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Parliamentary Sovereignty

In the absence of a written constitution, the cornerstone of the constitution is the concept of
parliamentary sovereignty.

A.V.Dicey:

1. Parliament can legislate on any subject matter. (But if it violates an EC

directive/regulation, then it is unlawful to that extent).
2. No parliament can be bound by its predecessor nor bind its successor. (All acts can be
repealed and replaced with new ones. But certain acts, as a matter of tradition remain
sacred)
3. No – body including a court of law can question the validity of an Act of Parliament.

Wade argues:

The rule is above and beyond the reach of statute...because it is itself the source of the
Authority of statute...The rule of judicial obedience is in one sense a rule of common law,
But in another sense – which applies to no other rule of common law – it is the ultimate
Political fact upon which the whole system of legislation hangs. Legislation owes its
Authority to the rule: the rule does not owe its authority to legislation.
(Wade, H.W.R. ‘The basis of legal sovereignty’ (1955) 13 CLJ 172)

Judicial decisions where the courts have confirmed the supremacy of Acts of Parliament:

Madzimbamuto v Lardner-Burke (1969),

Where the Southern Rhodesia Act 1965 was considered following the unilateral declaration of
independence of the white minority government of Southern Rhodesia (now Zimbabwe), the
court held that the Act was still valid and Southern Rhodesia remained a British colony. Lord
Reid stated:

‘It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain
things, meaning that the moral, political and other reasons against doing them are so strong that
most people would regard it as highly improper if Parliament did these things. But that does not
mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any
of them the courts could not hold the Act of Parliament invalid’.
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A.V.Dicey and Parliamentary Supremacy:

1. Parliament can legislate any subject matter:

There is significant difference between what parliament can legally do and what it can do in
practice. For example, if parliament confers independence upon a former colony, in strict legal
theory parliament can also remove that independence. However, a unilaterally unwanted
attempt to regain sovereign power would be ineffective within the newly independent and
sovereign state.

 Similarly, under Dicey’s theory, parliament could pass a law stating that right to own
private property is abolished – this would be legally valid and not subject to invalidation
by the courts. However, as matter of political practice parliament would never pass such
a law.
 The limits under which parliament operates are imposed by the democratic process: the
extra – legal limits.

2. No questioning the validity of an Act of Parliament:

In relation to domestic legislation two rules are dominant:

1. Enrolled bill stage:

Once a bill has passed through requisite parliamentary stages and received the Royal
assent. The courts will not enquire into the manner in which it was passed even if
allegations are made that it was improperly passed.
 Pickin V British Railways Board 1974 AC 765:
In which it was held “once the commons had given its assent to the proposed
exercise of power, the courts would be precluded from examining the
parliamentary process leading up to that assent”.
2. Implied Repeal:
Not only parliament may expressly repeal a previous Act but it may also, by necessary
implication ‘implied repeal’ a previous Act by passing latest legislation which contradicts
the earlier Act. In such a case and consistent with the judicial duty to give effect to the
latest expression of parliament’s intent – the judges will hold the later provision ‘impliedly
repeal’ the former.

Ellen Street Estates, under the doctrine of implied repeal, the later Act is deemed to
impliedly repeal the earlier Act to the extent that the two Acts are incompatible.

The doctrine of implied repeal was considered more widely in Thoburn v Sunderland
City Council (2002), when it was held that the European Communities Act 1972 could
not be impliedly repealed by the Weights and Measures Act 1985. Laws LJ identified a
class of ‘constitutional statutes’ which define fundamental rights. In his opinion a
constitutional statute:
 conditions the legal relationship between citizen and state in some general,
overarching manner, or
 enlarges or diminishes the scope of what we would now regard as fundamental
constitutional rights.
He listed examples of such Acts, including the Magna Carta, the Bill of Rights 1689, the
Acts of Union, the Reform Acts, the European Communities Act 1972, the Scotland Act
1998, the Government of Wales Act 1998 and the HRA. He argued that ‘constitutional
statutes’ can only be repealed expressly and not impliedly:
The court would apply this test: is it shown that the legislature’s actual – not imputed,
constructive or presumed – intention was to affect the repeal or abrogation?
Subsequently, he explained the implications in relation to parliamentary supremacy: It
would not mean the loss of sovereignty. It would merely specify the conditions in which
Parliament could change the constitutional law. And the conditions would be just the
same as those which presently apply if Parliament seeks to change constitutional
principles established by the common law. There are problems with Laws LJ’s
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arguments, not least because they have not yet been approved by the Court of Appeal
or Supreme Court. There is also the difficulty of identifying who decides whether a
particular statute is a constitutional statute – the courts or Parliament?

3. No Parliament can be bound by its predecessor now bind it’s successor:

Parliament attentions should be paid to arguments against parliamentary sovereignty based on

the Act of Union with Scotland 1707 the Act of Union created the new parliament of G.B and in
so doing effectively abolished the formerly sovereign parliaments of England and Scotland.
However, many amendments have been made.

