In this essay the traditional view on parliamentary sovereignty will be discussed and whether it is
increasingly challenged. Firstly, this essay will focus on what the traditional view means. The essay
will then explain whether parliamentary sovereignty is increasingly challenged or not. The essay will
then conclude on if parliamentary sovereignty is being increasingly challenged.
Dicey developed the traditional view of parliamentary sovereignty and he defined it as “Parliament…
has the right to make or unmake any law” and “no person or body is recognised… to override” it.
The Dicyan view has three aspects. The first aspect is that Parliament can legislate on anything it
wishes. The second aspect concludes that parliament cannot bind future parliaments. The third
aspect states that an Act of Parliament cannot be questioned. The Dicyan view is complicated as the
principles are conflicting with each other and therefore creates a paradox. If Parliament had
unlimited power, it would be able to limit its powers but that would mean it is not supreme
anymore.
The case of Jackson raised a challenge to the traditional view . The case concerned whether certain
legislation was primary or secondary because it did not pass the House of Lords but received royal
assent. Therefore, this made it an Act of Parliament. This raised issues on parliamentary sovereignty
because the validity of an Act of Parliament was subject to judicial review. In addition, judicial review
can only be used to question secondary legislation. The traditional view states that nobody or person
can challenge primary legislation. This demonstrates how parliamentary sovereignty was
undermined and how the principles of the traditional view by Dicey were disregarded. The obiter
judgments by Lord Hope and Lord Steyn supported the idea that principles by Dicey are ‘out of
place’ . and are being ‘qualified’ . Thus, supporting the idea that the traditional view by Dicey no
longer has a place in the modern constitution and will be increasingly challenged as a result.
Parliamentary sovereignty was weakened by devolution. Devolution occurred when executive and
legislative powers were transferred to 3 parts of the UK. This means that devolved regions have the
power to legislate on relevant areas. Therefore, it could be argued that devolution gave those 3
parts of the UK a higher legislative authority and this might restrict parliamentary sovereignty. For
example, the Scotland Act 1998 gives the Scottish Parliament the power to legislate on all matters
except reserved matters . The UK still has the power to legislate for Scotland on any matter under
s28(7) Scotland Act . However, the UK is restricted to some extent due to the Sewel convention
which only allows the UK to legislate for Scotland if there was consent from the Scottish Parliament.
This challenged the traditional view because Parliament should have unlimited legislative
competence, but due to devolution, it is restricted to some extent as it must ask for permission to
legislate on devolved matters. On the other hand, devolution could be argued to uphold
parliamentary sovereignty. In the royal commission on the constitution report , it was said that
Parliament could repeal the Devolution Acts if it wished. The report stated that Parliament has full
power and can legislate on all matters it wishes to on. Therefore, it can be argued devolution partly
upholds parliamentary sovereignty and respects the principles developed by Dicey.
Judicial review is the process in which people can challenge public bodies on certain grounds. It
could be argued that judicial review upholds the traditional view by Dicey. The reason for this is that
courts or judges cannot overturn an Act of Parliament. Therefore, this promotes the idea how
Parliament is sovereign and the highest legislative body. Alternatively, the traditional view of
parliamentary sovereignty was undermined by the case of Factortame . This case was a judicial
review case. It was found that if European Union (EU) law conflicts with UK law EU law should prevail
and should be applied instead of national law. This then shows that all EU law limits parliamentary
sovereignty. Additionally, the case of Costa v Enel also confirmed that “the member States have
limited their sovereign rights, and albeit within limited fields, have created a body of law which binds
increasingly challenged. Firstly, this essay will focus on what the traditional view means. The essay
will then explain whether parliamentary sovereignty is increasingly challenged or not. The essay will
then conclude on if parliamentary sovereignty is being increasingly challenged.
Dicey developed the traditional view of parliamentary sovereignty and he defined it as “Parliament…
has the right to make or unmake any law” and “no person or body is recognised… to override” it.
The Dicyan view has three aspects. The first aspect is that Parliament can legislate on anything it
wishes. The second aspect concludes that parliament cannot bind future parliaments. The third
aspect states that an Act of Parliament cannot be questioned. The Dicyan view is complicated as the
principles are conflicting with each other and therefore creates a paradox. If Parliament had
unlimited power, it would be able to limit its powers but that would mean it is not supreme
anymore.
The case of Jackson raised a challenge to the traditional view . The case concerned whether certain
legislation was primary or secondary because it did not pass the House of Lords but received royal
assent. Therefore, this made it an Act of Parliament. This raised issues on parliamentary sovereignty
because the validity of an Act of Parliament was subject to judicial review. In addition, judicial review
can only be used to question secondary legislation. The traditional view states that nobody or person
can challenge primary legislation. This demonstrates how parliamentary sovereignty was
undermined and how the principles of the traditional view by Dicey were disregarded. The obiter
judgments by Lord Hope and Lord Steyn supported the idea that principles by Dicey are ‘out of
place’ . and are being ‘qualified’ . Thus, supporting the idea that the traditional view by Dicey no
longer has a place in the modern constitution and will be increasingly challenged as a result.
Parliamentary sovereignty was weakened by devolution. Devolution occurred when executive and
legislative powers were transferred to 3 parts of the UK. This means that devolved regions have the
power to legislate on relevant areas. Therefore, it could be argued that devolution gave those 3
parts of the UK a higher legislative authority and this might restrict parliamentary sovereignty. For
example, the Scotland Act 1998 gives the Scottish Parliament the power to legislate on all matters
except reserved matters . The UK still has the power to legislate for Scotland on any matter under
s28(7) Scotland Act . However, the UK is restricted to some extent due to the Sewel convention
which only allows the UK to legislate for Scotland if there was consent from the Scottish Parliament.
This challenged the traditional view because Parliament should have unlimited legislative
competence, but due to devolution, it is restricted to some extent as it must ask for permission to
legislate on devolved matters. On the other hand, devolution could be argued to uphold
parliamentary sovereignty. In the royal commission on the constitution report , it was said that
Parliament could repeal the Devolution Acts if it wished. The report stated that Parliament has full
power and can legislate on all matters it wishes to on. Therefore, it can be argued devolution partly
upholds parliamentary sovereignty and respects the principles developed by Dicey.
Judicial review is the process in which people can challenge public bodies on certain grounds. It
could be argued that judicial review upholds the traditional view by Dicey. The reason for this is that
courts or judges cannot overturn an Act of Parliament. Therefore, this promotes the idea how
Parliament is sovereign and the highest legislative body. Alternatively, the traditional view of
parliamentary sovereignty was undermined by the case of Factortame . This case was a judicial
review case. It was found that if European Union (EU) law conflicts with UK law EU law should prevail
and should be applied instead of national law. This then shows that all EU law limits parliamentary
sovereignty. Additionally, the case of Costa v Enel also confirmed that “the member States have
limited their sovereign rights, and albeit within limited fields, have created a body of law which binds
