Public Law (Parliamentary Supremacy)

Q. Discuss the extent to which Dicey’s account of parliamentary sovereignty has become increasingly
difficult to reconcile with constitutional reality in the UK.

Ans. Parliament is one of the three organs of the state which deals primarily with making laws. It has
two houses; house of commons and house of Lords, the former being elected. Unlike judicature, being
elected gives Parliament the merit or public mandate hence deeming their law making legitimate. This is
the reason why the doctrine of Parliamentary Sovereignty is practiced in United Kingdom for centuries.

A.V. Dicey gave the traditional or the most stereotypical definition of Parliamentary sovereignty having
three limbs; Parliament can make or unmake law on any subject matter whatsoever, no parliament can
bind its successor and that no organization, body or institution can question or validate an Act of
Parliament. One would now analyze the extent to which these three points are true keeping in mind the
constitutional reality in UK.

The power or sovereignty of Parliament can be analyzed by Wade’s statement who said that’ “rule is
above and beyond the reach of statute… because it is itself the authority on the statute”, this shows that
Parliament owes its authority to the rule of law, without which it has no power. Furthermore
Parliamentary sovereignty was upheld in the case of Madzimbamuto v Larnder Burke in which it was
held that nothing is beyond the power of parliament and that it can make any law on anything no matter
how illogical or immoral it is.

The difficulty the courts feel while questioning the validity of an Act of Parliament can be seen via
Enrolled Bill Rule. Courts are very reluctant to challenge the validity or authority of an Act of Parliament.
In Edinburgh and Dalkeith v Wauchope it was held that if an Act has been passed by both the houses of
Parliament and has received the Royal Assent, no court of justice can question its validity or inquire
about how it was introduced in the Parliament. The said principle was reinstated in British Railway
Board v Pickin.

It is true that the courts cannot restrict parliament from making laws on something but to limit its law
making powers, limits can be put on the manner and form of how legislation is done. If the correct
procedures are not followed and the necessary SOPs are not taken, the courts can and they will prevent
the subsequent Act from being passed, Minister of Interior v Harris. Before coming to the clash
between parliamentary sovereignty and EU, the last thing one would discuss are the Parliament Acts of
1911 and 1949 which state that an Act can be passed without the consent of House of Lords where
necessary. This cannot take place all the time and in order to pass an Act without the consent or
approval of House of Lords some special steps must be taken. S.1 and S.2 of the Act highlights that when
and how is it possible to pass an Act without approval from the Lords. According to the s.1, money bills
can be passed without the consent of the Lords but the House of Lords would have a month during
which they are required to give their approval, this is because after that month, parliamentary session
would end. S.2 is for non-money public bills which states that a bill or act can be passed without the
approval of the Lords provided that it has met a particular timescale. This would be done where after
the second reading in House of Commons the Act is approved and is sent to the Lords who reject it in
the first session of the Parliament. If the same act is approved again by the Commons and is sent to the
Lords again, in the second session of the Parliament and they still reject it, the Act would be send
directly to the Monarch who when signs, gives Royal assent, the Act would be passed without the
approval or consent of the Lords. This is so because the commons are elected and have the public
mandate whereas the House of Lords are not elected hence they do not have public mandate.

Having discussed what parliamentary sovereignty looks like, one would now discuss the difficulty this
doctrine felt till 2019 after the enactment of EU via ECA 1972. According to the ECJ, where there is a
conflict between EU law and a domestic law of a member state, EU law shall prevail. But if this is done in
UK, wouldn’t it undermine the doctrine of parliamentary sovereignty? In Costa v Enel, ECJ upheld that
membership of EU meant that the member states had willfully surrendered their sovereignty thus giving
supremacy to the EU law. Before coming to the effect of EU on this doctrine of Parliamentary
sovereignty, one would shed light on the effect of EU on other member states.

Starting with the Simmenthal case in which ECJ declared that the Italian courts could declare their
national legislation invalid without waiting for such a ruling to come from the Italian National Courts.
This was followed by Internationale Handelgeselschafft in which it was upheld that where there is a
conflict between EU and a constitutional law of a member state, EU would prevail over that
constitutional law. It is eminent for one to highlight that for any democratic country, its constitution is a
very sacred thing which is often viewed as the ultimate source of law.