 The argument goes that Act of Parliament which go against the provisions of the
Act of Union an invalid against the provisions of the Act of Union an invalid on the
basis that ACT OF UNION WAS A CONSTITUENT ACT – one prior to and
setting the conditions under which the newly – elected parliament could
legitimately act. The argument then centers around whether or not parliament
can be bound by a predecessor. (Gibson V Lord Advocate 1975 SLT 134)
 Sophisticated academic arguments have been put forward to the effect that
parliament can bind its successors with by redefining itself or setting out ‘manner
and form’ provisions which must be followed.
 Also interesting in this regard is the incorporation of the ECoHR – the
government has specifically preserved the sovereignty of parliament by denying
the judges the power to declare an Act of Parliament invalid, but merely to make
a declaration to the effect that a particular law is contrary to the convention,
thereby leaving it to the parliament to enact the necessary changes.
 The supremacy of parliament is revealed when examining the status of
international law within the UK. The fundamental rule remains that international
law can’t take legal effect within UK law unless and until brought into law by an
Act of the sovereign parliament. For this reason, it was necessary to enact the
ECA 1972 to give effect to community law.
 It should be noted that the EC has since 1960 asserted the supremacy of
community law over the domestic law of any member state:
 Costa V ENEL 1964 CMLR 425
 International Handelsgesellschaft case 1972 CMLR 255
 Among the major English cases revealing the approach adopted by judges:
 Garland V British Rail Engineering 1983 2 AC 751
 Ex p Factortame 1990 2 AC 85
 Ex p Factortame No2. 1991 1 AC 603
 Ex p EOC 1994 Times law report
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Sovereignty within a state

Supreme legal authority / supreme political authority

In Dicey’s view the people hold political sovereignty while legal sovereignty rests with the
parliament. This clear demarcation is explained by the unwritten nature of the UK’s constitution.
In state with written constitutions the constitutions define the limits of government power. In the
UK, by way of contrast, the powers of government, while ultimately dependent upon the
electoral mandate remains unconstrained by any fundamental written document and subject
only to parliament’s approval.

All law-making power thus derives not from the power delimiting constitutional document but
from the sovereignty of the legislature.

Sovereignty and written constitutions:

Chief justice Marshell in Marbury V Madison (1803) explained the power of the constitution:

“All those who have framed written constitution contemplate them as forming the fundamental
and paramount law of the nation and the theory of every such government must be that an Act
of the legislature, repugnant to the constitution is void. It is a proposition too plain to be
contested that the constitution controls any legislature act repugnant to it or that the legislature
may alter the constitution by an ordinary act”.

Source of Sovereignty in the United Kingdom:

The sovereignty of parliament is not itself laid down is statute: nor could it be for the ultimate law
maker can’t confer upon itself the ultimate power.

Sovereignty as a rule of common law:

 It is the fundamental rule of common law, for it is the judge: that uphold parliament’s
sovereignty.
 Sovereignty of parliament will only be lost under two conditions. The first would be where
the parliament decided to abolish its sovereignty and to place its residual authority under
that of a written constitution to be adjudicated upon by the judiciary the second would be
where the judiciary itself underwent a evolution in attitude and accepted that parliament
was no longer the sovereign law making body.
 In the United Kingdom, in the absence of a written constitution which asserts the
sovereignty of the people and sovereignty of the constitution (an interpreted by judiciary)
over the legislature and executive, the vaccum is filled by the doctrine of parliamentary
sovereignty.
 Under this doctrine, political sovereignty rests with the people while the legal sovereignty
rests with the parliament over which no legal controls are exerted but which remains
responsible to the electorate for the continued and the regularly reviewed grant of law
making and executive authority.

History of parliamentary sovereignty:

With the reduction in King’s prerogative powers (to make laws by proclaimation) there came
about the correlative rise in the sovereignty of parliament over the Crown – 1688. From this
time, the prerogative powers of the Crown continued in existence or were abolished or curtailed
as parliament determined.
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A.V Dicey and sovereignty under UK constitution:

Classical definition of sovereignty from a constitutional law perspective:

“Parliament has the right to make or unmake any law whatever; and no person or body if
recognized by the law of England as having a right to override or set-aside the legislation of
parliament”.

Therefore, any Act of Parliament or any part of an Act of Parliament which makes a new law or
repeals or modified an existing law will be obeyed by the courts. ‘there being no person or body
of persons who can, under the English constitution make rules which override or derogate from
an Act of Parliament or which will be enforced by the courts in contravention of an Act of
Parliament”.

Parliaments’ unlimited law making power:

This means that there is no limit on the subject matter on which parliament may legislate.

