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LEGITIMACY IN THE CONSTITUTION AND PARLIAMENTARY SUPREMACY CENTRAL ISSUES The concept of parliamentary !

!premacy "a a central place in the UK constitution. It asserts that Act of t"e U# Parliament are t"e "i$"e t form of la% and pre&ent t"e '!(iciary a('!(icatin$ on t"e &ali(ity of primary legislation. There is a battle between t%o )roa( c"ool of thought regarding what should provide le$itimacy in t"e U# con tit!tion. o For *political con tit!tionali t *, it is the political proce , Parliament, and the principle of parliamentary !premacy t"at "o!l( )e central+ o ,Le$al con tit!tionali t * contend that the '!(iciary "o!l( "a&e a $reater role, with power to tri-e (o%n Act

of Parliament that are contrary to fundamental rights or constitutional principles. There is a (e)ate a)o!t %"et"er con tit!tionally important Act of Parliament may)e ,entrenc"e(., making it more difficult than normal to repeal or amend. The rule of implie( repeal states that where a later Act i incon i tent %it" an earlier Act that remains in force, the courts should recogni e the later !ct as valid law. "urrent legal thinking suggests that t"i r!le "o!l( not apply %"ere t"e earlier Act i con tit!tionally important+

INTRODUCTION Tyranny is not legitimate and therefore not constitutional There are ome (e potic $o&ernment aro!n( t"e %orl( that try to r!le )y fear an( oppre ion+ #ut if we accept the idea that con tit!tional y tem embrace the i(ea of le$itimacy, we "o!l( not re$ar( t"o e tyrannical regimes as )ein$ ,con tit!tional..

$hether constitutional or not depend on whether it is limit the govt in law and also in practice by convention as well "onsider carefully the e%planation given by Profe or /"eare& "onstitutional government means omet"in$ more t"an $o&ernment accor(in$ to t"e term of a Con tit!tion. It means government according to rule as oppo e( to ar)itrary $o&ernment' it means $o&ernment limite( )y t"e term of a Con tit!tion, not government limited only by the desires and capacities of those who e%ercise power. It might happen, therefore, that alt"o!$" government in a particular country was con(!cte( accor(in$ to t"e term of t"e Con tit!tion, )!t t"at Con tit!tion (i( no more t"an e ta)li " t"e in tit!tion of

$o&ernment an( lea&e t"em free to act a t"ey %i "e(.

In such a case %e %o!l( "ar(ly call t"e $o&ernment con tit!tional $o&ernment. The real '! tification of Con tit!tion , the original idea behind them, is that of limitin$ $o&ernment an( of re0!irin$ t"o e %"o $o&ern to conform to la% an( r!le . (ost "onstitutions )... * do purport to limit the government. #efore we can conclude, however, that a co!ntry %"ic" "a a Con tit!tion limitin$ t"e $o&ernment, has also con tit!tional $o&ernment1 we must see how the Con tit!tion %or- in practice, and see in particular %"et"er ! a$e an( con&ention operate to strengthen or to weaken constitutional limitations.

In the same way %e cannot concl!(e that a co!ntry laccon tit!tional $o&ernment simply )eca! e it Con tit!tion appear to impo e no limitation on the government' it may well be that further study will show that the or(inary la% of t"e lan( com)ine( %it" ! a$e an( con&ention !pply those c"ec%"ic" t"e la% of t"e Con tit!tion (i( not.

Factor against constitutional govt $heare goes on to say that &ario! force may coperate a$ain t con tit!tional $o&ernment, to %ea-en an( (e troy it These include& %ar' a tate of cri i or emer$ency' and economic (i tre or difficulty.

UK constitutional principles& P+ and ,-. +ystems of con tit!tional $o&ernance rely on &ario! $!i(in$ principle to confer le$itimacy on t"eir action + In relation to the UK constitution, two principles have attracted spe/cial attention& o parliamentary !premacy 0the sub1ect matter of this chapter2 and o the r!le of la% 0e%amined in "hapter 32. !s we shall see, people (i a$ree a)o!t t"e e principle 1 t"eir interrelation "ip 1 an( t"eir application in t"e mo(ern 2riti " con tit!tion.

LEGITIMACY .egitimacy related to acceptance of the public to the good reason conduct even though may disagree with individual determination It is possible to take the view that 4the law is the law is the law56in other words, that if a law has been made according to a stipulated process and in the prescribed format, then it should in all circumstances be regarded as legitimate. The stipulated process and prescribed format are, in most countries, laid down/in a codified constitutional document. o In the Unite( #in$(om, %it"o!t a co(ifie( con tit!tion, the proce(!re for making primary legislation are containe( in a &ariety of o!rce 1 incl!(in$ Act of Parliament1 t"e tan(in$ or(er of eac" Ho! e of Parliament1 an( con&ention

#ut %"at if t"e proce an( format are $ro ly !nfair3

For e%ample, a con tit!tional y tem could e4cl!(e a proportion of the population from standing for election to the legislature on account of their race and laws might be secret in the sense that the con tit!tion place no o)li$ation on t"e le$i lat!re to p!)li " t"em. o That mean some population disagreement may not be accepted In these circumstances, should the law be treated as legitimate7 To answer that 8uestion, we need to define what is meant by 4legitimacy5.

!lthough this term of political science is not clear/cut, scholars often emp"a i5e the t%o6 i(e(ne of the concept of le$itimacy& o it is people. )elief that they ought to comply %it" a la% or (eci ion, and o it is a claim )y in tit!tion of t"e State that their determinations o!$"t to )e complie( %it"+ For the purposes of this chapter, we can say that conditions of legitimacy e%ist if1 for $oo( rea on1 people are $enerally prepare( to accept t"e la% an( (eci ion of p!)lic a!t"oritie , e&en t"o!$" t"ey may (i a$ree %it" ome in(i&i(!al (etermination . Le$itimacy i t"erefore clo ely relate( to, )!t e4ten( )eyon(, the i(ea of p!)lic compliance or con ent+

P+ vs ,-. To understand properly the significance of parliamentary !premacy an( t"e r!le of la%, we need to place these principles in the conte%t of a &itally important (e)ate a)o!t %"at ma-e t"e e4erci e of $o&ernment po%er in mo(ern 2ritain le$itimate. There are, broadly speaking, t%o main competin$ &ie% held by scholars, politicians, and 1udges These views can be labelled 4political con tit!tionali m. an( ,le$al con tit!tionali m..

9. POLITICAL CONSTITUTIONALISM "ommon legitimate make law because win the election, govt legitimate make policy as they accountable to "ommon In one view, po%er an( t"e ma-in$ of la% is and should be le$itimi5e( t"ro!$" Parliament. :eneral elections every four to five years result in the lea(er of t"e lar$e t political party in t"e Ho! e of Common having authority to form t"e $o&ernment and govern the nation. ! Prime (inister can say& 4/e le$itimately r!le )eca! e %e %on t"e election.5 In "hapter ;, we see that the government of the UK, and its in(i&i(!al mini ter 1 are a)le to remain in office for !p to fi&e year between elections, but only if t"ey en'oy ,t"e confi(ence. of t"e

Ho! e of Common ' if this confidence is lost, the Prime (inister must ask the <ueen for a dissolution of Parliament, giving rise to a general election.

