The faces, the cases of Evans and

The sovereignty of
Parliament in the United Kingdom is a deep – rooted and debated issue in
present times. The concept originated in 1689, when the Earl of Shaftesbury
declared “The Parliament of England is that supreme and absolute power, which
gives life and motion to the English government.”1
However, the present years have shown us various issues that can affect the
notion of Parliamentary Sovereignty and Diceys theory has lacked credibility,
although parliamentary sovereignty has come back into play in very recent
times. This essay will argue that in theory, to acquire this conclusion, the following
are essential to consider: the definition of parliamentary sovereignty and
challenges it faces, the cases of Evans and Miller, the United Kingdoms
membership of the European Union, as well as devolution.

A.V. Dicey, introduced
the most significant definition of parliamentary sovereignty. Firstly, that
parliament has the right to make or unmake any law and secondly that no person
or body is recognised as having a right to override or set aside the legislation
of parliament. 2
With regards to the first point Dicey made, it signifies that all laws are
enacted using the same procedures, with no parliament being able to bind a
future parliament. Moreover, there is no hierarchy between constitutional along
with other statutes in that our law does not recognise that an act or statute
has higher importance than the other. 3
The second point of the definition highlights that no body, in particular
English judiciary can inquire into the passage of an Act of Parliament. This
was demonstrated in the case of Manuel v Attorney General4
that held courts can only interpret and apply acts of parliament and that no
courts can refuse to obey it or question its validity. This position can
however be challenged. For example, in the case R v Evans (Attorney General) 5,
it was held that although the Supreme Court did not inspect contents of the
letters, it was demonstrated by the Supreme Court to interfere with the
judiciary. Therefore, it can be argued that parliament was sovereign over the
executive. In contradiction to parliamentary sovereignty, in paragraph 54 of
Evans, Lord Neuberger recognised “Constitutional importance of the principal
that a decision of the executive should be reviewable by the judiciary”.6
This implies, that the judiciary will not just let the executive make important
constitutional decisions without the consultation of the judiciary, somewhat
taking away that significance of power from the executive. Secondly, evidence that
the sovereigns power is diminishing from the case of Evans was demonstrated by
the Attorney General being unable to issue a certificate merely because a
different conclusion would have been reached from the upper tribunal. Thus,
showing the reduced loss of power that parliament sovereignty holds.

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Another challenge that
threatens the foundation of parliamentary sovereignty is the UKs current EU
membership and the Human Rights Act 19987
that was subsequently enacted. The United Kingdom, joined the European Union in
1973. However, prior to the United Kingdom’s membership, there was a law put in
place by the European Court of Justice that EU law took priority over any law
that an individual member state would make. 8
Membership into the EU signifies its recognition that EU law is supreme and
binding. This was first highlighted in the case of Costa v Enel9 in
which the European Court of Justice declared ascendancy of EU law in all member
states and they had restricted their sovereignty upon membership. Furthermore,
in the case of R (Factortame Ltd) v Secretary state for Transport10, the
House of Lords accepted the supremacy of EU law and disapplied the Merchants
Shipping Act 199811,
a domestic law that conflicted with EU law. This was a highly controversial
case as both the Court of Appeal and House of Lords held that the no national
court was obliged to suspend an Act of Parliament, although the outcome of the
case demonstrated the supremacy of EU law over domestic law.

Previous cases such as
Thoburn vs Sunderland City Council12
have shown that parliament can repeal or amend the 1972 European Communities Act.
This did cause issues within the court as to whether the Weights and Measure
Act 1985 14
showed inconsistency. This can be argued however with the membership of the EU
resulting in the enforcement of the Human Rights Act 1998, signifying that
parliament have the right to make or unmake any law it desires, on the basis
that the law complies with the Human Rights Act. 15
This demonstrates that with the introduction of this Act, parliamentary
sovereignty is not being applies, as it should by A.V Diceys definition.
Furthermore, the act limits actions of future parliaments with regards to
certain decisions based on previous doctrine. An example of this could be the
re-introduction of execution that would be overrules by the Act in regard to
Article 2, 16
which imposes an obligation on the UK to protect a right to life. However, this
contradicts the notion of parliamentary sovereignty in which no person or body
should be able to restrict the decisions of parliament. Thus, the decision of
the UK to join the EU resulted in limitations to parliamentary sovereignty and
its place in constitutional law being replaced by EU laws that are constantly
being introduced.