1. Thus, the parliament may legislate to alter its terms of office. Under the Act 06 1694,
Parliaments’ life was limited to three years. Fearing the effects of an election, the
government introduced and the parliament passed the Septennial Act extending the life
of the parliament to 7 Years. The Septennial Act under a written constitution would’ve
been legally invalid since it meant the conferring of authority on the common to legislate
without the express consent of the electorate: thus usurping the rights of the people.
(Parliament made a legal though unprecedented use of its powers)
2. Similarly, parliament may also legislate to alter the succession to the throne as with the
Act of Settlement 1700 and Declaration of Abdication Act 1936
3. Parliament may ‘abolish’ itself and reconstitute itself as a different body as occurred with
the Union with Scotland 1706.
4. Parliament may also legislate to alter its own powers as with the Parliaments Acts 1911
and 1949, whereby the powers of House of Lords in respect to legislation were curtailed.
5. Parliament may grant independence to dependent states (Nigeria Independence Act
1960) and also that parliament may legislate to limit its own powers in relation to
dependent territories.
6. Parliament may also legislate with retrospective effect, though this goes against the
doctrine of Rule of Law. War Damage Act 1965 – effectively overturned the decision of
House of Lords in Burmah Oil co case. In 1942, British troops had destroyed oil
installations in Rangoon. Burmah Oil sued the government. House of Lords held
compensation was payable of prerogative power in relation to war. The government
immediately introduced into parliament the War Damage Bill to nullify the effect of the
decision.

The most often quoted examples of parliament’s theoretically untrammeled legislative powers
are those offered by Ivor Jennings ‘parliament can legally turn a man into a woman’

Ivor Jenning’s says:

Parliamentary sovereignty means two things. First that parliament can legally enact legislation
dealing with any subject matter whatsoever. There are no limitations except political expedience
and constitutional convention. The Supremacy of Parliament in a legal fiction and legal fiction
can assume anything.

Secondly, parliament can legislate for all persons and all places. If it enacts that smoking in the
streets of Paris if an offence by English law and not by French law and therefore it would be
regarded as an offence only but those who paid attention to English law. The Paris police or
Criminal Courts in Paris wouldn’t be bothered but a Frenchman who smoked in the streets of
Paris Spent a few hours in Bond Street, he might be brought before a court of summary
jurisdiction for having committed an offence against English law”.

This is the distinction between validity and effectiveness.

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Act of Parliament alone are supreme:

1. Resolution:
Of either House of Parliament (e.g decisions of House of Commons) do not have the
force of law and can’t alter the law of the land and thereby affect individual rights.
(Bowles V Bank of England 1913 1ch 57)
2. Proclamations:
Of the Crown, issued under the Royal Prerogative don’t have the force of law. Under the
statute of Proclamations 1539, the King was given wide powers to make law without
Parliaments’ consent. The Act was repealed in 1547 but the Kings continued to legislate.
The case of Proclamations clarified the constitutional position. Firstly, that the King could
not be proclamation create an offence previously unknown to law and secondly that the
King had only such prerogative power as was granted under law.
3. Treaties:
Entered into under the Royal Prerogative can’t alter the law of the land. Treaties can
take affect only under the authority of an Act of Parliament (Blackburn V A.G 1971 2
ALLER 1380)- treaties have no force under domestic law unless its provisions are
incorporated into law by way of statute.

These are only three species which are distinguishable from statutes; and it’s the statue alone
which will be valid provided that the required parliamentary procedures have been followed.

Limits on Parliaments’ power:

The power of imposing laws in dependent upon the instinct of subordination. In a representative
democracy, the proper purpose of the government is to serve the people: law, therefore can’t be
enforced against the will of the governed. Compliance, in the absence of a military or a police
state, depends for the most part on voluntary acquiescence.

No parliament may be bound by its predecessor or bind its successor:

The rationale for this aspect lies in the fact that for a body to be sovereign it must be illimitable.
For a sovereign body to be subordinate to another body would be a logical contradiction:

“Limited sovereignty is, as in the case of parliament as of every other sovereign, a contradiction
in terms.” This is the reason why parliament has failed in its endeavors to enact unchangeable
enactments.” (Dicey)

It follows that each parliament must enjoy the same unlimited power as any parliament before it.
No parliament can therefore enact rules which limit future parliaments.

This argument of Dicey gives rise to most debates.

