Dicey's parliamentary sovereignty doctrine in post-9/11 Britain

Exec

Constitutionalism

As we will see in our presentation, part of the realities of the British political system is a regime of an unwritten constitution where parliamentary supremacy and pressure from the general populace will ideally balance each other out. However, this is not always the case. In the midst of the war on terror, more power has went to executive figures and seemingly much power has been lost by the parliament. Ever since the terrorist attacks in the UK on July 7, 2005, more surveillance powers have come into the hands of the state. This has brought many civil libertarians to voice concern that Parliament is not protecting traditional individual rights. In addition, the increasing influence of Brussels and the EU is changing the balance of political power constitutionally by bringing in the continental system of that body increasingly into the realm of British constitutional law. In this way, the balance of power is changing and sometimes overturning existing, unwritten English constitutional law.

Dicey Doctrine -- a Democratic Foundational View

Can we say that Dicey's view of Parliamentary Sovereignty still correct in the UK in 2005 after the events of July 7, 2005? Parliamentary sovereignty refers to the absence of any legal constraint upon the legislative power of the United Kingdom Parliament. The definition was given by Albert Venn Dicey in his classic work on the British Constitution: "The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined (Queen, Lords, Commons) 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 a right to overrule or set aside the legislation of Parliament (Dicey 1893 p. 38)." In this way, Dicey describes the key feature of a government such as Britain which has a flexible or unwritten constitution (Parpworth 2010, p. 7).

However, this view is not universal. On the other side of the power coin, the absence of legal restraints upon serves three purposes: 1) the positive precept that Parliament can legislate upon any subject matter whatsoever, 2) the negative precept that once the Parliament has legislated, then no court or any other body can deny the legal validity of that legislation, 3) no individual Parliament should be bound by predecessors or bind its successors. These doctrines are based upon the case law promulgated by CJ Cockburn in ex-parte Canon Selwyn 1872 when he stated "There is no judicial body in the country by which the validity of an Act of (Pollard, Parpworth and Hughes 2007, p. 55).."

In contrast to this Dicey maintains that sovereignty is limited by "popular resistance (Dicey 1893 p. 257)." According to Dicey, the purpose of the government is to serve the people. Since we elect them, Parliament's power is meant to be limited. Therefore, while parliament may be powerful, it does not mean that parliament has absolute power to legislate / However, it does possess intrinsic and extrinsic limits on its powers. For instance, the courts cannot tamper with the mode in which an Act of Parliament was introduced. Once it has passed and is on the Parliamentary Roll, the bill cannot be challenged by the courts as seen in the case law from Edinburgh & Dalkeith Railway Co v Wauchope 1842 (Carrow and Oliver 1846, 236). The Courts asserted the principle of Parliamentary Sovereignty in the case but were unwilling to interfere, as they have no power to declare an Act of Parliament unconstitutional. In Pickin v British Railways Board 1974 "The Queen in Parliament is competent, according to United Kingdom law, to make or unmake any law whatsoever; and no United Kingdom court is competent to question the validity of an Act of Parliament (Chen, Fu, & Gai 2000 p.79)."

As Alder points out, this is a key difference between the British system and the U.S. system of government in the separation of powers arrangement where the courts are empowered to overturn laws on constitutional issues (Alder 2011, p. 6)..

Conclusion-

As we noted, the present constitutional regime is much more complicated than it was before. The external limits that exist between the UK and the continent are many and consist of basic differences between London and Brussels. As a process of the integration of the two systems, the old system of checks and balances in the old British system are being changed by the continental system. The external limits also affect internal limits. As noted above, the British courts do not overturn laws of Parliament by their rulings. On the continent in EU law, courts can and do overturn state laws. Those rulings are binding upon all of the EU states. Even the Human Rights Act of 1998 which is supposed to uphold the European Convention on Human Rights does not challenge the power of Parliament. As we saw above, this is not just an issue in the arena of human rights, but also in matters as mundane as transactions in business. Herein lies a major element of contention and integration of the continental and UK legal systems and in no doubt will need major adjustment if this integration is to be successfully completed.