Devolution in the UK
has also proposed restriction on parliamentary sovereignty being the principal
rule in constitutional law. As a result of devolution, various legislative
powers have been transferred to political units in Wales, Scotland and Northern
Ireland. This reflects increased public support for self-governing in these countries.
An example can be seen in the recent referendum in Scotland, this demonstrated
the public opinion for their own independence. The result of the referendum highlighted
that political times are changing, with more individuals desiring devolution
from the UK and therefore, nationalism. Northern Ireland has also contributed
to a growing threat to parliamentary sovereignty over the years. The Temporary Provisions
Act 197217
of Northern Ireland saw Westminster dissolve the government, however devolution
was returned in 2007 under the Northern Ireland Act. The position today has
evolved to an extent, with Westminster permitting devolved powers over policing
and justice to the executive.18
The devolution of Wales, albeit not as extensive as Scotland and Northern Ireland,
still shows interference of the position of parliamentary sovereignty. This was
demonstrated with the introduction of the Government of Wales Act 2006,
highlighting a separation of powers between the legislative and executive
branches. 19
Nonetheless, parliamentary maintains a distinct presence in Wales, as measures
of National Assembly must be approved by Westminster. Therefore, the devolution
of Wales, Northern Ireland and Scotland exposes the position of parliamentary
sovereignty in past years of the UK, suggesting that with time and political
change Dicey’s view is increasingly hard to uphold.

In argument to the fact
parliamentary sovereignty has hindered and doesn’t have the effect it once did,
R (On the Application of Miller and another)20
argues the point that the power of parliament against the executive, with the
judiciary of supreme court holding the decision, that the executive alone
cannot trigger the process of leaving the EU. Supreme court made clear that
consultation of parliament alone was not merely enough and that for the trigger
to be in place it must be done within statute. This was proved with the
majority of judges approved that Dicey’s comment that the UK constitution is
the most flexible polity in existence.21 It
was also argued, that the government cannot make such decisions and it must go
through parliament, backed up by Lord Reed who said “As will appear, section
2(1) enables EU law to be given a direct effect in our domestic law, but within
a framework established by parliament, in which parliamentary sovereignty
remains the fundamental principle”.22

The approach that
parliamentary sovereignty still remains as accurate as it once did is one of
great debate. In theory, it should function as this due to the historical and
political significance it upholds in addition to the contribution of stability,
but the traditional view of Dicey has struggled to maintain. However, in
realty, although the increasing presence of the rule of law and EU provisions
alongside the ever-changing notion of devolution of Wales, Scotland and
Northern Ireland demonstrates the undermining position of parliamentary
sovereignty in the UK constitution today, the case of Miller brought back to
life Dicey’s tradition of parliamentary sovereignty. With the UK in the process
of leaving the EU, the legislative power will be awoken as the UK becomes one.

Sir Jeffery Jowell & Dawn Oliver QC, The
Changing Constitution. Oxford. Oxford University Press. 2011. (P.28.)

Albert V Dicey, An Introduction to the
study of the Law of the Constitution. London. Macmillan and Co Limited.
1902. (Pg.39-40)

3 Bradley
and Ewing. Constitutional and
Administrative Law 15th Edition. Edinburgh. Pearson Education Limited.
2007. (Pg. 55)

4  Manuel
v AG 1982 3 All ER 786.

5 R
(On the application of Evans) v Attorney General 2015 UKSC 21

6 R
(On the application of Evans) v Attorney General 2015 UKSC 21 54

7 Human
Rights Act 1998, Article 2.

8 Article
I-10(1) of the EU’s Draft Constitution, available at

9 Costa
v Enel 1964 ECR 585 (6/64)

10 R
v Secretary of State for Transport ex parte Factortame Ltd and others – 2000 All
ER (D) 1174

11 Merchants
Shipping Act 1998.

12 Thoburn
v Sunderland City Council 2003 QB 151

13 1972
European Communities Act

14 Weights
and Measure Act 1985.

15 Human
Rights Act 1998.

16 Human
Rights Act 1998, Article 2.

17 Superseded
by the Northern Ireland Constitution Act 1973.

18 Hillsborough
Castle Agreement 2010.

19 Government of Wales Act 2006.

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

21 R
(On the Application of Miller) v Secretary of State for Exiting the European
Union 2017 UKSC 5 40

22 R
(On the Application of Miller) v Secretary of State for Exiting the European
Union 2017 UKSC 5 183