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PARLIAMENTARY Law 102 / Law 213 Public Law

Dr Tom Webb
SOVEREIGNTY November 2023
AIMS AND OBJECTIVES

01 02 03 04
Consider how to Explore the origins Examine Dicey’s Have regard to the
define the elements of parliamentary approach to complexities and
of parliamentary sovereignty parliamentary problems associated
sovereignty sovereignty in detail with the doctrine of
parliamentary
sovereignty
REQUIRED
READING
Doherty & McGuirk, Public Law (Routledge, 2022,
3e), Access via Library, Chs. 7-8
OR
Stanton & Prescott, Public Law (OUP, 2022, 3e),
Access via Library; Chs. 4-5
 What is Parliament?

PART 1: DEFINITIONS What is Sovereignty?

Sovereignty vs Supremacy
AV Dicey’s definition
PART 1: WHAT WILL WE
CONSIDER?
 What is Parliament?
 What is sovereignty?
 What is the difference between sovereignty
and supremacy.
 Continuing vs Self-Embracing sovereignty

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WHAT IS
PARLIAMENT?
Commons + Lords + King in Parliament
Dicey Introduction to the Study of the Law of
the Constitution (1885) This Photo by Unknown Author is licensed under CC BY-NC-ND

‘Parliament means, in the mouth of a lawyer ...

the King, the House of Lords, and the House of
Commons: these three bodies acting together
may be aptly described as the "King in
Parliament”, and constitute Parliament.’

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 “Sovereignty is the main organizational
principle on which modern political
systems are founded. Sovereignty
comes about when [i] a group of people
within [ii] a defined territory are
moulded into an orderly cohesion by
[iii] the establishment of a governing
authority which is able to exercise
absolute political power within that
community.”

WHAT IS Martin Loughlin, Sword and Scales

SOVEREIGNTY? (2000)

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SOVEREIGNTY VS
SUPREMACY
We should bear this distinction in mind as we talk about the concept
of parliamentary sovereignty. Which do we mean?

‘Discussion of the legislative supremacy of Parliament must begin with the

distinction between the concept of supremacy and sovereignty. The word
‘supremacy’ connotes a body which is hierarchically above all others or which has
an authority greater than that of its rivals. ‘Sovereignty’, on the other hand,
suggests omnipotent, the ability to do anything.’
David Feldman, English Public Law (2009) 2.141, p.127
WHAT TYPE OF SOVEREIGNTY (OR
SUPREMACY) ARE WE TALKING ABOUT?
POLITICAL AND LEGAL SOVEREIGNTY
a. Political sovereignty
i. The ‘people’, ‘the constituent power’, the ‘populus’, the ‘polity’, the ‘citizenry’
ii. An agreement struck between the sovereign and the people to exercise power:
think Jean-Jacques Rousseau, The Social Contract (1762) Thomas Hobbes, The
Leviathan (1651) John Locke, Two Treatises on Government (1689)

b. Legal sovereignty
i. The power to determine what counts as a law, and from there the power to
make laws, and provide consequences for their breach.
ii. John Austin, The Province of Jurisprudence Determined (1832); HLA Hart, The
Concept of Law (1961); Hans Kelsen, The Pure Theory of Law (1967)
WHAT IS
PARLIAMENTARY
SOVEREIGNTY?
The classic answer to this question is that given by
AV Dicey.
“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.”
Introduction to the Study of
the Law of the Constitution (1885)

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CONTINUING VS SELF-
EMBRACING SOVEREIGNTY
Alison L Young, ‘Sovereignty: Demise, afterlife, or partial resurrection?’ (2011) 9(1) I-CON
163
“If Parliament cannot bind its successors, then Parliament is sovereign in a continuing sense.
If Parliament can bind its successors, then Parliament is sovereign in a self-embracing
sense.” 166
“Continuing and self-embracing theories of sovereignty do not reach different conclusions
as to whether parliament can be bound, but rather … as to who is able to bind parliament.
This is because the theories reach different conclusions as to which institution(s) can modify
constitutive rules – i.e. rules about how Parliament is constituted, rules of continuity that
govern the transfer of power from one parliament to the next, rules determining how
legislation is validly enacted, and rules about how such rules can change.” 167-168
“If Parliament is sovereign in a self-embracing sense, then Parliament has the power to
modify these constitutive rules.” 168
“… if the Parliament possesses continuing sovereignty, then it does not have the power to
modify constitutive rules” 168
 Where did the idea of
PART 2: ORIGINS parliamentary
sovereignty come from?

