This is an exctract from the end of an essay im currently writing. It is to do with whether in this day in age the Parliament of the UK is still sovereign...
The problems for Dicecy’s definition come from international law, especially the
EU and European Convention on Human Rights. The EU was well established
when the UK joined. Van Gend en Loos had established that “The Community
constitutes a new legal order of international law for the benefit of which the states
have limited their sovereign rights”, when dealing with direct effect. This means
that the UK could not claim that they were somehow scammed into joining the EU
and having their sovereignty limited without due knowledge. There was no risk of
the UK thinking the EU was similar to the UN being able to choose to get involved
or not at will. This suggests that Parliamentary sovereignty has indeed suffered
a large blow. Parliament could choose to leave at any time but the discussion
should be focused on the current state of affairs rather than hypothetical situations.
The Factortame case is perhaps the most important case when considering
Parliamentary sovereignty in regards to the EU. The case highlighted the supremacy
of EU law over national law where the EU has competence since the ECJ held that
national courts could strike down laws which went against the EU. The House of
Lords in effect struck down Merchant Fishing Act 1988 which would mean that there
is indeed body which can “override or set aside the legislation of Parliament”. Even
if the UK did choose to leave the EU the damage would have already been done,
Parliament would at one stage have had its sovereignty limited. Also, looking at the
facts of the case, it would seem that the notion of the latter act of Parliament taking
priority over the former was in jeopardy. As Wade explains:
“The established rule about conflicting Acts of Parliament, namely that the later Act
must prevail, was evidently violated, since the later Act in this case was the Merchant
Shipping Act 1988, yet it was disapplied under the European Communities Act
Parliament can’t be described as being sovereign if it is limited by previous
Parliaments. Paul Craig takes a different view which Wade calls the construction
view. This view involves assuming that Parliament does not intend to override ECC
law and ECC law will prevail unless another act of Parliament says differently.
This seems to be taking a counterintuitive view of the situation in an attempt to
preserve Parliamentary sovereignty. Judges and academics may be too loyal to
the traditional notion of Parliamentary sovereignty and may attempt to twist various
events in EU thought to protect Parliamentary sovereignty; this could result in an
unnatural twist on events which would otherwise be quite simple to someone who
approaches the situation with a more cold and logical frame of mind. To help show
this, Wade, in paraphrasing Craig says that Craig’s “construction view is more likely
to commend itself to judges because it is based upon the will of Parliament”. Of
course Parliamentary sovereignty is necessary to an extent, without it there would
be confusion as to the hierarchy of law, but it is dangerous to give Parliamentary
sovereignty the status of an eternal objective truth. Parliament can give up a certain
amount of power and still fulfil the important role of providing clarity and structure.
The European Convention on Human Rights has a similar effect on Parliamentary
sovereignty as compared to the EU. Individuals can make appeals to the European
Court of Human Rights and Domestic (Human Rights Act 1998) courts if they feel
that their Human Rights have been breached. In R v Secretary of State for the Home
Department Lord Hoffman made some important points about the current status of
Human Rights in regards to Parliamentary sovereignty.
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate
contrary to fundamental principles of human rights…but the principle of legality
means that Parliament must squarely confront what its doing and accept the political
The reoccurring theme of Parliament being able to do something, but probably not
actually doing it again comes up. This type of argument in favour of Parliamentary
sovereignty is a weak one. For example I could, if I wanted, go outside and murder
someone, or I could take up acting lessons and become a big Hollywood actor. Just
because these things are feasible doesn’t mean I can use them as strong evidence
in an argument for myself becoming a killer or an actor. That is why, as I mentioned
before, it is best to look at the current state of events rather than speculate too much
Overall Parliamentary sovereignty seems to retain its orthodox meaning in regards
to non international matters due to the history of cases decided for Parliamentary
sovereignty. Any issues of devolution or giving power to overseas territories does
not impede on Dicey’s definition. However in regards to the EU and Human rights
Dicey’s definition is violated. Arguments defending Dicey’s definition against the EU
and Human Rights revolve around hypothetical situations which are not able to be
proven for the very simple matter of us not knowing what the future will hold.