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The Doctrine of Implied Repeal:

 This doctrine provides the method by which the judges give effect to the rule against
parliament being bound by previous parliaments or being able to bind subsequent
parliaments, and thereby guarantees contemporary sovereignty.
Parliament, may of course, repeal any previous law by expressly declaring that law to be
repealed. The position of judiciary is thus clear; they must give effect to the latest
expression of sovereign will and the judges are not free to apply the earlier statutes.
 But, the position is not always so clear. Parliament may pass a statute (through
inadvertence) which while not expressly repealing an earlier Act is inconsistent with it.
When the judges are thus faced with two apparently conflicting statutes the DOCTRINE
OF IMPLIED REPEAL WILL COME INTO PLAY, the judges applying the latest statute
in time and deeming the earlier provisions to be implied repeal.
Vauxhall estates ltd V Liverpool corporation 1932 1KB 733:
The acquisition of Land Act 1919 and the Housing Act 1925 were inconsistent in respect
to compensation on the compulsory acquisition of land. In this case the plaintiff argued
that 1919 Act was binding on the courts and should be applied in preference to the 1925
Act. If this were to succeed, then the provision of 1919 Act would be ‘entrenched’ (have
a superior legal status to other Acts of Parliament and therefore binding) or a future
parliament.
The court held that the 1925 Act impliedly repealed the conflicting provisions in the 1919
Act.

With the doctrines of express and implied repeal firmly in mind, consideration
must now be given to the special problems allegedly posed for legislative
supremacy by:

 Grants of independence
 Act of Union with Scotland / Ireland
 ‘Manner and Form and redefinition theories’

Grants of independence:

The statute of Westminster 1931 was enacted to give statutory force to the constitutional
convention that the UK parliament wouldn’t legislate for dominions without their consent.
Section 4:

‘No Act of Parliament of the UK passed after the commencement of this Act shall extend, or be
deemed to extend to a dominion as part of the law of that dominion unless it is expressly
declared in the Act that the dominion has requested and consented to the enactment, thereof’.

 Where parliament confers partial competence or a subordinate legislature, the question

arises whether UK parliament can revoke the grant of power. The issue here is the
relationship between the sovereign parliament and a parliament dependent for its
powers upon Westminster.
British coal V King 1935 AC 500:
The judicial committee of the Privy Council had to determine whether or not the
Canadian legislature had the power to regulate or prohibit appeals in criminal matters to
the King in Council. A determination of the matter entailed consideration of the scope of
legislature competence of the Canadian legislature. The relevant Acts were British North
America Act 1867, the Colonial laws Validity Act 1865, the Statute of Westminster Act
1931 and the Canadian Criminal Code which prohibited appeals to the UK Courts. The
Statute of Westminster had removed any legislature incompetence from the Canadian
legislature and accordingly the legislature had full competence to enact the Section in
question.
Privy Council Held: ‘power of imperial parliament, in theory remained unimpaired and ‘as
a matter of abstract law’ Section 4 of the statute of Westminster 1931 could be repealed
by the UK parliament but in practice it could not be ‘legal theory must march alongside
practical reality’.
However, this case is no more than recognition of the extreme or practical limitations on
the exercise of sovereignty, and not of any legal limitations an parliaments’ supremacy.
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 The question of status and the effect of Section 4 of the Statute of Westminster arose
once more in Manuel V A.G 1982 3 ALLER 822. The issue was whether the Canada Act
1982 passed by the UK parliament on the request and consent of Canada was a valid
enactment. It was argued that Section 6 of the Statute of Westminster required not just
the consent of the federal parliament but also that of all the provincial legislatures and
the nature minority population. The application failed: the statute did not require the
actual consent of a dominion but rather the mere recital on the face of the request that
UK legislate for the dominion.

The Acts of Union with Scotland 1706 and Ireland 1800:

The Acts of Union, their status and their effect on parliaments’ sovereignty have provided a
fertile source for academic debate which represents a powerful argument against the unlimited
freedom of any parliament at any time to legislate as it pleases.

The idea being that the Acts of Union have some form of ‘higher law’ status which binds and
limits the powers of Parliament.

The Union with Scotland Act 1706:

With James accession to the throne in 1603, England and Scotland (two separate countries
then) were united under one Monarch but retained their sovereign parliaments until 1706. The
treaty of Union 17006 abolished both the parliaments and effected the birth of the parliament of
Great Britian.

 In Mac Cornick V Lord Advocate:

The sovereignty issue came up to be argued concerning the Act of Union with Scotland
and Lord Cooper, while discussing the Doctrine of sovereignty ruled, ‘the principle of the
unlimited sovereignty of parliament is a distinctively English principle which has no
Scottish counterpart. The union legislation extinguished the two parliaments and
replaced them by a new parliament… I have difficulty in seeing why the new parliament
must inherit all the peculiar characteristics of the English parliament and none of the
Scottish parliament…

‘I have not found in the Union legislation any provision that the parliament of Great
Britain should be absolutely sovereign in the sense that the parliament should be free to
alter the treaty at will’.

The Union with Ireland Act 1800

The Act of Union was declared to last forever. Article 5 provided for the United Church of
England and Ireland “that shall remain in full force forever” – this was to be an essential and
fundamental part of union.