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PART 2: WHAT WILL WE
CONSIDER?
 Dr Bonham’s Case (1609) 77 ER 646
 The Case of Proclamations (1611) 12 Co Rep 74
 Coke’s Institutes (1628-1644)
 The Civil War and Glorious Revolution (1642-
1651)
 The Bill of Rights 1688/89
 The Act of Settlement 1700/011
 Blackstone’s Commentaries (1753)
 Stockdale v Hansard (1839) 9 A&E 1, 112 E.R.
1112
 Edinburgh & Dalkeith Railway v Wauchop
(1842) 8 Cl & Fin 710
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 Case context
The Royal College of Physicians had a regulatory function.
Could impose penalties (fines, imprisonment), did so upon Dr
Bonham.
Coke CJ’s judgment
RE DR Concerns about bias / perverse incentives for College

BONHAM’S Had HVIII (and later, Mary I) been told of this, they would not
have assented to the law
CASE In such circumstances…

(1608) 8 CO [T]he common law will controul Acts of Parliament, and

sometimes adjudge them to be utterly void: for when an Act
REP 107A of Parliament is against common right and reason, or
repugnant, or impossible to be performed, the common law
(1609) 8 CO will controul it, and adjudge such Act to be void (Co Rep
118a)
REP 113B Significance here?
Suggestion of limits to Parliament’s sovereignty based on
constitutional principle
Pre Civil War / Glorious Revolution
Essential Cases note at this link.
 Case context
Reign of James I (father of Charles I)
Limiting house construction in London to ensure food
available
THE CASE OF King attempted to make a law by Royal Proclamation
PROCLAMATIO Coke CJ’s judgment
NS ‘… the King cannot change any part of the common law,
nor create any offence by his proclamation which was
[1610] 77 ER not an offence before, without Parliament’ (1353/75)
1352 ‘… the King by his proclamation cannot … alter the law of
the land’ (1354/76)
(1611) 12 CO Significance here?
REP 74 Already (pre-Civil War/Glorious Revolution)
Parliamentary law is already the vehicle for expressing
legal sovereignty.

Essential Cases note at this link.

COKE’S INSTITUTES OF
THE LAWS OF ENGLAND
(1644)
‘There is no Act of Parliament but must have the consent of
the Lords, the Commons, and the Royall assent of the King,
and as it appeareth by Records and our Books whatsoever
passeth in Parliament by this threefold consent, hath the
force of an Act of Parliament.’, p.378
‘Of the power and jurisdiction of the Parliament for makings of
laws in proceeding by Bill, it is so transcendent and absolute,
as it cannot be confined either for causes or persons within
any bounds. Of this court it is truly said: Si antiquitatem
spectes, est vetustissima, si dignitatem, est honoratissima, si
jurisdictionem, est capacissima.’ p.391

[Translation: ‘if you consider its antiquity, it is most ancient; if

its dignity, it is most honourable; if its jurisdiction, it is the
most extensive.’]
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 The Civil Wars (1642-1651)
The Glorious Revolution (1688-1689)
CIVIL WAR /  The Bill of Rights 1688/89, e.g.
GLORIOUS  Art. 9 protects Parliamentary Privilege
 The Act of Settlement 1701
REVOLUTION  Establishing dominance over the Crown by
RE-CAP control of the order of succession
 Power to dismiss judges from office rests with
Parliament

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BLACKSTONE’S
COMMENTARIES (1)
Speaking of Coke, Blackstone writes…

‘The power and jurisdiction of parliament, says Sir

Edward Coke, is so transcendent and absolute, that
it cannot be confined, either for causes or persons,
within any bounds.’
Commentaries on the Laws of England (1753) p.160

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BLACKSTONE’S
COMMENTARIES (2)
Speaking of Parliament, Blackstone writes…
 ‘It hath sovereign and uncontrollable authority in the
making, confirming, enlarging, restraining, abrogating,
repealing, reviving, and expounding of laws, concerning
all matters of all possible denominations, ecclesiastical or
temporal, civil, military, maritime, or criminal: this being
the place where that absolute despotic power, which
must in all governments must reside somewhere, is
intrusted by the constitution of these kingdoms.’ p.160
 ‘All mischiefs and grievances, operations and remedies,
that transcend the ordinary course of the laws, are
within the reach of this extraordinary tribunal.’ pp.160-
161
Commentaries on the Laws of England (1753)
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BLACKSTONE’S
COMMENTARIES (3)
 What can Parliament do? (p.161)
 Alter the line of succession to the throne.
 Change the established religion of the country
 Dissolve itself and create a new constitution and new
parliaments
 Set the length of its own life
 Extent of power – sovereign
 ‘True it is, that what the parliament doth, no authority upon
earth can undo…’ p.161

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 Stockdale v Hansard (1839) 9 A&E 1, 112 E.R. 1112
‘...that the known and established laws of the land cannot be
superseded, suspended, or altered by any resolution or order
of the House of Commons; and that the House of Commons,
in Parliament assembled, cannot, by any resolution or order of
themselves, create any new privilege to themselves

NINETEEN inconsistent with the known laws of the land…’ 1116

TH Edinburgh and Dalkeith Railway v Wauchop (1842) 8 Cl & Fin

710
CENTURY ‘… all that a court of justice can look to is the parliamentary
roll; they see that an Act has passed both Houses of
Parliament, and that it has received the royal assent, and no
court of justice can inquire into the manner in which it was
introduced into Parliament, what was done previously to its
being introduced, or what passed in Parliament during the
various stages of its progress through both Houses of
Parliament.’