$e will e%amine how, )et%een election , mini ter are "el( acco!nta)le to Parliament through the re8uirement that they answer 8uestions and e%plain government policy to Parliament, and are re$!late( )y t"e con tit!tional con&ention of in(i&i(!al an( collecti&e mini terial re pon i)ility Mini ter are t"! a)le to ay ,%e le$itimately "a&e po%er to (e&elop an( implement policie 1 )eca! e %e are calle( to acco!nt for t"em )y Parliament..

Parliament supreme as the !cts is the highest form of law In this chapter, we consider another strand in the idea that po%er i le$itimi5e( through Parliament& that is, the principle of parliamentary !premacy 0also called parliamentary sovereignty2. In a nutshell, this is the idea that Act of Parliament are the "i$"e t form of la% in the United Kingdom. The conse8uence is that co!rt "a&e no con tit!tional po%er to et a i(e pro&i ion of Act of Parliament as incompati)le %it" con tit!tional principle + It is sometimes said that the #ritish constitution can be encapsulated in only eight words&4$hat the <ueen in Parliament enacts is law=

Politicians are the top as democracy based on ma1oritarianism reflected on "ommon Politicians are, and should be, the top dogs. (a1or (eci ion affectin$ t"e life of t"e nation should be debated and (eci(e( in Parliament 7not in co!rtroom 8+ The notion of (emocracy t"at !n(erpin all of this is ma'oritariani m. The views of the ma'ority1 a reflecte( in t"e compo ition of t"e Ho! e of Common , "o!l( )e (eci i&e. Parliament "o!l( t"erefore )e, by its procedures and composition, %ell6e0!ippe( to "ol( $oo( 0!ality (e)ate an( in0!irie .

>udiciary undermine the social legislation so many welfare entitlement moved to tribunal rather than court ! deep vein of ceptici m about the con tit!tional role of t"e '!(iciary runs through the political constitutionalists thinking. In some writing in previous years, '!($e were seen as having an agenda of their o%n t"at ri -e( !n(erminin$ policie p!r !e( )y electe( $o&ernment an( appro&e( )y Parliament. Ane!rin 7Nye8 2e&an, the health minister in the 9?@A/A9 Labour government and responsible for the creation of the Bational Cealth +ervice, bluntly e4pre e( concern a)o!t t"e pro pect of ,'!(icial a)ota$e of, ociali t le$i lation+ A('!(ication on many entitlement to %elfare )enefit an( p!)lic er&ice %ere allocate( to peciali t tri)!nal 6 which included lay people and

e%perts6rat"er t"an to t"e co!rt +

>udges could not be seemed as political neutral and also impose constraint which out of their institutional role, politician is the one who should impose constraint In his )2e&an9 controversial book The Politics of the >udiciary 09?;;2, :+A+G+ Griffit" 09?9D/EF9F2 ! e( a election of ca e 0on areas such as race relations, trade union law, police powers, and students2 to advance an argument that 1udges in #ritain, )y rea on of t"eir !pper6 cla )ac-6$ro!n(6private schools and -%bridge degrees6an( t"eir in tit!tional po ition in ociety, necessarily "a( a tron$ i(eolo$ical )ia to%ar( ,e ta)li "e( a!t"ority5 an( &ie% a ociate( %it" t"e Con er&ati&e Party at t"at time ;t"at time i La)o!r $o&t9. In other words, t"ey ro!tinely r!le( a$ain t tra(e !nioni t 0in an age when trade unions were more influential in public life than they are now2, demonstrators, students, and so on.

In Griffit". &ie%, '!($e co!l( not )e een a politically ne!tral and t"ey %ere not effecti&e $!ar(ian of in(i&i(!al li)erty against the +tate. This was not a critici m of in(i&i(!al '!($e , but an analy i of t"e in tit!tional role playe( )y t"e '!(iciary+ Gra"am Gee& )... * Griffit" is not troubled by limiting government per se, but rather by limitin$ $o&ernment t"ro!$" '!(icially impo e( con traint , and even then "e i tro!)le( only )y certain '!(icially impo e( con traint . -n my reading, :riffith=s political constitutionalism is 1ust that& a political mo(el of con tit!tionali m+

!nd any model of constitutionalism must include an account of the norms creating, structuring and defining the authority of the governing institutions, including an e%planation as to how those norms constrain the power of those institutions. <or Griffit", politic , and in particular the parliamentary process, "o!l( create1 tr!ct!re an( (efine t"e a!t"ority of t"e $o&ernin$ in tit!tion 1 incl!(in$ impo in$ con traint on t"o e in tit!tion . T"at i to ay1 politic , and to some e%tent law, should 0and do in fact2 con train t"e $o&ernin$ in tit!tion +

P+ raised by universal political party/ against 1udicial activism From what has been said so far, it might seem as if all adherents of political constitutionalism belong to the political left6but this is certainly not the case' rather, it i a &ie% of t"e %orl( t"at "a cro 6party appeal. Con er&ati&e an( ot"er on t"e Ri$"t in 2riti " politic have attac"e( $reat %ei$"t to t"e principle of parliamentary !premacy and the central place of Parliament in the constitutional set/ up. The ability of the national Parliament to legislate free from unnecessary constraints from the Guropean Union 0GU2 is a defining view of many on the right.

Politician in )ot" La)o!r an( Con er&ati&e governments have vented fr! tration at %"at t"ey ee a '!(icial ,acti&i m., and have, in the past fifteen years or so )reac"e( con&ention )y )ein$ o!t po-enly critical of co!rt '!($ment and occasionally of 1udges in general. For e%ample, Da&i( 2l!n-ett MP 0Come +ecretary in Tony #lair5s .abour government2 made an angry statement following a court ruling in EFF3&5Frankly, I.m fe( !p %it" "a&in$ to (eal %it" a it!ation %"ere Parliament (e)ate i !e an( t"e co!rt o&ert!rn t"em*

"ourt cannot has the legitimacy as compared to elected representative, politic can restraint the govt In the following e%tract, Profe or Tom-in 6a leading e%ponent of political constitutionalism6prai e Parliament an( %arn a$ain t tr! tin$ t"e co!rt = $hat is beautiful about the #ritish constitution is that it )...* uses politic a t"e &e"icle t"ro!$" %"ic" t"e p!rpo e of t"e con tit!tion 0that is, to c"ec- t"e $o&ernment2 may be accomplished. This is beautiful for at least t%o rea on & o fir t, because it is (emocratic' and o econ(ly, because it can act!ally %or-. Politics really can stop governments from abusing their authority.