Nevertheless in 1869 the Irish Church Act was disestablished under an Act. In ex p Canon
Selwyn, a clergyman sought an order whether this was ultra vires the Act of Union. The Court
dismissed the petition on the basis that the statute was supreme and couldn’t be questioned in a
court.

 Similarly Act of Union provided for a permanent Union between Ireland and Great
Britian. However the Ireland Act 1949 recognized republican status and independence of
Southern Ireland thereby terminating the union.

A.V.Dicey and the Acts of Union:

Dicey had argued that Acts of Union had no greater legal status than the Dentists Act. Dicey
reviewed both these Acts as ordinary which is evident from his often quoted passage:

‘Though the fact is often overlooked, the parliament both of England and Scotland did, at the
time of Union each transfer sovereign power to a new sovereign body. This parliament, because
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it acquired the full authority of the two legislatures by which it was constituted became in turn a
legally supreme legislature authorized though contrary perhaps to the intention of its creators, to
modify or abrogate the Act of Union by which it was constituted’.

Alternative Interpretations of the Acts of Union

The power of parliament to abolish itself and to be reconstructed as a new parliament is a

matter to which opponents to Diceyan theory address their arguments.

 In Mitchell’s view, the Act of Union of Scotland and England creating the unified
parliament of Great Britain represents ‘a fresh starting point’. In Mitchell’s view, the Act
of Union being antecedent to the parliament of Great Britain imposed valid legislative
changes have been made to the provisions of the Act of Union, Mitchell argues that
certain provisions are essential limitations on parliament’s power.
 Professor Neil Mac Cormik also challenges the Diceyan orthodoxy. In his view the Act of
Union amount to rudimentary written constitutions that they represent ‘the historical first
constitution of United Kingdom and accordingly have a special status in constitutional
law. Similarly De Smith says that Act of Union were constituent Acts.

Parliament Acts 1911 and 1949

In the United Kingdom, there is no written documentary constitution setting out the
procedures for legislating. It is useful, nonetheless, to consider the Parliament Acts 1911
and 1949 under which special procedures can be applied, in specified circumstances
for passing Acts of Parliament without the consent of the House of Lords.

Historical background

The Parliament Act 1911 was passed following a constitutional struggle between the Liberal
government, which controlled the House of Commons, and a Conservative dominated House of
Lords. When the Liberal government was not able to get its social welfare legislation approved
by the House of Lords, the Prime Minister threatened to overturn the Conservative majority in
the House of Lords by creating large numbers of Liberal peers. Eventually, the House of Lords
approved the Parliament Act 1911. The Parliament Act 1949 subsequently shortened the
required period of delay before the procedures for obtaining the royal assent without the
approval of the House of Lords could be used.

Key provisions

Section 1: This provides that ‘money Bills’ (covering taxation and finance) approved by the
House of Commons must, so long as there is at least one month remaining before the end of
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the parliamentary session, be approved without amendment within one month by the House of
Lords.

Section 2: A non-money Public Bill can be approved if the following timescale has
been met:

Parliamentary session 1* House of Commons 2nd Reading

House of Commons approval
House of Lords rejection

Parliamentary session 2* House of Commons approval

Bill is sent for Royal Assent
House of Lords rejection
Bill is sent for Royal Assent

* A parliamentary session usually lasts for one year starting in the spring.

An unusual feature of Acts passed under the Parliament Acts procedures is the ‘enacting
formula’ at the beginning of the Act which states:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the
Commons, in this present Parliament assembled, in accordance with the provisions of the
Parliament Acts 1911 and 1949, and by the authority of the same, as follows.

The significance of this formula was considered by R. Ekins in ‘Acts of Parliament and the
Parliament Acts’ (2007) 123 LQR 91:

Parliament intended the 1911 Act to serve as a decision-making procedure, enabling the
Queen, Lords and Commons to legislate even when the Lords disagreed. If the Act bypassed
the Lords altogether, it would be a delegation of authority...Thus the Lords do participate in
legislative acts pursuant to the Parliament Acts. The authority they share is exercised to enact
legislation and the Lords should understand the resulting Act to be in some sense their Act, in
the same way that the minority in the House understands the vote of the majority to settle how
the House acts.

Besides the Parliament Act 1949, only a few Acts have been passed under the Parliament Acts
procedure. This reflects the normal deference of the House of Lords to the democratic will of
the people as expressed in the voting of the House of Commons, as well as the willingness of
both Houses to compromise. Acts which were passed under these procedures include the
Government of Ireland Act 1914, the War Crimes Act 1991 and the Hunting Act 2004.

In Jackson and others v A-G (2005) the opponents of the Hunting Act 2004, which banned the
hunting of wild animals with dogs, argued that the Parliament Act 1949 was invalid because, as
delegated legislation, it was outside the powers of the Parliament Act 1911. The House of Lords
held that the Parliament Act 1949 was valid Primary legislation (see Ekins above) and was valid
along with the Hunting Act 2004. The fact that only two of the three constituent elements of
Parliament had approved it did not make it delegated legislation

Manner and form and Redefinition theories:

Parliament in the exercise of its sovereign power may specify particular procedures which must
be undertaken in order to enact legislation.