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 WHAT WAS THE DICEYAN
APPROACH TO PARLIAMENTARY Back to Dicey…

SOVEREIGNTY?
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PART 3: WHAT WILL WE
CONSIDER?
 Who was AV Dicey?
 Diceyan Legal Sovereignty
 Parliament has a legally unlimited power to un/make
law (legislative sovereignty) through statute.
 The courts cannot strike down Acts of Parliament /
Parliament may overturn the decisions of courts.
 Parliament cannot bind future parliaments
 Diceyan Political Sovereignty
 External and internal limits to sovereignty

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WHO WAS ALBERT
VENN DICEY?
Victorian legal theorist; Ardent unionist and opponent of Irish Home Rule
Michael Gordon writes in Parliamentary Sovereignty in the UK Constitution
(Hart, 2015)
‘… while Dicey attributed legal sovereignty to Parliament, [and] he believed
political sovereignty rested with the electorate. … it is difficult to conceive of
the electorate of Dicey’s era as being democratic by modern standards… ’ 42-
43
‘Dicey was … content to explicate a legal doctrine which vested total
legislative authority in the political elite because he trusted that Members of
Parliament would exercise this power wisely. … Dicey’s belief in the
sovereignty of Parliament was underpinned by his confidence in the English
establishment, rather than any inherent merits of representative
democracy…’ 43
‘… Dicey saw parliamentary sovereignty as concentrating power in a ruling
elite who could use it to maintain the status quo. But as his faith in the
ruling class waned, so did Dicey’s faith in the sovereignty of Parliament…’ 44 Image © Public Domain / Harvard Law School Library
DICEY’S LEGAL
SOVEREIGNTY
“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.”
AV Dicey, Introduction to the Study of the Law of the Constitution (1885)
What does this amount to?
1. Parliament has a legally unlimited power to un/make law.
2. The courts cannot strike down Acts of Parliament / Parliament may overturn the
decisions of courts.
3. Parliament cannot bind future parliaments.
PARLIAMENT HAS A LEGALLY
UNLIMITED POWER TO UN/MAKE
LAW
Mortensen v. Peters (1906) 8 F. (J.) 93
‘…For us an Act of Parliament duly passed by Lords and Commons and
assented to by the King, is supreme, and we are bound to give effect to its
terms.’ pp. 100-101
Cheney v Conn [1968] 1 WLR 242
“What the statute itself enacts cannot be unlawful, because what the statute
says and provides is itself the law, and the highest form of law that is known
to this country. It is the law which prevails over every other form of law, and
it is not for the court to say that a parliamentary enactment, the highest law
in this country, is illegal.” p. 247
THE COURTS CANNOT STRIKE DOWN
ACTS OF PARLIAMENT
R v Jordan [1967] Crim. L.R. 483
 Race Relations Act 1965 challenges as unlawful statute because it infringed his right to free speech. The
court held that the defendant’s position was ‘unarguable’.

Pickin v British Railways Board [1974] AC 765

 “The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must
seem strange and startling to anyone with any knowledge of the history and law of our constitution …
” Lord Reid
 “The question of fundamental importance which arises is whether the court should entertain the
proposition that an Act of Parliament can so be assailed in the courts that matters should proceed as
though the Act or some part of it had never been passed. I consider that such a doctrine would be
dangerous and impermissible…’ Lord Morris, 788-789
 ‘… contrary to what was sometimes asserted before the 18th century, and in contradistinction to some
other democratic systems, the courts in this country have no power to declare enacted law to be
invalid.’ Lord Simon, 798
PARLIAMENT MAY
OVERTURN THE DECISIONS
OF THE COURTS.
Burmah Oil Co. v Lord Advocate [1965] AC 75
 “When the motive of destruction is a deliberate long-
term strategy then, unless it be shown by the Crown
that the damage has also an impact and importance for
the purpose of the battle and would have been done
for that purpose in any event, the subject is entitled to
compensation. Lord Pearce
 “… it was done by way of precaution in the general
prosecution of the overall strategy. It was not done in
the heat of battle. So I would allow this appeal.” Lord
Upjohn