Turning instead to t"e co!rt to pro&i(e %ay of "ol(in$ t"e $o&ernment to acco!nt endangers both democracy and effectiveness. No matter "o% (emocracy is defined, '!($e can ne&er "ope to matc" t"e (emocratic le$itimacy of electe( politician . $hether you conceive of (emocracy in term of t"e repre entati&ene of t"e per onnel or in term of t"e openne an( acce i)ility of the institution, Parliament %ill al%ay en'oy $reater (emocratic le$itimacy t"an co!rt +

Te%t constitution can never be the solution to the a need/constantly changed govt !nd Profe or Lo!$"lin %arn a$ain t t"e i(ea t"at t"e te4t7 8 of a con tit!tion can pro&i(e all of t"e an %er nee(e( to re ol&e conflict = !lthough advocating a more formal separation of powers, (ontes8uieu also recognised the political character of the e%ercise, believing that, provided each of these roles is properly acknowledged, the three branches of government =are constrained to move by the necessary motion of things=. $ith the emer$ence of con tit!tional le$ali m, however, came t"e )elief t"at ol!tion to t"e e intrin ically political matter are to be found in, or through, the te%t. Con e0!ently, %"ene&er6as has been the case in all modern states6 the e4ec!ti&e "a acte( to fill t"o e pace which e%ist within all

constitutional documents, t"i "a )een t"e occa ion for (i appro)ation ;(i appro&al9+ The error of constitutional legalism is of a most basic kind, that of mistaking the part for the whole. +uch le$ali m fail properly to ac-no%le($e t"e pro&i ional c"aracter of con tit!tional arran$ement and that =the development and acceptance of a constitutional framework can occur only as the contingent result of irresolvable conflict=.

Indeed, this must be so, because it o)'ect>t"e acti&ity of $o&ernin$ >i intermina)le.

The arran$ement of $o&ernin$ are in a permanent tate of (i e0!ili)ri!m, since =the y tem "a ne&er )een (e i$ne( a a %"ole1 and such coherence as it possesses is the product of constant read1ustment of its parts to one another=.

$hat (ichael -akeshott )9?F9/?F, a philosopher* calls =the system of superficial order= is, of course, always =capable of being made more coherent=. !nd while this can often be a useful and positive e%ercise, but =the barbarism of order appears when order is pursued for its own sake and when the preservation of order involves the destruction of that without which order is only the orderliness of the ant/heap or the graveyard=.

E. LEGAL CONSTITUTIONALISM ,-. workable as P+ weak in control the govt, and minority right may e%cluded due to they have no vote There is a (ifferent &ie%+ This sees the courts and le$ally enforcea)le rights as the keys to creating conditions under which $o&ernment po%er i limite(. Parliamentary control of $o&ernment i re$ar(e( a ineffecti&e6the reality, it is said, is that $o&ernment control Parliament 0rather than the other way around2. The principle of parliamentary !premacy is therefore too %eato )e an effecti&e re traint on government. It provides no $!arantee for f!n(amental ri$"t or t"e ri$"t of minoritie .

Those who advocate le$al con tit!tionali m are concerne( that a ma'ority of mem)er of Parliament 7MP 8 co!l( pa le$i lation re trictin$ ri$"t , such as freedom of speech and association, on which the idea of democracy rests. People in ome minority $ro!p 0such as people in prison and people seeking political asylum in the United Kingdom2 may not "a&e any ?oice. in Parliament& t"ey "a&e no &ote and MP are rel!ctant to ta-e !p t"eir ca! e. +o instead of parliamentary supremacy being the dominant rule in the UK constitution, le$al con tit!tionali t ar$!e t"at %e "o!l( rely on ot"er principle > nota)ly t"e r!le of la%.

Hemocracy is not ma1oritarianism but to secure fundamental right and therefore court should protect the right Le$al con tit!tionali t 0like the political constitutionalists2 claim that democracy underpins their views6 but t"ey re'ect t"e notion of ma'oritariani m. Democracy1 for t"em, is not only about counting votes at general elections or in the Couse of "ommons, but al o in&ol&e in i tin$ on t"e protection of t"e ri$"t t"at protect in(i&i(!al li)erty. It %o!l( not )e ,(emocratic. for le$i lation to )e pa e( t"at re trict free(om of e%pression ahead of an election, e&en if a ma'ority of MP %ere to fa&o!r t"i + The co!rt are re$ar(e( a "a&in$ an e ential role in protectin$ ri$"t +

Daintit"& Con tit!tionali m, as political theory and practice, po it t"at t"e po%er of $o&ernment must be structured and limite( )y a )in(in$ con tit!tion incorporatin$ certain )a ic principle if t"e protection of &al!e li-e "!man li)erty an( (i$nity is to be assured. This is a &i ion e4pre e( in t"e fir t *mo(ern* con tit!tion , those of the Unite( State 09;D?2, and of <rance 09;D?, 9;?92, in contradistinction to the notion of the constitution6previously dominant, but still commanding some support in the United Kingdom6as merely describing how the state=s functions are allocated and organi ed at any given time.

Today, the $reat ma'ority of tate are =constitutionalist= in that they have co(ifie( con tit!tion which proclaim themselves as supreme law' are based on popular sovereignty' incorporate the principles of limited, representative and accountable government, and the separation of powers' guarantee 1udicial independence' protect human rights' and re8uire special procedures for amendment. (any also accept the principle that the con tit!tion1 a a )in(in$ le$al (oc!ment, can be a!t"oritati&ely interprete( only )y t"e co!rt , or )y a peciali t con tit!tional co!rt. "onstitutionalism so enhanced appeals to lawyers, since it place la% a)o&e politic and ma-e '!($e 1 not le$i lator or $o&ernment 1 t"e c! to(ian of t"e f!n(amental &al!e of society.

The fact that the United Kingdom constitution, though departing in important respects from the precepts of constitutionalism, nonetheless secures its values, while many =consti/tutionalist= states fail in this, is attributed by constitutionalists not to any weakness of their theory but to unusual features of our national character and political development.

:ovt power should be in controlled and not destructive !nd consider the following from Lor( Steyn, writing at a time when he was a serving .aw .ord "onstitutionalism is a political theory as to the type of in tit!tional arran$ement that are necessary in order to !pport t"e (emocratic i(eal+ It "ol( t"at t"e e4erci e of $o&ernment po%er m! t )e controlle( in or(er that it "o!l( not )e (e tr!cti&e of t"e &ery &al!e %"ic" it %a inten(e( to promote. It re8uires of the e%ecutive more than loyalty to the e%isting constitution. It is concerned with the merits and 8uality of constitutional arrangements.

"ourts only determine whether the constitutional principle is constraint which legislature goes beyond the line democratic confined but not on social policy issue #ut if 7a le$al con tit!tionali t )elie&e8 Act of Parliament "o!l( not )e t"e "i$"e t form of law, what should7 The an %er for many i a %ritten con tit!tion and an entrenched #ill of rights, enforce( %"en nece ary )y t"e co!rt + For others, the an %er i t"e common la%, as developed by the 1udges. Gither way, the co!rt "o!l( )e (emocracy. referee +

Profe or :o%ell, a leading e%ponent of legal constitutionalism, develops this idea in the following e%tract& It can no longer be doubted that one of the preconditions of any constitutional democracy, properly so/called, is re pect for certain ri$"t that neit"er t"e e4ec!ti&e nor t"e le$i lat!re, representative as it may be, "o!l( )e a)le to (eny %it" imp!nity+ #ut "o% con&incin$ is the claim of the supporters of parliamentary sovereignty that its demise would have the effect of imply tran ferrin$ !nfettere( po%er from t"e electe( le$i lat!re to t"e !nelecte( '!(iciary7 T"at claim i mi lea(in$. It i$nore the fact that the p"ere of t"e '!(iciary an( t"e le$i lat!re are (i tinct.

