University of Manchester 10908819
LAWS10100 Final Exam 10100
Question #2:
“The principle of Parliamentary Sovereignty means neither more nor less than this:
namely, that Parliament thus defined has, under the English Constitution, 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 a right to override or set aside the legislation of Parliament”
(A.V. Dicey, 1885).
Critically discuss the extent to which this remains an accurate statement. (1,494 words)
Introduction
This essay will discuss the nature of Parliamentary Sovereignty and whether Dicey’s
definition of it remains accurate. Dicey refers to Parliamentary Sovereignty as Parliament’s
right to make or unmake any laws and no person or institution can override their legislation.
Unlike most nations, the UK does not have a written or codified constitution. Hence, there is
no higher law that states who can make laws. Due to a lack of written constitution, the UK
parliament is the highest source of law. This concept was historically established because of
the lack of a written constitution. According to Elliott and Thomas, Parliamentary Sovereignty
was politically formed after the Glorious Revolution with an agreement between the monarchy,
Parliament and the courts in which the Bill of Rights 1689, Article 1 stated that “the pretended
power of suspending of laws, or the execution of laws by regal authority without consent of
Parliament is illegal”.
This complex topic has many views and is important as it analyses the legal basis of the
UK. Therefore, this essay will be discussing the principles of Parliamentary Sovereignty and
its development including EU membership, the two models of entrenchment, and if Dicey’s
definition remains accurate.
Principles of Parliamentary Sovereignty
Firstly, Parliamentary Sovereignty is accepted by the courts, this is evident in the case
of Madzimbamuto v Lardner-Burke [1969] 1 AC 645 where Lord Reid evaluated that even if
Parliament were to enact a legislation that is deemed as unethical or politically immoral it’s not
considered ‘unconstitutional’ as Parliament has the power to make any laws and the courts role
is to interpret it not declare their validity.
This leads to the second concept of Parliamentary Sovereignty and International Law.
It is important to highlight that Parliament is not limited by international law, it is non-binding
and is persuasive unless the international law system is incorporated into the domestic system
, University of Manchester 10908819
LAWS10100 Final Exam 10100
by an Act of Parliament. This is evident in the legislation of the Terrorism Act of 2006 when
detention without trial was even considered although it was against the ECHR and was even
deemed unconstitutional.
The next principle discusses how if an Act is partially or completely inconsistent with
a subsequent Act, then the previous Act is repealed either through an express or implied repeal.
An express repeal states which parts of the previous Act to repeal while an implied repeal is
when the courts automatically follow the most recent Act. The courts will always follow the
most recent Act; this relates to the concept that Parliament cannot bind its successors.
Parliament has no limits within the legal realm, only limitations within the political
realm. This is because legislators want to be re-elected, they appeal to the population’s wants
and needs to satisfy and attract them. But legally, Parliament remains limitless as there is no
legislation or body that limits their power.
The UK joined the European Union in 1973 and up until Brexit, the membership had
challenged Parliamentary Supremacy. This was because EU law was supreme to national law
and if an Act of Parliament was inconsistent with EU law, the courts would prioritise EU law.
Yet the UK was always free to leave the EU and the courts prioritised EU law because it was
required by Parliament. This is evident in the case of Thoburn v Sunderland City Council CC
[2002] 1 CMLR 50, in which The Weights and Measures Act 1985 s.1 had not impliedly
repealed the European Communities Act 1972 s.2(2). Although it was a more recent Act of
Parliament that contradicted the EC Act, it could not impliedly repeal it. Therefore, there was
priority to EU law above an Act of Parliament which restricted Parliament’s supremacy. Due
to Brexit, the UK is not required to give primacy to EU Law. Therefore, Parliament is no longer
restricted and has complete supremacy over law making.
Model I- The Orthodox View
Parliamentary Sovereignty can be measured in relation to entrenchment. There are no
restraints on Parliament as there is no written constitution stating if it is acting accordingly or
not. Could Parliament entrench legislation and impose regulations on itself? According to
Wade, entrenchment is not possible since the courts give way to the most recent legislation
unless there is an express or implied repeal. Otherwise, the courts will always follow the newer
acts; there is no entrenchment.