ECJ made its presence clear in English legal system in exparte factortame where EU law was in conflict
with an Act of Parliament, Merchant Shipping Act 1988, House of Lords were ordered to set aside their
national legislation and to give supremacy to EU. This was for the very first time that an Act of
Parliament was being set aside just to give supremacy to an external source of Law. As a result many
fingers were raised on Parliament and its doctrine of Parliamentary Sovereignty. Therefore, in
Mccarthys v Smith and Bulmer v Bollinger, Lord Denning defended Parliamentary sovereignty by stating
that EU is seen as sovereign in UK not because it is itself sovereign but because ECA 1972 allowed it to
be sovereign. If it was not for ECA 1972, EU would mean nothing in UK, therefore technically Parliament
is still sovereign. However, considering that what Lord Denning said is right and that it is ECA 1972 which
is being followed then keeping in mind the doctrine of Implied repeal, why was Merchant Shipping Act
unable to repeal ECA 1972 even though it came after ECA 1972? And According to the second limb of
Dicey’s interpretation of Parliamentary sovereignty, no parliament can bind its successor, therefore,
technically Merchant Shipping Act should have repealed ECA1972 and EU should not have been the law
which prevailed. The answer to this issue was given by Laws LJ in Thoburn that a later Act can, without a
doubt impliedly repeal a preceding Act of Parliament however when the former Act is a constitutional
statue, it can only be repealed expressly. This is the reason why the Merchant Shipping Act was unable
to impliedly repeal ECA 1972 which is a constitutional statute. Now what is a constitutional statue, any
act which deals with either of the three of organs of the state or the human rights is deemed as a
constitutional statue. Having said that, ECA 1972 can only be repealed where an Act expressly repeals it,
which has been done now as EU withdrawal Acts 2018 and 2019 have been passed.

EU did not only dented the doctrine of Parliamentary Sovereignty, it also changed the way how courts
interpret an Act of Parliament so that the Act is not inconsistent with EU. This was seen in Webb v Emo
Cargo where the Courts interpreted the Sex Discrimination Act 1975 in a way which made it consistent
with the equal treatment directive of EU. Hence the way courts interpreted the acts was also changed.
Without feeling any qualms, one must assert that Parliamentary sovereignty was undermined the
moment ECA 1972 enacted EU in UK, however such is not the case now. In 2016 a referendum was done
in which 56% of the population of UK voted to get UK out of EU. Working on which attempts on Brexit
were made and EU Withdrawal Act 2018 was passed. But it was not before 2019 when the dream of
getting out of EU was seen to be true as Borris Johnson was successful enough to get a deal and hence
EU Withdrawal Act 2019 was passed which expressly repealed ECA 1972. Despite this, EU would still be
operating in UK till December 2020 because of the transitory period, after which EU would not be
applicable in UK.

However, in order to get Brexit done, Borris Johnson suspended the Parliament at a very unusual time
and for a longer time so that he gets as minimum opposition as he could. Therefore in R (Miller) v PM, it
was held that Borris Johnson misguided the Queen in suspending the Parliament and hence by doing so
wrongfully exercised his prerogative powers.

To conclude, Dicey’s interpretation of Parliamentary sovereignty is a correct image of the constitutional

reality in UK, although this doctrine faced several ups and downs after the enactment of EU via ECA
which did undermine its sanctity but it would not happen again. This is because UK has successfully
walked out of EU after undermining its sacred doctrine of Parliamentary sovereignty in ex parte
factortame, Mc Carthys v smith and Bulmer v Bollinger by the hands of EU. EU withdrawal acts 2018
and 2019 have expressly repealed ECA 1972, however EU would still be operating in UK till December
2020 after which EU would not be applicable in UK. Although attempts are being made by EU to keep UK
bound by EU even after December 2020, but Borris Johnson has made clear that if such attempts are
made again, UK would walkout of EU without a deal.