For a start, e&en !n(er t"e mo(el of a ri$"t 6)a e( (emocracy, le$i lati&e a!t"ority inevitably contain 1 a %i(e area of (i cretion to ma-e ocial an( economic policy, over which the co!rt "a&e no (omini!m. It is not for t"e '!($e to econ(6 $!e the le$i lat!re on !tilitarian calc!lation of the social good. T"eir role i trictly confine( to t"e limite( i !e of %"et"er t"e &ario! in"erent element of (emocracy "a&e )een infrin$e( by other branches of government and therefore cannot be sustained.

Gven within the bounds of parliamentary sovereignty, as we have seen, the courts already e%ercise this role to some degree. The historic dialogue and process of iteration and self/correction between Parliament and the courts has allowed the development of public law rights and duties to which both the legislature and 1udiciary have contributed. If parliamentary o&erei$nty %ere to )e (i car(e( as our prime constitutional principle, it is true that Ithe last wordI would pass from the legislature to the courts6)!t only on t"e 0!e tion %"et"er t"e le$i lat!re "a traye( )eyon( t"e line of it (emocratic confine . The assertion of this authority %o!l( re0!ire of t"e co!rt a )ol(ne to interpret con tit!tional principle as they ought to be.

Ho%e&er1 it %ill al o re0!ire a mo(e t appreciation of t"eir o%n limitation +

/ Insulated court make better decision T"ere %ill )e i !e on the mar$in of le$al principle an( ocio6economic policy which will inevitably in&ite t"e c"ar$e of '!(icial o&erreac"+ However Parliament is not in a po ition to '!($e t"e e matter in it o%n ca! e. !nd there is much to be said for having these (eci ion ma(e )y t"o e %"o are in !late( from t"e nece ity to re pon( to t"e percei&e( opinion of the moment.

If a future Parliament were to pass a law which infringed the rule of law or other constitutional fundamentals, it may be that our 1udges will feel that they still lack sufficient authority to strike it down on the ground that it subverts the implied conditions6the essential features6of our constitutional democracy. Cowever, some of those conditions, such as free and regular elections, underlie the legitimacy of the principle of parliamentary sovereignty itself. -thers, such as access to 1ustice, are necessary re8uirements of a modern hypothesis of constitutionalism+

3. /HAT IS THE TRA:ECTORY 3 If there is a (e)ate o&er t"e f!t!re (irection of the #ritish constitution, then %e nee( to a - %"o. %innin$+ The answer is that there is no trai$"tfor%ar( an %er+ -n the one hand, there contin!e to )e a &ery tron$ attac"ment to t"e principle of parliamentary !premacy. This might be seen as evidence that political constitutionalism remains the dominant force. -n the other hand, e&eral of t"e reform put in place during Tony #lair5s premiership 9??;/EFF; can be seen as part of a tren( to%ar( a more le$al.1 le political. con tit!tional set/up.

In the following e%tract, Glo&er an( Ha5ell refer to :riffith5s work and postulate a spectrum, with elements of the political constitution5 at one end and the legal constitution5 at the other. They suggest that, !p to t"e mi(6 @AAB , the #ritish con tit!tion ten(e( to%ar( t"e political. en( of the spectrum, %"erea ince t"en more an( more c"aracteri tic of a le$al con tit!tion. "a&e emer$e(= One pole )that is, end of the spectrum* repre ent t"e political con tit!tion. o Parliamentary o&erei$nty i t"e (ominant principle. o Mini ter "a&e &ery %i(e (i cretion, including over how much or little information to disclose, but they are called to acco!nt an( -ept in c"ec- )y Parliament+

o There are no recognised rights& it i !p to Parliament to protect ci&il li)ertie . o The '!(iciary are appointe( )y t"e e4ec!ti&e an( "o% (eference to parliamentary sovereignty and e%ecutive necessity. o There are fe% e4ternal c"econ the e%ecutive apart from Parliament, and the system is based on a "i$" (e$ree of tr! t t"at t"e e4ec!ti&e an( Parliament are t"e )e t '!($e of t"e p!)lic intere t. o The logic of this system is that solutions to political problems must be political themselves 6*la% i not an( cannot )e a !) tit!te for politic * )a reference to :riffith*. o Political con tit!tionali m, therefore, does not allo% for t"e entrenc"ment of ri$"t in t"e con tit!tion because there is no consensus, for e%ample, on what a #ill of ,ights should contain.

o ,ights are simply an e%pression of power relationships6=concealed political propaganda= ):riffith again* or =little more than the view held by the hegemonic group or officials with the power to decide=. o T"e proce of '!(icial re&ie% i al o not (emocratically ati factory& '!($e =resolve their disputes by the very democratic procedure they claim to !per e(e>ma'ority &ote*. o Further, responsibility for problem solving would be passed from Parliament to the 1udiciary 0and from an accountable body to an unaccountable one2.

!t the ot"er pole, which represents the le$al con tit!tion and the principle of legal consti/tutionalism, power is passed in this direction. o .egal constitutionalism is a theory of limite( $o&ernment %"ic" con train t"e !premacy of Parliament, sub1ecting it to a range of le$al c"ec- an( )alance and relocatin$ t"e final a!t"ority to interpret an( enforce f!n(amental la% in the 1udiciary. o Cere the logic is that Parliament cannot )e tr! te( al%ay to !p"ol( (emocratic &al!e an( "!man ri$"t . o This is not a particularly new idea in itself but has gained relevance recently for a number of reasons& first, the perceived ina)ility of t"e le$i lat!re to "ol( t"e e4ec!ti&e to acco!nt'

second, $lo)ali ation an( t"e increa in$ importance of international la%', third, the perception t"at '!($e are apolitical and as a result able to make o)'ecti&e (eci ion as opposed to partisan or politically motivated decisions. The basis of $o&ernance i no lon$er parliamentary o&erei$nty but the rights of the individual, and it is '!($e t"at interpret %"et"er or not t"e ri$"t of t"e in(i&i(!al are )ein$ !p"el(+ o In practice this involves the creation of tat!te %"ic" entrenc" certain ri$"t of individuals and organisations in the law beyond the reach of Parliament. o o There is $reater eparation of po%er and the '!(iciary con train le$i lati&e and e4ec!ti&e free(om )y mean of interpretin$ t"e tat!te .

o Speciali t con tit!tional %atc"(o$ are also set up 0such as the office of the Information "ommissioner2 to re$!late t"e e4ec!ti&e+

I con tit!tionali m a ! ef!l concept3 T"e ! e of t"e term con tit!tionali m rai e a n!m)er of (iffic!ltie + :o Eric #"! "al M!r-en &/ the way of understanding the constitutionalism by P. scholars The short answer is that public law scholars have used constitutionalism for three different purposes. o First, it fill t"e &oi( left )y t"e a) ence of a con tit!tional theory. Turpin and Tomkins note 0derisively and ahistorically2& *alt"o!$" %e lac- a $eneral t"eory of the constitution, )!t there has come down to us the idea of constitutionalism6of a constitutional order which ac-no%le($e t"e nece ary po%er of $o&ernment %"ile placin$ con(ition an( limit !pon it e4erci e*.