For example, the Northern Ireland Constitution (amendment) Act 1973 provides that six
countries of Northern Ireland shall not cease to be a part of the UK unless the proposed
separation is approved by a majority of the electorate in the referendum. This may be
interpreted to mean either that the parliament has specified the procedure (the manner and
form) for enacting laws or alternatively that the parliament has ‘redefined’ itself for the purpose
of enacting laws by including in the definition of parliament, the electorate of Northern Ireland.
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Any provision relating solely to procedure but not affecting the composition of parliament may
be termed a ‘manner and form’ provision whereas, when the actual composition of parliament is
altered the appropriate term, the appropriate term is ‘redefinition’. The Northern Ireland
Amendment Act straddles both theories.

 The question being whether such provisions, howsoever labeled, are capable of binding
a future parliament.
 Australia:
A seminal case illustrating manner and form theory is A.G NSW V Trethowan
1932 AC 526. An Act of Parliament was passed in 1929 amending the
constitution Act of 1902 providing that any Bill purporting to abolish the upper
house must have the approval of both legislative chambers and a 2/3 majority of
members of each chamber supporting the Bill, furthermore, there was to be a
referendum for the abolition to repeal the 1929 Act must follow the same
procedure (Double entrenchment). In 1930, in Australia the in-coming
government decided to abolish the upper chamber and do so by ignoring the
provisions of 1929 Act.
The High Court of Australia and subsequently the Privy Council ruled that Royal
Assent could not be given to such a bill.
Reason being that parliament in NSW was a legislative body having subordinate
and not supreme power such powers drawn from 1865 Act. And also Section 5 of
the Colonial laws validity Act 1865 “every representative legislature shall have full
power to make laws… provided that such laws shall have been passed in such
manner and form as may from time to time be required by any Act of Parliament
for the time being in force”.
It is this Section which dictated the decision in this case. The government of
NSW was not free to introduce the 1931 bill other than in conformity with the
requirements of Section 5. The specific manner and form provisions were set out
in 1929 Constitution Act and these requirements could not be merely ignored by
the subordinate legislature.
 In the case of Bribery Commission V Ramasinghe 1965 AC 172:
Section 55 of the 1946 Constitution of Ceylon required that appointment and dismissal of
judicial officers be vested in a judicial services commission. Section 29(4) of the
constitution required that amendments to the constitution should be passed by a 2/3rd
majority. In 1954 a bribery Act was passed which gave the power to A.G to prosecute
allegations of bribery. In 1958 a bribery tribunal was established headed by a bribery
commissioner – no certificate was produced.
THE CENTERAL ISSUE WAS WHETHER OR NOT THE LEGISLATUREE WAS FREE
TO AVOID PROVISIONS OF THE CONSTITUTION. The Supreme Court held that it
could not.
‘Once it is shown that an Act conflicts with a provision in the constitution, the certificate
of 2/3rd majority is an essential part of the legislative process where the certificate is not
apparent, there is lacking an essential part of the process necessary for amendment’.

The above vases demonstrate one fundamental principle: that legislative bodies don’t
necessarily enjoy full sovereign power and that some form of ‘higher law’ may control their
powers. In each of the cases, the powers of the legislature of NSW/Ceylon had been
established under the Act of the sovereign UK parliament and each of the legislative bodies had
to comply with the constitutional law in force.

No one may question the validity of Act of Parliament:

Blackstone says ‘true it is that what the parliament doth, no authority on eat can undo’.

An act will be accepted as valid by the court provided that it has passed through the requisite
legislative stages and received the Royal Assent.

Regardless of the subject matter of the Act it will be upheld by the Judges.
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In the time before the 1685 Act of Settlement, it was not uncommon for judges to proclaim that
an Act of Parliament could be held to be invalid because it conflicted with higher form of divine
law.

However, such views have no authority today.

 The opinion of Lord Reid in Pickin v British Railway Board 1974 AC 765 expresses the
correct position:
“In early times many lawyers believed that an Act of Parliament could be disregarded in
so far as it was contrary to the law of God or natural justice but since the supremacy of
Parliament was finally demonstrated by the revolution of 1688 any such idea has
become obsolete.

Non-legal constraints on Parliament Powers:

Political acceptability to the electorate represents the strongest external basis of restraint. All
governments are accountable to the electorate periodically. But elections don’t of themselves
always provide the means of sanctioning governments whereas the power of the electorate is
great at the time of a general election, it is a more limited power during a government’s term of
office mostly when the government has a strong majority in parliament. Therefore, it is the task
of both (Lords and Commons) to scrutinize government policy and legislative proposals and
therefore a range of procedural devices exist which facilitate such inquiry.

