence authorities.40
Furthermore, that the similarity in the composition and jurisdictions of the
High court and the IPT makes questionable the necessity for the Act to protect
the judicial review powers of the High court.41 What
does this mean for the rule of law and parliamentary sovereignty? First, it suggests
that legislative intent may never really to subvert the rule of law (judicial
review). Secondly, these cases establish that the court is willing to enforce sovereignty
in instances where Parliament acts to override the rule of law. Thus, for Lady
Hale, Parliament did perpetuate the unimaginable, but the Court of Appeal
sought to maintain Parliament’s sovereignty, and this is the view that will
remain except the Supreme Court departs from the court’s decision. 

Conclusion

Lord
Woolf suggests that to say what Parliament legislates is absolute is simply a fantasy.42
However, for Dicey whilst Parliament is not omnipotent, it may legislate as it
pleases, and these must be enforced by the courts. As shown in the cases
discussed, particularly in Miller and Privacy International, Parliament’s sovereignty
is no fantasy. Where the rule of law objection poses itself in the form of
obligations to European law, to which it is suspected that Parliament transfers
its sovereignty, there is a failure to comprehend the constitutional
significance of the ECA fully. Furthermore, where it is posed as an inability
of Parliament to legislate against what is presumed as a fundamental, judicial
review, the courts reinforce its sovereignty. The 21st_ century
reality is that Parliament may perpetuate the unthinkable if it pleases, and
courts lack the remedial power to declare such legislation invalid. Thus,
Dicey’s postulation remains accurate.

1 Lord
Woolf, ‘Droit Public – English Style’ 1995 PL 57,
69

2Woolf
(n 1) 69

3 Roger Michener and A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th
edn, Liberty Fund Incorporated, 1983) 3-4

4 Case
26-62 NV Algemene Transport- en Expeditie
Onderneming van Gend & Loos v Netherlands Inland Revenue Administration 1963
ECR 1

5 H.W.R Wade, ‘The Basis of Legal Sovereignty’ (1955), 13(2) CLJ 172, 188

6 Lord Bingham, ‘The Rule of Law and the Sovereignty of Parliament’
(2008) 19 KLJ 223, 229-230

7 Wade (n 5) 188

8 Bingham (n 6) 229-230

9
European Communities Act (1972), ss 2(4) and 3(1)

10 Factortame Ltd. and Others v Secretary of
State for Transport Respondent 1990 2 AC 85 (HL)

11 Mark Elliot, ‘Factortame and the voluntary acceptance of limits
on sovereignty: A response to Professor Mead’ (Public law for Everyone), 22
February 2016)accessed 16 January 2018

12 Mark
Elliot, ‘Factortame and the voluntary acceptance of limits on sovereignty: A response
to Professor Mead’ (Public law for Everyone), 22 February 2016)accessed 16 January 2018

13 Wade
(n 5) 188

14 TRS Allan, ‘Parliamentary Sovereignty: Lord Denning’s Dexterous
revolution’ (1983) 3 OJLS 1,
26 – 27

15 Thoburn v Sunderland City Council 2002
EWHC 195 (Admin) (QB)

16 Thoburn (n 15) 60 – 65 (Law LJ)

17 Allan
(n 14) 26 – 27

18 Mark Elliot and Robert Thomas, ‘Public Law’ (3rd edn, OUP, 2017) xx

19 Allan (n.14) 27 – 28

20 Mark Elliot, ‘Factortame and the voluntary acceptance of limits
on sovereignty: A response to Professor Mead’ (Public Law for Everyone, 22
February 2016) accessed 16 January 2018

21
Mark Elliot, ‘Factortame and the voluntary acceptance of limits on sovereignty:
A response to Professor Mead’ (Public Law for Everyone, 22 February 2016) accessed 16 January 2018              

22 R
(Miller and another) v Secretary of State for Exiting the European Union
(Birnie and others intervening) 2017 UKSC 5, 2017 2 WLR

23 Michener
and Dicey (n 3) 3-4

24 R (Miller and another) v Secretary of State for Exiting
the European Union (Birnie and others intervening) 2017 UKSC 5, 2017 2 WLR

25 Miller (n 24) 122 – 125

26
Bingham, ‘The Rule of Law’ (n 9) 78

27 Woolf, ‘Droit Public – English Style’ (n 1) 67

28 R (Jackson and others) v Attorney General
2005 UKHL 56, 2005 3 WLR

29 Jackson (n 28) 159 (Lady Hale)

30 R
(on the application of Evans) v Attorney General 2015 UKSC 21, 2015 2 WLR

31 Anisminic Ltd v Foreign Compensation
Commission 1969 2 AC 147 (HL)

32 The Queen on the Application of: Privacy
International v Investigatory Powers Tribunal v Secretary of State for Foreign
and Commonwealth Affairs, Government Communication Headquarters 2017 EWCA
Civ 1868

33 Mark Elliot, ‘A postscript on the Evans
case: The report of the Independent Commission on Freedom of Information and
the Government’s response’ (Public Law for Everyone, 2 March 2016)accessed on 12 January 2018

34
Mark Elliot, ‘A postscript on the Evans case: The
report of the Independent Commission on Freedom of Information and the
Government’s response’ (Public Law for Everyone, 2 March 2016)accessed on 12 January 2018

35 Mark Elliot, ‘A postscript on the Evans case: The
report of the Independent Commission on Freedom of Information and the
Government’s response’ (Public Law for Everyone, 2 March 2016)accessed on 12 January 2018

36 Woolf (n 1) 69

37Mark Elliot, ‘A postscript on the Evans
case: The report of the Independent Commission on Freedom of Information and
the Government’s response’ (Public Law for Everyone, 2 March 2016) accessed
on 12 January 2018

38 Anisminic Ltd v Foreign Compensation
Commission 1969 2 AC 147,
170

39
Mark Elliot, ‘Through the Looking-Glass? Ouster Clauses,
Statutory Interpretation and the British Constitution’ (Public Law for Everyone,
10 January 2018) accessed 11 January 2018

40Paul Daly, ‘Ousting the Jurisdiction of the Courts: R
(Privacy International) v Investigatory Powers Tribunal 2017 EWHC 114
(Admin)’ (Administrative law matters, 6 February 2017)
accessed
31 December 2017

41
Paul Daly, ‘Ousting the Jurisdiction of the Courts: R (Privacy International) v
Investigatory Powers Tribunal 2017 EWHC 114 (Admin)’ (Administrative law
matters, 6 February 2017)
accessed 31 December 2017

42 Woolf
(n 1) 67