+econd, *con tit!tionali m* tep into t"e "oe of an a) ent con tit!tional (oc!ment. For #radley and Gwing =the a) ence of a %ritten con tit!tion ma-e all t"e more nece ary t"e e4i tence of a free political y tem in which official decisions are sub1ect to discussion and scrutiny by Parliament=. Third, *con tit!tionali m* i ! e( a an !m)rella term to co&er either the new con tit!tional ettlement between the 1udiciary, Parliament and :overnment, or (i tinct con tit!tional concept such as democracy, Parliamentary sovereignty, the rule of law, separation of powers, accountability, and legality 0constitutionality2, fundamental rights 0especially liberty2 and the avoidance of arbitrary power.

/ "onstitutionalism in UK/ an umbrella term to cover several principles )(urkens draws the following conclusion.* Con tit!tionali m i too )i$ a concept for the small boots that public law scholars are prepared to give it. !t present, the -rwellian *)elief in t"e la% a omet"in$ a)o&e t"e State* does not e4i t in t"e Unite( #in$(om. !t a formal le&el con tit!tionali m in t"e U# is an !m)rella term t"at con i t of t"e follo%in$ limbs& o it concentrates ultimate public power in one institution 0the o&erei$nty of Parliament8C o the government is organi ed by means of ma1ority rule 0repre entati&e $o&ernment2'

o the granting and e%ercise of public power is determined and controlled by constitutional principles, such as the rule of law, separation of powers, and respect for individual rights 0limite( $o&ernment2' o the government is held to account by Parliament for its policies and its conduct 0political acco!nta)ility2' o the government is held to account by an independent 1udiciary through the principal mechanism of 1udicial review 0le$al acco!nta)ility2.

"onstitutionalism is thus shorthand for the creation, carrying out, and control of public power. #ut removed from the constraints of UK public law discourse, however, constitutionalism is also a concept in its own right, with distinct yet malleable contours, and high/minded yet modest aspirations. $hereas the political constitution sets up public power,, constitutionJalism identifies its purpose. $hereas the rule of law concerns the law/based e%ercise of governmental power, constitutionalism creates a normative benchmark for the evaluation of government action. $hereas in other 1urisdictions with a +upreme or "onstitutional "ourt, constitutionalism is understood as the mechanism by which the ordinary political processes are disturbed or overridden, in the United Kingdom constitutionalism could only ever govern the legitimacy of government action.

/ "onstitutionalism is a concept beyond what UK can support A n!ance( an( normati&e (i c! ion of con tit!tionali m (oe not ta-e place in U# p!)lic la% c"olar "ip+ Gither entire new chapters e%pounding the concept of constitutionalism need to be written and inserted into public law te%tbooks, or its usage should be purged from the discussion. The meanin$ c!rrently attri)!te( to con tit!tionali m co!l( ea ily )e re(!ce( to the (octrinal corner tone of t"e e4i tin$ an( e&ol&in$ con tit!tion 0limited government, political and legal accountability2. Hintin$ at con tit!tionali m a a ne% )!t "ollo% &e el i con tit!tionally inacc!rate, analytically fallacious , and e%planatorily vacuous .

"onstitutionalism could determine in a comprehensive and legally/binding manner the grounds of legitimacy and the proper e%ercise of political power. Con tit!tionali m i not a t"e i for ri$"t 6fo!n(ationali m or a %ritten con tit!tion, especially not in the United Kingdom conte%t. !t its most compelling it is a normative thesis, a meta;)eyon(96 le$al (octrine an( a political i(eal t"at reconcile t"e *&irt!e a ociate( %it" t"e con tit!tion of $o&ernment authority and reasonable fears concerning the abuse of that authority=. Con tit!tionali m (oe not a %"et"er a propo al or (eci ion i con tit!tional, but %"et"er it "o!l( )e con tit!tional.

+uch 8uestions have for the past century fallen by the wayside in public law discourse. #ut the concern of con tit!tionali m can1 nay m! t1 )e a((re e( %it"in t"e !n(oc!mente( political or "i torical con tit!tion of the United Kingdom.

Parliamentary S!premacy This section e4amine parliamentary !premacy in t%o main %ay . +ome of the e%tracts and commentary deal with the 4technical5 aspects of the topic6that is, the concept an( t"e le$al a!t"ority relating to parliamentary supremacy !s well as dealing with these, we also look at the 4normative5 8uestion& i parliamentary !premacy a $oo( i(ea3 For the political an( le$al con tit!tionali t , parliamentary !premacy i t"e ma'or )attle$ro!n(.

The political con tit!tionali t )elie&e that parliamentary !premacy i , and should continue to be, the centrepiece of t"e 2riti " con tit!tion6that it enables our elected representatives to have the final say over the laws under which we live our lives. The le$al con tit!tionali t disagree, seeing parliamentary !premacy a a (an$ero! arran$ement that p!t o!r li)ertie at ri -6that it places no legal constraints on the politicians5 ability to make law.

@+ PARLIAMENTARY SUPREMACY AS A SET O< RULES Parliamentary !premacy i a cl! ter of r!le about the le$i lati&e competence. of t"e U# parliament, how courts should deal with !cts of Parliament made at different times that inadvertently or intentionally say contradictory things, and the powers of courts to consider whether a particular !ct of Parliament is a valid source of law.

P+ only to UK Parliament, not to devolution legislation and (inisters Parliamentary !premacy applie only to t"e U# Parliament, not to the other legislatures in the United Kingdom. The Scotti " Parliament1 Nort"ern Irelan( A em)ly1 an( National A em)ly for /ale are each create( )y an Act of t"e U# Parliament. They "a&e only t"o e le$i lati&e po%er t"at are conferre( on t"em+ o AXA General Insurance Ltd v HM Lord Advocate [2011]

Act of the Scotti " Parliament and of the Borthern Ireland !ssembly, and (easures of the Bational !ssembly for $ales, may )e "el( to )e in&ali( )y t"e co!rt 6 ultimately, the UK +upreme "ourt6if t"ey are not %it"in t"e le$i lati&e competence. Nor (oe parliamentary !premacy pre&ent co!rt from 0!a "in$ (ele$ate( le$i lation ;Mini ter9.

+ources of stating P+ !s we will see shortly, the rules on the !premacy of U# Act of Parliament are to be found in ca e la%, constitutional conventions, statute law, and elaborated in the %ritin$ of learne( a!t"or +

Parliament can makeKunmake any law and no one can strike it down Profe or Dicey was enthusiastic to the point of e%tremism about the importance of parliamentary supremacy as a defining feature of the #ritish constitution 0in contrast to other constitutional systems, which he regarded as inferior2& The principle of Parliamentary o&erei$nty means neither more nor less than this, namely, that Parliament )... * has, under the Gnglish constitution, the right to ma-e or !nma-e any la% %"ate&er' and, further, that no per on or )o(y i reco$ni e( )y t"e la% of En$lan( a "a&in$ a ri$"t to o&erri(e or et a i(e the legislation of Parliament. ! law may, for our present purpose, be defined as Iany rule which will be enforced by the "ourtsI.