The War Damage Act 1965

Essential Cases note on Burmah Oil
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PARLIAMENT CANNOT
BIND FUTURE
PARLIAMENTS
Vauxhall Estates v Liverpool Corp. [1932] 1 KB 733
“... no Act of Parliament can effectively provide that no
future Act shall interfere with its provisions.” Avory J, p.743
Ellen Street Estates v Minister of Health [1934] 1 KB 590
[The idea that a prior Act can bind Parliament’s future law-
making capacity] “...is absolutely contrary to the
constitutional position that Parliament can alter an Act
previously passed [expressly or by implication].” Scrutton LJ,
pp.595-596
“The Legislature cannot, according to our constitution, bind
itself as to the form of subsequent legislation, and it is
impossible for Parliament to enact that in a subsequent
statute dealing with the same subject-matter there can be no
implied repeal.” Maugham LJ, p 597
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DICEY AND POLITICAL
SOVEREIGNTY
Political sovereignty exerts two limits on Dicey’s legal sovereignty
‘As to the actual limitations on the sovereign power of Parliament. – The actual exercise
of authority by any sovereignty whatever, and notably by Parliament, is bounded or
controlled by two limitations. Of these the one is an external, the other is an internal
limitation.’
AV Dicey The Law of the Constitution
(edited by JWF Allison, OUP 2013) [p.76], p.44
‘Lawyers are apt to speak as though the legislature were omnipotent … But from the
scientific point of view, the power of the legislature is of course strictly limited. It is
limited, so to speak, both from within and from without…’
AV Dicey, citing Leslie Stephens Science of Ethics p.143, at [81]/p.47
THE EXTERNAL LIMIT
‘The external limit on the real power of a sovereign consists in the possibility or certainty that his
subjects or a large number of them will disobey or resist his laws.’ [76-77] 44
“Parliament might legally establish an Episcopal Church in Scotland … legally tax the Colonies …
without any breach of law change the succession to the throne or abolish the monarch; but every
one knows that in the present state of the world the British Parliament will do none of these
things. … widespread resistance would result from legislation which, though legally valid, is …
beyond the stretch of Parliamentary power.’ [79]/45-46
‘Nay more than this, there are things which Parliament has done in other times and done
successfully which a modern Parliament would not venture to repeat. Parliament would not at
the present day prolong by law the duration of an existing House of Commons. … would not
without great hesitation deprive of their votes large classes of Parliamentary electors … These
examples … are enough to show the extent to which the theoretically boundless sovereignty of
Parliament is curtailed by the external limit to its exercise.’ 79 (46)
AV Dicey The Law of the Constitution (edited by JWF Allison, OUP 2013)
EXTERNAL LIMIT
BLUE-EYED BABIES
EXAMPLE
‘It is limited, so to speak … from without, because the power of
imposing laws is dependent upon the instinct of subordination
[i.e. the expectation that people will follow them], which is
itself limited. If a legislature decided that tall blue-eyed babies
should be murdered, the preservation of blue-eyed babies
would be illegal; but legislators must go mad before they could
pass such a law, and subjects be idiotic before they could
submit to it.’
AV Dicey, citing Leslie Stephens Science of Ethics p.143, at
[81]/p.47

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THE INTERNAL
LIMIT
‘The internal limit to the exercise of sovereignty arises from the
nature of the sovereign power itself. Even a despot exercises his
powers in accordance with his character… moulded by the
circumstances under which he lives, including … the moral
feelings of the time and the society to which he belongs.’
AV Dicey The Law of the Constitution
(edited by JWF Allison, OUP 2013) [80], p.46

‘It is limited … from within because the legislature is the product

of a certain social condition, and determined by whatever
determines the society …’
AV Dicey, citing Leslie Stephens Science of Ethics
p.143, at [81]/p.47

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IS IT AS SIMPLE AS
THAT? (NO)
‘A political reading … must instead explore how the
relationship between the law-making process and its
various actors—ministers, Joint Committee, MPs and Lords
—interact with the judiciary and judicial practices … .
Within this frame, the very idea of ultimate sovereignty is
misplaced; claims about ultimate sovereignty … seem too
certain for the ambiguous and changing relationships
between constitutional actors that Dicey attempted to
summarize and simplify in his definition of parliamentary
sovereignty.
There is no reason to think that the practices of Dicey’s
time remain the same today and, so, no reason to appeal
to his shorthand in attempting to understand the
constitution … ’
Gee and Webber, ‘A Grammar of Public Law’
(2013) 14(12) German Law Journal 2137, 2150 Office 365 Stock Image
WHAT IS PARLIAMENTARY
SOVEREIGNTY FOR?
M Gordon, Parliamentary Sovereignty in the UK Constitution (Hart, 2015)
 Organising Principle
 ‘… the sovereignty of Parliament structures to a significant extent the operation of the UK constitution – the powers of
which have been established, the conditions under which these powers are exercised, and the interaction of the institutions
which employ them.’ 28
 Constitutional Focal Point
 ‘… it provides citizens with a route to access an understanding of the operation of the constitution … it transmits outwards a
claim as to the legitimacy of the constitutional order, as a symbol of the primacy of a representative democratic institution
and process.
 Legitimising Power – Promoting Democracy
 ‘When these two roles are appreciated, we can see that the doctrine of parliamentary sovereignty fulfils in the UK a
number of essential functions which any constitution must perform: constituting, conditioning and legitimating power.’ 28
 ‘Parliamentary sovereignty ensures the primacy of democracy in the UK constitution because it is to a democratic
institution that the doctrine allocates legally unlimited legislative authority.’ 44
 PART 4: COMPLEXITIES AND
PROBLEMS WITH DICEY’S Obedience, entrenchment,
modification, change.
PARLIAMENTARY SOVEREIGNTY
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PART 4: WHAT WILL WE
CONSIDER?
 The basis of sovereignty and its origins
 Parliament cannot bind its successors – a
paradox
 Binding successors
 Manner and form
 Other ways of constraining sovereignty
 Surrendering and reconstituting sovereignty
 Human Rights Act 1998
 International Law
 Territorial limits / jurisdictions
 Constitutional conventions and principles