Thus, there is continuing sovereignty because if Parliament were to entrench legislation
then Parliament would not be sovereign in the future. Parliament would not want to counter
itself by restricting its supremacy. Since Parliament is not restricted legally, it is restricted
LAWS10100 Final Exam 10100
Question #2:
“The principle of Parliamentary Sovereignty means neither more nor less than this:
namely, that Parliament thus defined has, under the English Constitution, 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 a right to override or set aside the legislation of Parliament”
(A.V. Dicey, 1885).
Critically discuss the extent to which this remains an accurate statement. (1,494 words)
Introduction
This essay will discuss the nature of Parliamentary Sovereignty and whether Dicey’s
definition of it remains accurate. Dicey refers to Parliamentary Sovereignty as Parliament’s
right to make or unmake any laws and no person or institution can override their legislation.
Unlike most nations, the UK does not have a written or codified constitution. Hence, there is
no higher law that states who can make laws. Due to a lack of written constitution, the UK
parliament is the highest source of law. This concept was historically established because of
the lack of a written constitution. According to Elliott and Thomas, Parliamentary Sovereignty
was politically formed after the Glorious Revolution with an agreement between the monarchy,
Parliament and the courts in which the Bill of Rights 1689, Article 1 stated that “the pretended
power of suspending of laws, or the execution of laws by regal authority without consent of
Parliament is illegal”.
This complex topic has many views and is important as it analyses the legal basis of the
UK. Therefore, this essay will be discussing the principles of Parliamentary Sovereignty and
its development including EU membership, the two models of entrenchment, and if Dicey’s
definition remains accurate.
Principles of Parliamentary Sovereignty
Firstly, Parliamentary Sovereignty is accepted by the courts, this is evident in the case
of Madzimbamuto v Lardner-Burke [1969] 1 AC 645 where Lord Reid evaluated that even if
Parliament were to enact a legislation that is deemed as unethical or politically immoral it’s not
considered ‘unconstitutional’ as Parliament has the power to make any laws and the courts role
is to interpret it not declare their validity.
This leads to the second concept of Parliamentary Sovereignty and International Law.
It is important to highlight that Parliament is not limited by international law, it is non-binding
and is persuasive unless the international law system is incorporated into the domestic system
, University of Manchester 10908819
LAWS10100 Final Exam 10100
by an Act of Parliament. This is evident in the legislation of the Terrorism Act of 2006 when
detention without trial was even considered although it was against the ECHR and was even
deemed unconstitutional.
The next principle discusses how if an Act is partially or completely inconsistent with
a subsequent Act, then the previous Act is repealed either through an express or implied repeal.
An express repeal states which parts of the previous Act to repeal while an implied repeal is
when the courts automatically follow the most recent Act. The courts will always follow the
most recent Act; this relates to the concept that Parliament cannot bind its successors.
Parliament has no limits within the legal realm, only limitations within the political
realm. This is because legislators want to be re-elected, they appeal to the population’s wants
and needs to satisfy and attract them. But legally, Parliament remains limitless as there is no
legislation or body that limits their power.
The UK joined the European Union in 1973 and up until Brexit, the membership had
challenged Parliamentary Supremacy. This was because EU law was supreme to national law
and if an Act of Parliament was inconsistent with EU law, the courts would prioritise EU law.
Yet the UK was always free to leave the EU and the courts prioritised EU law because it was
required by Parliament. This is evident in the case of Thoburn v Sunderland City Council CC
[2002] 1 CMLR 50, in which The Weights and Measures Act 1985 s.1 had not impliedly
repealed the European Communities Act 1972 s.2(2). Although it was a more recent Act of
Parliament that contradicted the EC Act, it could not impliedly repeal it. Therefore, there was
priority to EU law above an Act of Parliament which restricted Parliament’s supremacy. Due
to Brexit, the UK is not required to give primacy to EU Law. Therefore, Parliament is no longer
restricted and has complete supremacy over law making.
Model I- The Orthodox View
Parliamentary Sovereignty can be measured in relation to entrenchment. There are no
restraints on Parliament as there is no written constitution stating if it is acting accordingly or
not. Could Parliament entrench legislation and impose regulations on itself? According to
Wade, entrenchment is not possible since the courts give way to the most recent legislation
unless there is an express or implied repeal. Otherwise, the courts will always follow the newer
acts; there is no entrenchment.
Thus, there is continuing sovereignty because if Parliament were to entrench legislation
then Parliament would not be sovereign in the future. Parliament would not want to counter
itself by restricting its supremacy. Since Parliament is not restricted legally, it is restricted