The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described& Any Act of Parliament1 or any part of an Act of Parliament1 %"ic" ma-e a ne% la%1 or repeal or mo(ifie an e4i tin$ la%1 %ill )e o)eye( )y t"e Co!rt . The same principle, looked at from its negative side, may be thus stated& There is no person or body of persons who can, under the Gnglish constitution, make rules which override or derogate from an !ct of Parliament, or which 0to e%press the same thing in other words2 will be enforced by the "ourts in contravention of an !ct of Parliament

-ther rules to P+ There are rat"er more r!le t"an t"e t%o !$$e te( )y t"i e4tract from Dicey. If the rules applying today were to be codified, they might look something like the following. The U# Parliament may6 o ma-e la% 1 known as Act of Parliament, and o (efine %"at con tit!te an Act of Parliament+ Act of Parliament. was re(efine(, in certain circumstances, )y t"e Parliament Act @A@@ to incl!(e le$i lation $i&en royal a ent %it" t"e con ent of t"e Ho! e of Lor( The U# Parliament may ma-e la% on any matter whatsoever.

/ P+/ comply to international obligation and devolution !ct In making an !ct of Parliament, the UK Parliament may have regard to6 o the United Kingdom=s agreement in international law to comply %it" E!ropean Union la%, which includes a re8uirement that no provision in an !ct of Parliament shall infringe Guropean Union law, o the United Kingdom=s agreement in international law to comply with the Guropean "onvention on Cuman ,ights, which includes a re8uirement that no pro&i ion in an Act of Parliament "all infrin$e a Con&ention ri$"t, and o the constitutional convention that where legislative competence over a sub1ect matter has been devolved to the +cottish Parliament, the U# Parliament %ill not le$i late on t"at !)'ect matter %it"o!t t"e con ent of t"e Scotti " Parliament.

Sewel

onvention

/ G%press repeal and entrenchment !ny provision contained in an !ct of Parliament 0=!ct !=2 may )e repeale( or amen(e( )y an Act of Parliament enacte( at a later (ate 0=!ct #=2. Argument& Act which Bind the future Parliament It (oe not apply to a pro&i ion in Act A that e4pre ly tate t"at t"e pro&i ion may )e repeale( or amen(e( only6 o by a procedure in one or both Couses of Parliament other than the normal procedure for making !cts of Parliament, or o if the repeal or amendment is approved in a referendum, unless !ct # conforms to the stated re8uirements.

/ Implied repeal /"ere t"ere i a conflict )et%een pro&i ion contained in one !ct of Parliament 0=!ct "=2 and an !ct of Parliament enacted at a later date 0=!ct H=2, the provision in Act D i to )e enforce( an( applie( )y co!rt an( tri)!nal . T"o)!rn & S!n(erlan( City Co!ncil )EFFE* It (oe not apply %"ere6 o Act C i a con tit!tional tat!te, and o in making !ct H, t"e U# Parliament (i( not inten( to repeal or a)ro$ate Act C+ !n !ct of Parliament is a constitutional statute if it6 o relate to t"e le$al relation "ip )et%een citi5en an( tate in some general, overarching manner, or o enlar$e or (imini "e t"e cope of a f!n(amental con tit!tional ri$"t.

! con tit!tional tat!te may )e amen(e( only by e4pre %or( in a later Act of Parliament.

/ >urisdiction of courts over !cts of Parliament No co!rt or tri)!nal in t"e Unite( #in$(om "all call into 0!e tion t"e )in(in$ c"aracter of an !ct of Parliament as a source of law e4cept 6 o where, in accordance with the case law of the E!ropean Co!rt of :! tice, a court or tribunal is ati fie( t"at a pro&i ion containe( in an Act of Parliament is incompati)le %it" E!ropean Union la%, the co!rt or tri)!nal m! t (i apply t"at pro&i ion, and o the co!rt may con i(er whether, where an Act of Parliament 7*Act E*8 is given ,oyal !ssent %it"o!t t"e con ent of t"e Ho! e of Lor( , !ct G is an !ct of Parliament %it"in t"e meanin$ of t"e Parliament Act @A@@ 0as amended by the Parliament !ct 9?@?2. :ac- on & AG

-nly the !ct concerned with e%tend more than five year period legislation no available under this !ct The E!ropean Co!rt of :! tice has 1urisdiction to find that, in the making of an !ct of Parliament, the Unite( #in$(om "a faile( to f!lfil an o)li$ation under the GU treaties and may6 o re0!ire t"e Unite( #in$(om to comply %it" t"e '!($ment of t"e Co!rt, and o if the United Kingdom fails to take the necessary measures to comply with the "ourt=s 1udgment, may impo e a l!mp !m or penalty payment to )e pai( )y t"e Unite( #in$(om+

The E!ropean Co!rt of H!man Ri$"t has 1urisdiction to find that, in the making of an !ct of Parliament, the Unite( #in$(om "a &iolate( a &ictim* ri$"t under the Guropean "onvention on Cuman ,ights and may a%ar( *'! t ati faction* to t"e &ictim+ In accordance with section @ of the Cuman ,ights !ct 9??D, if a co!rt i ati fie( that a provision contained in an Act of Parliament i incompati)le %it" a Con&ention ri$"t, the court may make a (eclaration of incompati)ility 0but a (eclaration of incompati)ility (oe not affecti&e t"e &ali(ity, continuing operation or enforcement of the provision in respect of which it is given2.

$hat the courts have said about parliamentary supremacy The law reports contain numerous statements supporting the rules of parliamentary supremacy The following e%tracts provide a flavour of what the courts have said that they cannot do in relation to !cts of the UK Parliament.

/ "ourt refuse to look at the procedural of the !ct passed The first e%tract concerns a legal challenge made by a (r Pickin 0a campaigner to keep a railway line open in +omerset2, %"o faile( to per !a(e t"e La% Lor( t"at a pri&ate Act of Parliament "o!l( )e et a i(e because alle$e(ly fra!(!lent tatement "a( )een ma(e (!rin$ t"e parliamentary procee(in$ . 2riti " Rail%ay 2oar( & Pic-in6 Lor( Rei( In earlier times many learned lawyers seem to have believed that an !ct of Parliament could be disregarded in so far as it was contrary to the law of :od or the law of nature or natural 1ustice but since the supremacy of Parliament was finally demonstrated by the ,evolution of 9LDD any such idea has become obsolete )...*. The f!nction of t"e Co!rt i to con tr!e an( apply t"e enactment of Parliament.

T"e Co!rt "a no concern %it" t"e manner in %"ic" Parliament or it officer carryin$ o!t its +tanding -rders perform t"e e f!nction . !ny attempt to prove that they were misled by fraud or otherwise would necessarily involve an en8uiry into the manner in which they had performed their functions in dealing with the #ill which became the #ritish ,ailways !ct 9?LD. )...* For a century or more both Parliament and the "ourts have been careful not to act so as to cause conflict between them. !ny such investigations as the ,espondent seeks could easily lead to such a conflict, and I would only support it if compelled to do so by clear authority. #ut it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.