No government can afford to ignore the parliament and at the end of the day a government can
be brought down if its policies are such that it loses the confidence of the House as a whole.

 Similarly United Kingdom is bound by International treaties that safeguard Human

Rights, environmental, trade and tariffs etc. UK is also bound in practical terms by
membership of European Community.
In theoretical terms, parliament may remain free to enact laws violation any or all of UK’s
international obligations: in practice it would not.

Academic Arguments against traditional doctrine of sovereignty:

 In Bribery Commission V Ramasinghe:

Lord Pearce had asserted ‘the proposition which is not acceptable is that a legislature,
once established, has some inherent power derived from the mere fact of
establishment to make a valid law by the resolution of a base majority which its own
constituent instrument has said shall not be a valid law unless made by a different type
of majority or by a different legislative process”.
 Geoffrey Marshall seizes upon this dictum and argues that Lord Pearce “seemed to
imply equally that both sovereign and non-sovereign legislatures may be made subject
to procedural rules entrenching parts of the law from simple majority repeal”.
Marshall concludes: it helps to confirm that existing English authority does not rule out
the possibility that the Queen in Parliament might legislate so as to provide a special
manner and form for specified types of legislation.
Mitchell, arguing from the proposition that parliament may redefine itself – as in the
Parliament Act 1911 reduced the powers of the House of Lords with respect to
legislation and may alter its own composition as in the Life Peerages Act 1958, turns to
the purported self limitations of parliament. He cites Section 4 of the Statute of
Westminster 1931 and says that indeed the imperial parliament could, as a matter of
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abstract law, repeal a disregard Section 4 of the Statute. But that is theory and has no
relation to realities since the parliament has redefined itself in a manner which excludes
its power to legislate for the dominion.
 Lord Radcliff’s dictum in the Queen Case 1964 AC 900 bonds evidence to this view
“while the UK parliament has the legal power to legislate for Ceylon, to use such power
would be wholly inconsistent with the powers of legislation conferred on the legislature of
Ceylon”.

But how such claims should be evaluated, for Dicey was clear that the UK parliament in the
exercise of its sovereign power has the power to abolish itself or to surrender its sovereignty
in favour of another legislature as in the grants of independence.

More troublesome is the question whether the parliament retains the capacity
to revoke such grants of freedom in legal terms? Dicey was very clear on this:
“limited sovereignty is a contradiction in terms”.

The central distinguishing feature between the jurisdictions concerned in the ‘manner and
form cases and the United Kingdom lies in the existence of a higher legislative authority. In
each case it was the UK parliament which defined and limited the powers of a subordinate
legislative body.

Only once a parliament enjoys full sovereignty can it be free of such constraints. The UK
parliament, by contrast, is uncontrolled: there exists no higher source of legal authority than
parliament itself. For this reason, no analogy can be drawn between NSW legislature and
the UK parliament.

Parliamentary Sovereignty and the European Community:

The impact of the European community on the doctrine of parliamentary

sovereignty:

The UK became a member of the EC in 1972 (Van Genden loos case). The Court of Justice
has the 1960’s asserted the supremacy of community law over the laws of any member
state (Simmenthal Case). ECJ has adopted the view that by becoming signatures to the
treaties, member states have limited their own legislative competence in community matters,
conferring the supreme power to legislate on these matters on the law making institutions of
the community (Costa V ENEL).

The laws enacted by the Commission, Council, European parliament together with the ECJ
decisions are binding on all member states.

In the UK, the acceptance of community law is under the ECA 1972: an Act of the UK
Parliament. Accordingly, all community law derives its force and authority under this Act,
which, as with any Act has no special legal status within the constitution.

However, membership of the community raises some unique questions for the sovereignty
of parliament.
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The principal issue for consideration is the attitude of judges (domestic) towards community
law. The issues which require explanation are:

 The extent to which the judges are prepared to accept and apply community law.
 How parliamentary Acts are reconciled with the requirements of community law.
 Whether membership of community entails an irrevocable relinquishment of
parliamentary sovereignty.

Application of Community law:

Section 2 of the ECA 1972 speaks about direct applicability of community law in UK.

Section 2(4) provides for the primacy of community law: it operates as a rule of construction
to the courts to interpret law in accordance with the requirements of community law.

Parliamentary Sovereignty

 The concept of parliamentary sovereignty is the cornerstone of

constitution, when there is no written constitution.

A.V Dicey:

 Parliament can legislate on any subject matter. (But if it violates an EC

directive/regulation, then it is unlawful to that extent).
 No parliament can be bound by its predecessor nor bind its successor. (All
acts can be repealed and replaced with new ones. But certain acts, as a
matter of tradition remain sacred)
 No – body including a court of law can question the validity of an Act of
Parliament.