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ON WHAT BASIS DOES
PARLIAMENT CLAIM
TO BE SOVEREIGN?
Parliament’s sovereignty is a political fact of our
constitutional system
HWR Wade ‘The legal basis of sovereignty’ [1955] CLJ 172
‘… The rule is above and beyond the reach of statute …
because it is itself the source of the authority of statute.’ 187
‘This puts it into a class by itself among rules of [188]
common law, and the apparent paradox that it is unalterable
by Parliament turns out to be a truism. 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. To
say that Parliament can change the rule, merely because it
can change any other rule, is to put the cart before the
horse.’ 187-188 Office 365 Stock Image
WHAT IS THE ORIGIN OF THIS
POLITICAL FACT?
IN SHORT, THE HISTORY OF THE
COMMON LAW.
Colin R Munro, Studies in Constitutional Law (London: Butterworths 1987)
‘… while the authority given to the legislature was reflected in judicial behaviour, and so is in that sense part
of the common law, it was not derived from any legal principle, but rather had its sources in a recognition of
political events.’ p.104
Sir John W Salmond, Jurisprudence, 7th ed (London: Sweet & Maxwell, 1924), [48], quoted in Wade [1955]
‘All rules of law have historical sources. As a matter of fact and history they have their origin somewhere,
though we may not know what it is. But not all of them have legal sources. … whence comes the rule that
Acts of Parliament have the force of law? This is legally ultimate; its source is historical only, not legal. … It is
the law because it is the law, and for no other reason that it is possible for the law itself to take notice of. No
statute can confer this power upon Parliament, for this would be to assume and act on the very power that
is to be conferred.’ p.187
W. Ivor Jennings, The Law and the Constitution (London: UoLP, 5th ed. 1959)
‘… the power of the legislature derived from the law by which it is established. … In the United Kingdom,
which has no written constitution, it derives from the accepted law, which is the common law.’ p.156
‘POLITICAL FACT’ CONCEPT,
RECAP
1. Wade asserts that Parliament’s sovereignty is observed because it is a fact of our
political system.
2. It is recognised that the origins of this sovereignty lie in history, and the common law.
3. Parliament cannot alter this rule.
4. The judges obey it because they obey the common law.

Now let’s consider the possibility of changing this rule, and binding future Parliaments.
PARLIAMENT CANNOT
BIND ITS SUCCESSORS:
A PARADOX
H.R. Gray, ‘The Sovereignty of Parliament Today’
(1953) 10 University of Toronto Law Journal 54
‘Can God create for Himself an impossible task?” If He
can do so, so it is reasoned, then the impossibility of
that task must mean that God is not therefore
omnipotent; if He cannot create such a task, there is
something which He is unable to do and He is not
therefore omnipotent. Therefore God is not
omnipotent. Likewise if Parliament is sovereign, there
is nothing it cannot do by legislation; if there is
nothing Parliament cannot do by legislation, it may
bind itself hand and foot by legislation; if Parliament
so binds itself by legislation there are things which it
cannot do by legislation; and if there are such things
Parliament is not sovereign.’
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BINDING BY MANNER
AND FORM - JENNINGS
W. Ivor Jennings, The Law and the Constitution (London:
UoLP, 5e 1959)
‘… legal sovereignty is not sovereignty at all. It is not
supreme power. It is a legal concept, a form of expression
which lawyers use to express the relations between
Parliament and the courts. It means that the courts will
always recognise as law the rules which Parliament makes
by legislation; that is, rules made in the customary manner
and expressed in the customary form.’ p.149
‘… If Parliament adheres to the procedure presently
required by the law to produce a valid statute, this will be
recognised by the courts, including a rule which alters this
law itself.’ p. 153
See also, note on AG for New South Wales v Trethowan
[1932] AC 526 in Essential Cases: Public Law. Image © Public Domain Sri Lanka, 1950 yearbook of Ceylon Muslim Scholarship
BINDING BY MANNER
AND FORM – JACKSON V
AG [2005] UKHL 56
‘This statute created a new method of ascertaining
the declared will of Parliament. It restated the
manner and form in which laws may be made in
respect of what I will call “delayed Bills”, i.e. Public
Bills passed three times by the House of Commons
and rejected on each occasion by the House of
Lords.’ 75
‘In any event, in manner and form the 1911 Act
simply provides for an alternative mode by which
Parliament, as reconstituted for specific purposes,
may make laws.’ 94
See also, note on Jackson v Attorney General in
Essential Cases: Public Law
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 Thoburn v Sunderland City Council [2002]
EWHC 195 (Admin), Laws LJ
(EC: PL note)
[on binding future parliaments …] ‘The
British Parliament has not the authority to
authorise any such thing. Being sovereign,
it cannot abandon its sovereignty.’, [59]
Modified by the common law, the concept
of a ‘constitutional statute’ [59]
 ‘(a) conditions the legal relationship
between citizen and State in some
general, overarching manner, or (b)
enlarges or diminishes the scope of
what we would now regard as
This Photo by Unknown Author is licensed under CC BY-SA fundamental constitutional rights’ (at
[62]).
What about when two constitutional
OTHER MANNER & FORM statutes meet?

