IntroductionIn the 21st century, the relevanceof Dicey’s conception of absolute parliamentary sovereignty is being calledinto question, and this essay will make a case that secures the accuracy of hispostulations in modern times. Lord Woolf proposes that if Parliament legislatesagainst the rule of law, it perpetuates the “unthinkable”1 andrisks rebellion by the courts.2 So,can Dicey’s Parliament of ‘uninterrupted and un-overridable legislative power’3 be overthrownby the rule of law, in today’s constitutional arrangement? This will beexamined by looking at a chronology of cases on how the courts react when facedwith legislation that may affect international obligations to the EuropeanUnion (EU), and those that may oust its powers of judicial review.
EUmembership Using case law4, criticsof parliamentary sovereignty adopt the argument that the concept was suspendedby the UK’s membership in the European Union.5 Thetreaty of Rome provides for the EU laws to take precedence over any conflictingdomestic legislation, thus arming the courts to invalidate an enactment of Parliament.6 Wadeargues that this entails that the courts transferred sovereignty from Parliamentto the European Union.
7However, this is a view that is distorted because it fails to adequatelyacknowledge the role played by the European Communities Act (ECA) 1972. 8 Its enactment signposts Parliament’s intentionto grant the courts the power override domestic legislation when conflictsarise with European laws. 9 Thus,Parliament does not transfer its sovereignty.
Lord Bridge in Factortame (1991) 10 endorsedthe opinion that in the same way that the act was enacted, it could be repealedbut until then Parliament’s intentions must be expressed. Thus, with that power,Parliament secures its sovereignty.11 Prima facie, the concept of choices whichcannot be undone negates this idea that Parliament can unintentionally rescindits choice to create the ECA 1972.12 Secondly,it is suggested that parliamentary sovereignty is incompatible with theexistence of the ECA (1972), as the presence of the latter upsets the doctrineof implied repeal.13 It isvital to the doctrine that if it were the case that the European legislationconflicts with subsequent domestic legislation, the ECA (1972) is repealed.14 In Thoburn(2002)15, LawsLJ identified that the 1972 act, unlike other legislation, occupies a commonlaw constitutional status and so it cannot be Parliament’s intention to repealit impliedly.16 Whilethis resolves the second issue, it raises another: Does the court’s power todecide which legislation occupies such status institutionalise this threat?Allan claims this as the implication of the self-embracing theory which entailsthat the courts may declare a subsequent legislation invalid in light of anearlier one.
17Looking at the Human Rights Act (HRA) 1998, there may be some truth to the intentionof Parliament to create legislation that occupies a unique constitutionalposition in the presence of said doctrine. The difference between bothenactments is that there are express provisions in the HRA which strengthensthe court’s disposition to accept the legislation as occupying a higher legalstatus, which is not reflected in the ECA. However, the similarities in theimplication of both statutes suggest that they should occupy higher legalstatus than all other legislation.18 Byenacting the ECA and HRA 1998, Parliament shows that it intends to manipulatethe concept of its sovereignty, to which the courts are in no position tohinder.
19 Aslong as the constitutional role of the courts remains to continue to expressthe true intention of Parliament, it must accept when enactments of Parliament areintended to manipulate Parliament’s sovereignty.20 Thus, Parliament intended that its entry into the EU will redefine itssovereignty, that considering this and the HRA 1998 the courts may question the validity of itsenactments, but that ultimately, its sovereignty remain with it.21 Subsequently,it is re-established that Parliament’s enactments cannot be overridden withoutits express permission, and the fact that it may decide to withdraw thatpermission, secures its absolute sovereignty.
To conclude the case theimplication of the ECA makes for the modern-day relevance of Dicey’s parliamentarysovereignty, the position of the courts in the recent case of Miller (2017)22 willbe examined below.2017:The Miller Position The court’s decision here presents reliablesupport for Dicey’s promulgation of Parliament’s uninterruptable andun-overridable legislative power.23 Itwas 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 bevalidated.24 Thus,it re-affirmed that parliamentary sovereignty trumps the executive’sprerogative power.25 ThePower of Judicial ReviewThe rule of law dictates that executivedecisions should be subject to a judicial review.26Therelationship between the Parliament and the executive justifies suspicions ofundue influence which the latter may exert on the former, in a bid to be lessaccountable.27 Thus,in protecting the sovereignty of Parliament, the courts repeatedly finds itselfmediating between the executive’s legislative interpretation and theconstitutionally compatible intentions of Parliament.