Wade argues:
 The rule is above and beyond the reach of statute...because it is itself the source of the
Authority of statute...The rule of judicial obedience is in one sense a rule of common
law, but in another sense – which applies to no other rule of common law – it is the
ultimate Political fact upon which the whole system of legislation hangs. Legislation
owes its Authority to the rule: the rule does not owe its authority to legislation (Wade,
H.W.R. ‘The basis of legal sovereignty’ (1955) 13 CLJ 172).
 Madzimbamuto v Lardner-Burke (1969),
Lord Reid stated:
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 ‘It is often said that it would be unconstitutional for the United

Kingdom Parliament to do certain things, meaning that the moral,
political and other reasons against doing them are so strong that
most people would regard it as highly improper if Parliament did
these things. But that does not mean that it is beyond the power of
Parliament to do such things. If Parliament chose to do any of them
the courts could not hold the Act of Parliament invalid.’
Criticism on Dicey’s theory on Parliamentary Sovereignty:
 As Dicey said that ‘Parliament can legislate on any subject matter’ but
there is a huge difference in what parliament can legally do and what
it can do in practice.
 Enrolled bill stage:
 The courts will not enquire, once a bill has passed through
requisite parliamentary stages and received the Royal assent,
into the manner in which it was passed even if allegations are
made that it was improperly passed.
 Pickin V British Railways Board 1974 AC 765:
 In which it was held “once the commons had given its assent to
the proposed exercise of power, the courts would be precluded
from examining the parliamentary process leading up to that
assent”.
 Implied Repeal:
 The parliament cannot only expressly repeal an Act but it can also
Impliedly repeal Act by passing latest legislation which contradicts
the earlier Act. In such a case and consistent with the judicial duty to
give effect to the latest expression of parliament’s intent – the judges
will hold the later provision ‘impliedly repeal’ the former.
Chief justice Marshell in Marbury V Madison (1803) explained the power of the
constitution:

 “All those who have framed written constitution contemplate them as

forming the fundamental and paramount law of the nation and the theory of
every such government must be that an Act of the legislature, repugnant to
the constitution is void. It is a proposition too plain to be contested that the
constitution controls any legislature act repugnant to it or that the
legislature may alter the constitution by an ordinary act.”
Ivor Jenning’s says:
 Parliamentary sovereignty means two things. First that parliament can
legally enact legislation dealing with any subject matter whatsoever. There
are no limitations except political expedience and constitutional convention.
The Supremacy of Parliament in a legal fiction and legal fiction can assume
anything.
 Secondly, parliament can legislate for all persons and all places. If it enacts
that smoking in the streets of Paris if an offence by English law and not by
French law and therefore it would be regarded as an offence only but those
who paid attention to English law. The Paris police or Criminal Courts in
Paris wouldn’t be bothered but a Frenchman who smoked in the streets of
 16

Paris Spent a few hours in Bond Street, he might be brought before a court
of summary jurisdiction for having committed an offence against English
law”.
 This is the distinction between validity and effectiveness.

Grants of independence:

The statute of Westminster 1931 was enacted to give statutory force to the
constitutional convention that the UK parliament wouldn’t legislate for dominions
without their consent. Section 4:

 ‘No Act of Parliament of the UK passed after the commencement of this Act
shall extend, or be deemed to extend to a dominion as part of the law of that
dominion unless it is expressly declared in the Act that the dominion has
requested and consented to the enactment, thereof.’

A.V.Dicey and the Acts of Union:

 Dicey had argued that Acts of Union had no greater legal status than the
Dentists Act. Dicey reviewed both these Acts as ordinary which is evident
from his quoted passage:
 ‘Though the fact is often overlooked, the parliament both of England and
Scotland did, at the time of Union each transfer sovereign power to a new
sovereign body. This parliament, because it acquired the full authority of the
two legislatures by which it was constituted became in turn a legally
supreme legislature authorized though contrary perhaps to the intention of
its creators, to modify or abrogate the Act of Union by which it was
constituted.’

Alternative Interpretations of the Acts of Union

The power of parliament to abolish itself and to be reconstructed as a new

parliament is a matter to which opponents to Diceyan theory address their
arguments.

 In Mitchell’s view, the Act of Union of Scotland and England creating the
unified parliament of Great Britain represents ‘a fresh starting point’. In
Mitchell’s view, the Act of Union being antecedent to the parliament of
Great Britain imposed valid legislative changes have been made to the
provisions of the Act of Union, Mitchell argues that certain provisions are
essential limitations on parliament’s power.
 Professor Neil Mac Cormik also challenges the Diceyan orthodoxy. In his
view the Act of Union amount to rudimentary written constitutions that they
represent ‘the historical first constitution of United Kingdom and
accordingly have a special status in constitutional law. Similarly, De Smith
says that Act of Union were constituent Acts.

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