MATTERS:  See R (oao HS2 Action Alliance Ltd) v SoS

for Transport [2014] UKSC 3 (EC: PL note)
CONSTITUTIONAL STATUTES  And also Imperial Tobacco Ltd v The Lord
Advocate (Scotland) [2012] UKSC 61(EC: PL
note)
OTHER WAYS OF CONSTRAINING
PARLIAMENT: SURRENDERING AND
RECONSTITUTING SOVEREIGNTY
Dicey, Introduction to the Study of the Law of the Constitution (8 th ed 1915) (Indianapolis: Liberty
Fund, 1982) p.24 (footnotes)
‘Let the reader, however, note that the impossibility of placing a limit on the exercise of sovereignty
does not in any way prohibit either logically, or in a matter of fact, the abdication of sovereignty.’
Examples in history…
 Acts of Union 1707
 Dissolution of the Scottish and English Parliaments
 Creation of the Westminster Parliament
 The Statute of Westminster 1931 ss. 2 & 4
 Part of the legislation unpicking the power of the Imperial Parliament
 The Devolution Acts 1998 et seq
 The legislation creating the Scottish, Welsh, and Northern Irish governments and legislatures.
 SURRENDERING AND
RECONSTITUTING SOVEREIGNTY: A
FAMILIAR, MODERN EXAMPLE… (1)
The European Communities Act 1972
Blackburn v Attorney-General [1971] 1 WLR 1037
 “It does appear that if this country should go into the Common Market and sign the Treaty of Rome, it
means that we will have taken a step which is irreversible. The Sovereignty of these islands will
thenceforward be limited.” Lord Denning MR, 1039
 “As to Parliament, in the present state of the law, it can enact, amend and repeal any legislation it
pleases. The sole power of the courts is to decide and enforce what is the law and not what it should be
– now, or in the future.” Salmon LJ, 1041

See also Case (6/64) Costa v. ENEL [1964] ECR 585

 ‘by creating a Community of unlimited duration, having its own institutions, its own personality and its
own capacity in law, apart from having international standing and more particularly, real powers
resulting from a limitation of competence or a transfer of powers from the States to the Community,
the member-States, albeit within limited spheres, have restricted their sovereign rights and created a
body of law applicable both to their nationals and to themselves....’
SURRENDERING AND
RECONSTITUTING
SOVEREIGNTY: A FAMILIAR,
MODERN EXAMPLE… (2)
R v SoS for Transport, ex parte Factortame (No. 2)
[1991] 1 AC 603, per Lord Bridge at 658-659 (EC:PL)
 ‘…. Under the terms of the Act of 1972 it has
always been clear that it was the duty of a United
Kingdom court, when delivering final judgment,
to override any rule of national law found to be
in conflict with any directly enforceable rule of
Community law
R (oao Miller) v SoS EEU [2017] UKSC 5 (EC:PL)
 Authorising exit from the EU required
(parliamentary) legislation
European Union (Withdrawal) Act 2018, s.1
 ‘The European Communities Act 1972 is repealed
on exit day.’ [note the express repeal]
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 R v DPP, ex parte Kebilene [2002] 2 AC 326,
per Lord Steyn at 367
“It is crystal clear that the carefully and
subtly drafted Human Rights Act 1998
preserves the principle of parliamentary
sovereignty.”

But consider… (as we will in more detail

later in the module…)
 Section 3 – Interpretation (see e.g.
Godin-Mendoza case note in EC: PL).
 Section 4 – Declarations of Incompatibility
(see e.g. R (oao H) case note in EC: PL).

OTHER CONSTRAINTS And reflect on Dicey’s political sovereignty –

repeal of the Human Rights Act 1998?