In the extremities ofasserting this position, Lady Hale, in Jackson28, heldthe unpopular opinion that the court might overthrow parliamentary sovereigntyfor the rule of law.29 Inrespect of Lady Hale’s claims, the case of Evans30, Anisminic31 and Privacy International32 willbe examined to determine the court’s position.2009:The Evans Position Despite the conflicting stances the rule of lawtook in its relationship with parliamentary sovereignty, the courts decided totake the position that any attempts to oust judicial review by Parliament hadto be done expressly. Thus, except explicitly stated, Parliament does notintend to renege the court’s power of judicial review. Some see this positionof the majority as a “judicial overreach”33 andthus, eroding the sovereignty of Parliament.34 But first,it is worth acknowledging that this is a contradiction in terms of therelationship between common law and parliamentary enactments. And so, if indeedthe interpretation given by the courts did not reflect Parliament’s intention,legislation could have been made against it.
35Secondly, bearing the first point in mind, if it were simply the case that thecourts intended to place the rule of law above parliamentary sovereignty, itwill require that it renders the legislation as invalid. This entails a conclusionthat the law is invalid because it infringes on human rights. However, theposition the court took simply recognised the rarity, per the “mutual respect”36 whichboth concepts maintain, with which Parliament will intend to undermine the ruleof law.
37 Assuch, instead of assuming the position to overrule the rule of law wasintentional, it provided that the Parliament will need to provide furtherclarification. 1969– 2017: Anisminic to Privacy internationalLord Reid’s position in Anisminic was that a broad statement could not successfully oustjudicial review.38 Farfrom this is the decision held by the court of appeal in Privacy International, where Court of Appeal declared that the Regulationof Investigatory Powers Act (RIPA) 2000 had clearly and successfully ousted thejudicial review power of the high court.
39 Aclose look at the legislations in question shows a similarity in the languageused, so what is the justification for the court’s position? Leggatt J claimedthis is a function of the differences which exist between the Upper tribunal inresolving issues appealed from the 1st tier tribunal and the InvestigatoryPowers Tribunal (IPT) in supervising intelligence authorities.40Furthermore, that the similarity in the composition and jurisdictions of theHigh court and the IPT makes questionable the necessity for the Act to protectthe judicial review powers of the High court.41 Whatdoes this mean for the rule of law and parliamentary sovereignty? First, it suggeststhat legislative intent may never really to subvert the rule of law (judicialreview). Secondly, these cases establish that the court is willing to enforce sovereigntyin instances where Parliament acts to override the rule of law. Thus, for LadyHale, Parliament did perpetuate the unimaginable, but the Court of Appealsought to maintain Parliament’s sovereignty, and this is the view that willremain except the Supreme Court departs from the court’s decision. ConclusionLordWoolf suggests that to say what Parliament legislates is absolute is simply a fantasy.
42However, for Dicey whilst Parliament is not omnipotent, it may legislate as itpleases, and these must be enforced by the courts. As shown in the casesdiscussed, particularly in Miller and Privacy International, Parliament’s sovereigntyis no fantasy. Where the rule of law objection poses itself in the form ofobligations to European law, to which it is suspected that Parliament transfersits sovereignty, there is a failure to comprehend the constitutionalsignificance of the ECA fully. Furthermore, where it is posed as an inabilityof Parliament to legislate against what is presumed as a fundamental, judicialreview, the courts reinforce its sovereignty. The 21st_ centuryreality is that Parliament may perpetuate the unthinkable if it pleases, andcourts lack the remedial power to declare such legislation invalid. Thus,Dicey’s postulation remains accurate.
1 LordWoolf, ‘Droit Public – English Style’ 1995 PL 57,692Woolf(n 1) 693 Roger Michener and A.V. Dicey, Introduction to the Study of the Law of the Constitution (8thedn, Liberty Fund Incorporated, 1983) 3-44 Case26-62 NV Algemene Transport- en ExpeditieOnderneming van Gend & Loos v Netherlands Inland Revenue Administration 1963ECR 15 H.W.R Wade, ‘The Basis of Legal Sovereignty’ (1955), 13(2) CLJ 172, 1886 Lord Bingham, ‘The Rule of Law and the Sovereignty of Parliament'(2008) 19 KLJ 223, 229-2307 Wade (n 5) 1888 Bingham (n 6) 229-2309European Communities Act (1972), ss 2(4) and 3(1)10 Factortame Ltd.
and Others v Secretary ofState for Transport Respondent 1990 2 AC 85 (HL)11 Mark Elliot, ‘Factortame and the voluntary acceptance of limitson sovereignty: A response to Professor Mead’ (Public law for Everyone), 22February 2016)< https://publiclawforeveryone.com/2016/02/22/Parliamentary-sovereignty-and-eu-law-a-response-to-professor-david-mead/>accessed 16 January 201812 MarkElliot, ‘Factortame and the voluntary acceptance of limits on sovereignty: A responseto Professor Mead’ (Public law for Everyone), 22 February 2016)