Commentary The co!rt . ref! al to loo- )e"in( t"e te4t of a tat!te to con i(er alle$ation of proce(!ral impropriety during the legislative process is sometimes referred to as ,t"e enrolle( 2ill r!le.+

/ "lear statute must be followed even contrary to the international law In the ne%t e%tract, (r "heney 0a peace campaigner2 challenged a ta% demand issued to him on various grounds. -ne was that the ta% demand under statute was contrary to an international treaty against nuclear weapons and was thereby invalid. C"eney & Conn 7In pector of Ta4e 8 )9?LD* The submission is that the assessments are invalid because it is to be taken that what is collected will be, in part, applied in e%penditure on the armed forces and devoted to the construction of nuclear weapons with the intention of using those weapons if certain circumstances should arise.

It is conceded for the purposes of this case that a substantial part of the ta%es for the years that I have mentioned was allocated to the construction of nuclear weapons. The issue therefore becomes whether the use of )ta%* for the construction of nuclear weapons, with the intention of using them should certain circumstances arise, invalidates the assessments. )...* I shall deal first with the relationship of statute law to international law and international conventions.

First, international law is part of the law of the land, but it yields to statute. o That is made clear by the case of "ollco Healings .td v Inland ,evenue "ommissioners, where Miscount +imonds, 8uoted with approval, and in accordance with the decision of the Couse of .ords in that case, (a%well on the Interpretation -f +tatutes 09Fth edn2, p 9@D. I 8uote& I#ut if t"e tat!te i !nam)i$!o! 1 it pro&i ion m! t )e follo%e( e&en if t"ey are contrary to internaDtional la%+E o It is therefore very understandable why the ta%payer in this case relies primarily, at any rate, not on a conflict between international law in general and the statute, but on the conflict between the ):eneva "onvertions* !ct of 9?A;, and its reference to ratification, and another statute, the Finance !ct 9?L@.

Secon(ly, conventions which are ratified by an !ct of Parliament are part of the law of the land' and, thirdly, con&ention %"ic" are ratifie(1 )!t not )y an Act of Parliament, which would thereby give them statutory force, cannot pre&ail a$ain t a tat!te in !nam)i$!o! term . )... * It is, I may add, the <ueen in Parliament and not the <ueen independently of Parliament, acting as the e%ecutive through the cabinet, who makes what is law in this land.

/ Parliament can against fundamental right if put into e%press way to do so In the ne%t e%tract6which is fre8uently 8uoted by courts6the 8uestion before the .aw .ords was whether it was lawful for prison governors to refuse permission for prisoners to have oral interviews with 1ournalists as part of a campaign to show that there has been a miscarriage of 1ustice. The governors relied on the Prison ,ules, which are delegated legisla/tion made under the Prison !ct 9?AE, so the case was not directly relevant to parliamentary supremacy' .ord Coffmanns words were therefore obiter dicta. e4 parte Simm an( O*2rien )9???* Lor( Hoffmann Parliamentary o&erei$nty mean t"at Parliament can1 if it c"oo e 1 le$i late contrary to f!n(amental principle of "!man ri$"t + The Cuman ,ights !ct 9??D will not detract from this power.

T"e con traint !pon it e4erci e )y Parliament are !ltimately political1 not le$al. #ut the principle of legality means that Parliament must s8uarely confront what it is doing and accept the political cost+ <!n(amental ri$"t cannot )e o&erri((en )y $eneral or am)i$!o! %or( . This is because there is too great a risk that the full implications of their un8ualified meaning may have passed unnoticed in the democratic process. In the absence of e%press language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be sub1ect to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which e%ist in countries where the power of the

legislature is e%pressly limited by a constitutional document.

Commentary The .aw .ords held that the 9?AE !ct did not permit the Prison ,ules to restrict access to 1ournalists in this way. Bote .ord Coffmann5s firm assertion that "a( it (one o in clear %or( 1 Parliament "a t"e po%er to ma-e primary le$i lation contrary to )a ic ri$"t 6 such as those recogni ed by international human rights treaties, including the Guropean "onvention, including on Cuman ,ights 0G"C,2. #ut also important is what he says about 4the principle of legality56a concept to which we return in "hapter 3, in discussing , v +ecretary of +tate for the Come Hepartment, e% parte Pierson.

HOL said the same The ne%t illustration is taken from a test case in which pro/hunting campaigners sought to argue that the Cunting !ct EFF@ was not an !ct of Parliament. It "a( recei&e( Royal A ent %it"o!t t"e con ent of t"e Ho! e of Lor( under the terms of the Parliament !cts 9?99 and 9?@?. :ac- on % Her Ma'e ty* Attorney General )EFFA* 2arone Hale of Ric"mon( The concept of Parliamentary sovereignty which has been fundamental to the constitution of Gngland and $ales since the 9;th century 0I appreciate that +cotland may have taken a different view2 mean t"at Parliament can (o anyt"in$+ The co!rt %ill, of course, (ecline to hold that Parliament "a interfere( %it" f!n(amental ri$"t !nle it "a ma(e it intention cry tal clear+

The courts will treat with particular suspicion 0and might even re1ect2 any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all 1udicial scrutiny. Parliament has also, for the time being at least, limited its own powers by the Guropean "ommunities !ct 9?;E and, in a different way, by the Cuman ,ights !ct 9??D. It is possible that other 8ualifications may emerge in due course. In general, however, the constraints upon what Parliament can do are political and diplomatic rather than constitutional.

/ Hevolution Parliament is not supreme make the court5s task easier In the final e%tract, the UK +upreme "ourt had to decide whether the +cottish Parliament has e%ceeded its legislative competence in enacting the Hamages 0!sbestos/related "onditions2 0+cotland2 !ct EFF?. AFA General In !rance Lt( % HM A(&ocate )EF99* Lor( Hope o AF. The 8uestion %"et"er t"e principle of t"e o&erei$nty of t"e Unite( #in$(om Parliament i a) ol!te or may be sub1ect to limitation in e%ceptional circumstances is till !n(er (i c! ion+ o For .ord #ingham, writing e%tra1udicially, the principle i f!n(amental an( in "i opinion, as the '!($e (i( not )y t"em el&e e ta)li " t"e principle, it was not open to t"em to c"an$e it& The ,ule of .aw, p. 9L;.

o .ord Beuberger of !bbotsbury, in his .ord !le%ander of $eedon lecture, $ho are the masters now7 0L !pril EF992, said at para. ;3 that, alt"o!$" t"e '!($e "a( a &ital role to play in protectin$ in(i&i(!al against the abuses and e%cess of an increasingly powerful e%ecutive, )!t t"e '!($e co!l( not $o a$ain t t"e %ill of Parliament a e4pre e( t"ro!$" a tat!te+ o Lor( Steyn on t"e ot"er "an( recalled at the outset of his speech in >ackson, para. ;9, the warning that .ord Cailsham of +t (arylebone gave in The Hilemma of Hemocracy 09?;D2, p 9EL a)o!t t"e (ominance of a $o&ernment electe( %it" a lar$e ma'ority o&er Parliament. o This process, he said, had continued and strengthened ine%orably since .ord Cailsham warned of its dangers.