ON SOVEREIGNTY: THE  Bill of Rights Bill 2022 (now, apparently,

abandoned)
HUMAN RIGHTS ACT 1998
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OTHER CONSTRAINTS ON
SOVEREIGNTY –
INTERNATIONAL LAW
Mark Elliott, ‘Legal exceptionalism in British political discourse: International law,
parliamentary sovereignty and the rule of law’ (Public Law for Everyone, 10 October 2021)
 Monism / Dualism and Parliamentary Sovereignty…
 ‘It rests on the assumption that the UK can make domestic law so as to evade its
obligations under international law. But this is legally illiterate. The UK Parliament, being
sovereign, can make whatever domestic law it wishes — but the notion of parliamentary
sovereignty has no purchase outwith the domestic context. This is a point that should
evade no first-year constitutional law student, yet it is one that seems to evade the
Government with surprising frequency.’
 ‘The harsh reality is that as a matter of international law, there is no hierarchy of legal
orders — and certainly no group of lesser such orders that the UK is privileged to sit
outside. Like the rest of the world, the UK, if it wishes to be part of the rules-based
international order, cannot pick and choose the international legal obligations that it
honours — and talk of parliamentary sovereignty in this context can be evidence of
nothing other than ignorance or disingenuousness.’
OTHER CONSTRAINTS ON
SOVEREIGNTY –
TERRITORIAL LIMITS /
JURISDICTION
The classic example for legislating overseas…
 Banning smoking on the streets of Paris – Jennings, 1959

Thus largely confined to legislating for one’s own citizens

overseas.
 As always, some exceptions, e.g.
 Hijacking Act 1971, s.1(1), in relation to international
flights
 A person on board an aircraft in flight who unlawfully …
seizes the aircraft or exercises control of it commits the
offence of hijacking, whatever his nationality, whatever
the State in which the aircraft is registered and
whether the aircraft is in the United Kingdom or
elsewhere…’
 And see in Aviation Security Act 1982, s.1(1)

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 The National Health Service,
the welfare state
Privatisation of public
industries and services
Austerity
‘Brexit’

OTHER CONSTRAINTS
ON SOVEREIGNTY –
PRACTICALITY
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 Mark Elliott, quoted by the
Select Committee on the Constitution United Kingd
om Internal Market Bill
(17th Report of Session 2019-21, HL 151), Ch 7, para.
228
“… Parliament has, as a matter of orthodox
constitutional theory, limitless power to enact and
change domestic law, [but] restraint is exercised in
order to ensure adherence to relevant
constitutional standards. This both requires and
ought to give rise to a culture of mutual respect,
whereby (for example) Parliament respects the
courts’ constitutional role, including that which is
entailed in judicial review, just as courts respect
Parliament’s constitutional right to make the law.”
R (on the application of UNISON) v Lord Chancellor
[2017] UKSC 51, at [68]

CONSTITUTIONAL ‘68. At the heart of the concept of the rule of law is

the idea that society is governed by law. Parliament
CONSTRAINTS ON exists primarily in order to make laws for society in
this country. Democratic procedures exist primarily
PARLIAMENTARY in order to ensure that the Parliament which makes
SOVEREIGNTY those laws includes Members of Parliament who
are chosen by the people of this country and are
accountable to them.’
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 R (on the application of Miller)
v SSEEU [2017] UKSC 5, [145]
The Sewel Convention is only
a… “political restriction on the
activity of the UK Parliament”
This Photo by Unknown Author is licensed under CC BY-NC

OTHER CONSTRAINTS ON
SOVEREIGNTY –
CONSTITUTIONALITY:
CONSTITUTIONAL CONVENTIONS
 TRS Allan, Law, Liberty, and Justice: The Legal
Foundations of British Constitutionalism (OUP, 1993)
‘...it [the legislature] could not usurp the executive or
judicial functions... It is hard to believe that, as a body
of principle (reason), the common law could take a
different view. It follows that a statute which violates
the constitutional scheme fundamentally could derive
no legal authority from the doctrine of sovereignty,
properly understood.’ 77
Mark Elliott, quoted by the
Select Committee on the Constitution United Kingdo
m Internal Market Bill
(17th Report of Session 2019-21, HL 151), Ch 7, para.
229
We do not doubt that Parliament has the legal
authority to enact violations of the UK’s international
OTHER CONSTRAINTS legal obligations. However, it does not follow that
ON SOVEREIGNTY – such action is consistent with the rule of law. Clauses
44, 45 and 47 explicitly authorise ministers to breach
CONSTITUTIONALITY: the UK’s obligations in international law and attempt
to place significant limits on judicial review of certain
RULE OF LAW regulations made under it. Those clauses represent a
disregard for the rule of law.
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 R v HM Treasury, ex parte Smedley [1985] QB
657 Per Sir John Donaldson at p.593
‘Although the UK has no written constitution, it
is a constitutional convention of the highest
importance that the legislature and the
judicature are separate and independent of
one another, subject to certain ultimate rights
of Parliament over the judicature which are
immaterial for present purposes.
It therefore behooves the courts to be ever
sensitive to the paramount need to refrain
from trespassing on the province of
Parliament, or so far as this can be avoided,
even appearing to do so. Although it is not a
OTHER CONSTRAINTS matter for me, I would hope and expect that
ON SOVEREIGNTY – Parliament would be similarly sensitive to the
need to refrain from trespassing on the
CONSTITUTIONALITY: province of the courts.’
SEPARATION OF POWERS
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SOVEREIGNTY TODAY?
Jackson v AG [2005] UKHL 56, Lord Steyn at [56]

[102] … We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. …
The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen
to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that
circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of
constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts,
… [the courts] may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the
behest of a complaisant House of Commons cannot abolish.’

