Introduction the European Union (EU), and those that may

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” 
and risks rebellion by the courts. 
So, can Dicey’s Parliament of ‘uninterrupted and un-overridable
legislative power’  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 law , critics of parliamentary sovereignty adopt
the argument that the concept was suspended by the UK’s membership in the
European Union.  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.  Wade argues that this
entails that the courts transferred sovereignty from Parliament to the European
Union.  However, this is a view that is
distorted because it fails to adequately acknowledge the role played by the
European Communities Act (ECA) 1972.   
Its enactment signposts Parliament’s intention to grant the courts the
power override domestic legislation when conflicts arise with  European laws.   Thus, Parliament does not transfer its
sovereignty. Lord Bridge in Factortame (1991)  
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could be repealed but until then Parliament’s intentions must be expressed.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. 

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.  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.  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domestic legislation, the ECA (1972) is repealed.  In Thoburn (2002) , 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.  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.  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.  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. 
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.  
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.  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) 
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.  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.  Thus, it re-affirmed that parliamentary
sovereignty trumps the executive’s prerogative power.

 

The Power of Judicial Review

The rule of law dictates that executive decisions should be
subject to a judicial review. The 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. 
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 Jackson , held the unpopular opinion
that the court might overthrow parliamentary sovereignty for the rule of
law.  In respect of Lady Hale’s claims,
the case of Evans , Anisminic  and
Privacy International  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”  and thus, eroding
the sovereignty of Parliament.  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. 
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”  which both concepts
maintain, with which Parliament will intend to undermine the rule of law.  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. 
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. 
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.  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.  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. 
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.