Constitutional Crises- Dicey's concept of parliamentary sovereignty is still relevant

Dicey and Parliamentary Sovereignty

Dicey's  argument that parliamentary sovereignty in the UK constitution means that parliament has:

' the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament.' [1]

Image Source: http://thoughcowardsflinch.com/2010/03/23/the-tories%E2%80%99-secret-plans-for-the-end-of-parliamentary-sovereignty/

 First to be considered is the reason Dicey believed parliamentary sovereignty to be this way. For the sake of this article it will be assumed that Dicey intended his definition to be normative in that he was describing how parliamentary sovereignty should be ideally. This article will argue that Dicey's view of parliamentary sovereignty can still be reconciled with constitutional reality.

Since Dicey was writing, the European Communities Act[2], judicial review and the Human Rights Act[3] have been used to argue that his view of parliamentary sovereignty cannot be reconciled with constitutional reality. This article will argue that Dicey's view of parliamentary sovereignty is still accurate in constitutional reality on the grounds that the UK parliament signed the European Communities Act, judicial review reinforces parliamentary sovereignty and the Human Rights Act does not actually make contradictory acts of UK parliament invalid.

The relevance of the European Communities Act

Many would argue that t the European Communities Act could be seen as  evidence that suggests that parliament no longer has ‘the right to make or unmake any law whatever’[4] as Dicey proposes but instead proves that parliament can in fact be overruled by EU law.

In response to this it can be argued that Dicey is in fact right in saying that ‘parliament can make and unmake’[5] any laws because it was parliament who signed the European Communities Act voluntarily and so the sovereignty they gave to the EU can be retained at parliament’s will therefore they can regain absolute sovereignty.  The case of Thoburn[6] even goes do far as to suggest that the European Communities Act 1970 was created by Parliament. So adherence to EU law is merely courts following the will of Parliament. Also Dicey suggests that nobody has the right to override the rules of parliament which again, despite the European Communities Act, is true in constitutional reality. Although the EU can say that UK acts of parliament do not conform to EU legislation it is the parliament themselves who choose to change acts of Parliament in order to make them comply with EU law. If they did not do this then they would be in breach of the European Communities Act but whilst this is not a favourable outcome it is possible.

The point to be noted is that all of the choices related to the transfers of sovereignty due to the European Communities Act were made voluntarily by parliament and can be unmade if parliament wishes. This is explained in the case of Factortame [7] which exemplifies, through the courts suspending the Merchant Shipping Act 1998, how national courts can strike down Act of Parliament's that contravene EU law. In his judgement Lord Bridge explained how EU law should override acts of parliament because it was parliament’s decision to join the European Community and parliament’s decisions must be respected. Therefore Dicey was completely right in saying that parliament has: ‘the right to make or unmake any law’[8]

Judicial Review and judge's creativity

Another counterpoint to the argument that Dicey’s account of parliamentary sovereignty can be reconciled with constitutional reality is one which occurs as a result of judicial review. This counterpoint is based on the views of Paul Craig[9] who argues that judicial review is about judge’s creativity and not parliamentary sovereignty. Craig’s argument counters the argument in this essay by claiming that the content of judicial review is about judges using their creativity to make laws to govern public bodies and stop them acting unfairly. If this is true then Dicey’s account of parliamentary sovereignty becomes very difficult to reconcile with constitutional reality.

Fortunately it can easily be argued that judicial review does in fact reinforce Dicey’s view that parliament does have complete sovereignty in the UK. The strongest argument is based on the ideas of Professor Christopher Forsyth who argued that:

 ‘The judicial achievement in creating modern law did not take place in a constitutional vacuum. It took place against the background of sovereign legislature that could have intervened at any moment,’[10]

This demonstrates how parliamentary sovereignty is the basis of judicial review. It is a strong point that judicial review cannot be used to question acts of parliament and if courts question Acts of Parliament, in judicial review cases, all they can do is request that parliament re-think the act. Courts can in no way force parliament to change an act. Judge’s creativity in judicial review cases is not about overriding parliamentary sovereignty but is actually about the judges extending the law to cover situations that parliamentary sovereignty does not cover. In this sense, judicial review is actually supporting Dicey’s view that parliament have ultimate power within the constitution.  By having this system whereby the courts cannot question parliament’s act and decisions constitutional reality is actually very compatible with Dicey’s view that no one can override parliamentary laws.

      The Human Rights Act 1998

The final counterpoint to the argument that Dicey’s account of parliamentary sovereignty can be reconciled with constitutional reality is a point put forward after examining the Human Rights Act. It can be argued that the Human Rights Act 1998 overrides parliamentary sovereignty is the UK in a way that Dicey deems impossible. Article 6, section 2 of the TEU) [11] imposes an obligation on Member States to respect the rights arising from the European Convention of Human Rights.

One could interpret this to mean that the Human Rights Act is part of law in member states of the EU because EU law has supremacy over national law and so on these grounds Dicey would be inaccurate in saying: ‘no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament.’ [12] However it could be argued that the Human Rights Act supports the acts which the supreme UK parliament has already created. If this is the case then EU law is merely a supporting extension of the UK law which was created by the sovereign UK parliament.  This is the view taken by Lord Millet in Ghaidan v Godin-Mendoza where he judges: ‘Sections 3 and 4 of the human rights act were carefully crafted to preserve the existing constitutional doctrine.’[13] This appears to mean that the Human Rights Act was created as a result of parliamentary sovereignty to conform and not override rights that already existed as a result of acts passed by parliament. If this is the case then Dicey was right. Subsequently this means that every counterpoint mentioned in this essay can be overcome and that the argument that Dicey’s account of parliamentary sovereignty can still be reconciled with constitutional reality is a very strong.

      Conclusion

To conclude, after a concise examination of the possible flaws with the argument, it can be reasonably concluded that Dicey’s account of parliamentary sovereignty can still be reconciled with constitutional reality. The counterpoints that the European Communities Act, judicial review and the Human Rights Act undermine Dicey’s account of parliamentary sovereignty are all very clever arguments, however they can be overcome by looking more closely at the fundamental choices that parliament has made (for example voluntarily signing the European Communities Act). It is when we look closer at the intricacies of the European Communities Act, judicial review and the Human Rights Act that we can see that parliamentary sovereignty was not actually a victim of these concepts but something that they all support and conform to.

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[1]  AV Dicey ,Introduction to the study of the law of the constitution  (first published 1885, London: Macmillan & Co 1959) p 39

[2] European Communities Act 1972

[3] Human Rights Act 1998

[4] Dicey, cited above at n1 at p39

[5] Dicey, cited above at n1

[6] Thoburn v Sunderland City Council [2002] All ER (D) 223

[7] R v Secretary of State for Transport, ex parte Factortame Ltd and others   [1999] All ER (D) 1173

[8] Dicey, cited above at n1

[9] P.Craig, Britain in the European Union’ in J .Jowell and D.Oliver The changing constitution p 91-99

[10]  Christopher Forsyth,  Of Fig leaves and fairy tales: The Ultra Vires doctrine, the sovereignty of parliament and judicial review (first published 1996) p 122

[11] TEU (treaty of Maastrict 1992) s2

[12]Dicey, cited above at n1

[13] Ghaidan v Godin-Mendoza [2004] UKHL 30 [57]