R (oao Miller) v SSEEU [2016] EWHC 2768 (Admin), per Thomas LCJ, Etherton MR, Sales LJ, at [20]

‘… the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted
by the Crown with the consent of both Houses of Parliament is supreme… . Parliament can, by enactment of primary legislation,
change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where
SOVEREIGNTY TOMORROW…
CAN THE VIEW – OF PARLIAMENT’S
SOVEREIGNTY, AND THE NATURE OF
THE SOVEREIGNTY – CHANGE?
HWR Wade Constitutional Fundamentals (The Hamlyn Lectures,
32nd series)(London: Stevens & Sons, 1980), pp.29-30
‘I have never suggested that no shift in judicial loyalty is possible.
One only has to look at the shifts which took place [in history] …
These shifts are revolutions, breaks in continuity and in the legal
pedigree of legislative power. Even without [30] such
discontinuity there might be a shift of judicial loyalty if we take
into account the dimension of time.
Suppose Parliament were to enact a Bill of Rights entrenched by
a clause saying that it was to be amended or repealed only by
Acts certified to be passed by two-thirds majorities in both
Houses. Suppose also that Parliament scrupulously observed
this rule for 50 or 100 years, so that no conflicting legislation
came before the courts. Meanwhile new generations of judges
might come to accept that there had been a new constitutional
settlement based on common consent and long usage, and that
the old doctrine of sovereignty was ancient history …
The judges would then be adjusting their doctrine to the facts of
constitutional life, as they have done throughout history.’ Office 365 Stock Image
SUMMARY
 Definitions
 Origins
 Dicey’s account of parliamentary sovereignty
 Legal
 Political (internal and external limits)

Complexities and Problems

 Wade’s political fact
 Binding successors / Manner and Form
 Constraints
 Across
(EXCITING) PARLIAMENTARY 2. ___ hunting was an underlying concern in Jackson
6. According to Dicey, what Acts of Parliament cannot
SOVEREIGNTY CROSSWORD be
8. Name of the memos in Evans
10. Also known as the Metric Martyrs’ case
11. A body comprising three parts
14. William of [not to be compared with apples]
15. Absolute power, S
17. Meaning to pass power away from the centre
19. Act of _______ establishing the line of succession
and means for removing judges
20. Theorist, Dicey redux? ___ into water
21. Famous 19th century jurist.
22. Description of an Act which is hard to repeal
Down
1. A famous 17th century judge and jurist. Not Pepsi.
2. Was significantly expanded by the Reform Acts of
the 19th century
3. Produces flour, a seminal case on sovereignty
4. A case involving fishing and sovereignty
5. 1931 statute; Houses of Parliament are here.
7. ______ and form
8. Famous 18th century jurist. Obsidian is one.
9. Royal ______.
12. Meaning with backwards-looking application
13. A class of Lords reduced by an Act of 1999
16. The only pronouncements of Parliament which are
sovereign
18. A convention. Rhymes with jewel
ANY QUESTIONS?
Get in touch after the lecture by email or
book an office hour / drop in
appointment to discuss the lecture.
Did you spot the cat and mouse, and the
cat on its own?
 Across
(EXCITING) PARLIAMENTARY 2. ___ hunting was an underlying concern in Jackson
6. According to Dicey, what Acts of Parliament
SOVEREIGNTY CROSSWORD - cannot be
8. Name of the memos in Evans
SOLUTION 10. Also known as the Metric Martyrs’ case
11. A body comprising three parts
14. William of [not to be compared with apples]
15. Absolute power, S
17. Meaning to pass power away from the centre
19. Act of _______ establishing the line of
succession and means for removing judges
20. Theorist, Dicey redux? ___ into water
21. Famous 19th century jurist.
22. Description of an Act which is hard to repeal
Down
1. A famous 17th century judge and jurist. Not Pepsi.
2. Was significantly expanded by the Reform Acts of
the 19th century
3. Produces flour, a seminal case on sovereignty
4. A case involving fishing and sovereignty
5. 1931 statute; Houses of Parliament are here.
7. ______ and form
8. Famous 18th century jurist. Obsidian is one.
9. Royal ______.
12. Meaning with backwards-looking application
13. A class of Lords reduced by an Act of 1999
16. The only pronouncements of Parliament which
are sovereign
18. A convention. Rhymes with jewel