o This was the conte%t in which he said in para. 9FE that the S!preme Co!rt mi$"t "a&e to con i(er %"et"er '!(icial re&ie% or t"e or(inary role of t"e co!rt %a a con tit!tional f!n(amental which e&en a o&erei$n Parliament actin$ at t"e )e"e t of a complaisant Couse of "ommons co!l( not a)oli "+ A9. $e do not need, in this case, to resolve the 8uestion how these conflicting views about the relationship between the rule of law and the sovereignty of the United Kingdom Parliament may be reconciled. The fact that %e are (ealin$ "ere %it" a le$i lat!re t"at i not o&erei$n relie&e ! of t"at re pon i)ility. It al o ma-e o!r ta - t"at m!c" ea ier+

Political critici m of le$i lation / Cuman right restraint proposal can be heavily debated #oth .ord Coffmann and #aroness Cale of ,ichmond, in these e%tracts, draw a distinction between the political constraints on Parliament and legal limitations. It is certainly the case that when $o&ernment 2ill pro$re t"ro!$" Parliament t"ey are often critici5e( a offen(in$ con tit!tional principle or impinging on human rights. These are point ma(e in (e)ate )y MP an( peer , and containe( in report i !e( )y t"e Ho! e of Lor( Con tit!tion Committee and the :oint Committee on H!man Ri$"t . Some of t"e e critici rn t!rn into ma'or p!)lic campai$n 0as was the case in EFFD, when the government sought new powers to

detain terrorist suspects without charge for up to forty/two days2.

/ Glection show the result of Parliament did (embers of Parliament may also have the sense that a $eneral election i aro!n( t"e corner+ :ennin$ put it as follows& )... I*f t"ey %i " for re6election, t"ey may )e calle( !pon to $i&e an acco!nt of t"eir action , t"ey m! t con i(er in t"eir action %"at t"e $eneral opinion of t"em may )e. Parliament passes many laws that people do not want. #ut it never passes any laws which any substantial section of the population violently dislikes.

/ >udges recognise practical reality that Parliament supremacy have to consider citi ens5 view The '!($e reco$ni5e t"i practical reality& 4Parliamentary o&erei$nty i an empty principle if le$i lation i pa e( %"ic" i o a) !r( or o !naccepta)le t"at t"e pop!lace at lar$e ref! e to reco$ni5e it a la%. o :ac- on & Her Ma'e ty* Attorney General

/ +trong political opposition can make Parliament to think properly If political oppo ition i !fficiently tron$, the $o&ernment may )ac- (o%n an( %it"(ra% t"e le$i lati&e propo al 0as it did with the !"# day detention scheme2. -nce enacted, an !ct of Parliament may face continued political opposition including ci&il (i o)e(ience6in which people ref! e to o)ey t"e la%>or e&en &iolent (emon tration 0as occurred against the 4poll ta$% legislation in &''(2.

/ #ut it is political but not legal All of t"i critici m i political' there is a general consensus among ministers, parliamentarians, 1udges, and civil servants that whatever maybe the merits of such political criticisms, #ills maybe given royal assent to become !cts of Parliament, t"e le$ality of %"ic" cannot )e c"allen$e( in t"e co!rt +

/"at $o&ernment ay a)o!t parliamentary !premacy / P+ still central value in constitution Parliamentary !premacy contin!e to )e re$ar(e( )y mo t politician and commentators as a central c"aracteri tic of t"e U# con tit!tion+ Con tit!tional reform propo al ma(e )y t"e La)o!r $o&ernment of 9??;/EF9F often sought to a !re people t"at t"e c"an$e in 0!e tion %o!l( not !n(ermine t"e principle, as in this e%tract from the :reen Paper on a #ritish #ill of rights and responsibilities& Parliamentary o&erei$nty re i(e at t"e "eart of o!r con tit!tional arran$ement . !nd Parliament, rightly, claims le$itimacy to e4erci e po%er on )e"alf of t"e people who elect it, ma-in$ la% for t"e co!rt to apply, and "ol(in$ t"e e4ec!ti&e

to acco!nt6indeed, providing authority for the e%ecutive to govern.

/ Gven GU law intrude UK, still it is agreement by Parliament and can repealed anytime Similar a !rance %ere $i&en 0by the then "onservative government2 in the run/up to the Unite( #in$(om acce ion to t"e E!ropean "ommunities in 9?;3. !lthough GU law overrides any inconsistent national law, the argument often advanced is that this is )eca! e Parliament1 )y t"e E!ropean Comm!nitie Act @AGH1 "a a$ree( to t"i arran$ement' it would be open to Parliament to repeal the 9?;E !ct if the United Kingdom were to decide to withdraw from 0what is now2 the GU.

Ar$!ment& +ome against P+ by upholding the ,-. !gainst the background of a campai$n a$ain t a contro&er ial ,o! ter cla! e. containe( in a 2ill, a Li)eral Democrat peer an( prominent <"6a le$al con tit!tionali t. %"o i no fan of parliamentary !premacy 0he has called it an 4authoritarian doctrine526 a -e( t"e $o&ernment for it &ie% of parliamentary !premacy in EFF@. The cla! e in t"e Immi$ration an( A yl!m 2ill %o!l( "a&e remo&e( t"e '!ri (iction of t"e co!rt to re&ie% '!(icially many decisions made by officials and ministers in relation to immigration and asylum applications if t"e $o&ernment not e&ent!ally a$ree( to mo(ify it. The !ttorney :eneral5s answer accords with the generally accepted understanding of the status of parliamentary supremacy and the legislative powers of Parliament.

A (ifferent approac" in Scotlan(3 .ord "opper held that no +cotland constitution show the principle P+ There is a strand of writing in +cotland that advances the argument that parliamentary !premacy i a partic!larly En$li " concept, with no e0!i&alent in t"e la% an( con tit!tion of Scotlan( prior to t"e @GBG !nion. !s you read the following e%tract, consider what the implications of this might be for the constitution of the whole United Kingdom.

Gafin Little& Parliamentary sovereignty has, both in political and legal terms, long been a matter of controversy in +cotland. In the conte%t of +cottish constitutional reform, unionists have often viewed parliamentary sovereignty as an important symbol of $estminster=s claim to political supremacy over +cotland. Importantly, however, the idea that an alterJnative concept of popular sovereignty operates in +cotland, whilst obviously of great significance to nationalists, also has a broad, non/ party/political currency north of the border.= )... * )... I*t should be noted that Hicey=s arguments have attracted criticism in the +cottish courts. For +cottish constitutional lawyers, the issue of parliamentary sovereignty has historically and conceptually been associated with important 8uestions regarding the legal status of the Treaty of Union of 9;F; between +cotland and Gngland. "an the Treaty

of Union, which created a new entity, the Parliament of :reat #ritain, and, inter alia, purports to guarantee the continued e%istence of certain historic +cottish institutions, prevail over inconsistent !cts of Parliament as a form of fundamental or higher law7 $as, in >H# (itchell=s phrase, the UK Parliament =born unfree=7 !s is well known, t"e tat! of parliamentary o&erei$nty %a con i(ere( in t"e Scotti " co!rt by Lor( Cooper of "ulross in the 9?A3 case of MacCormic- & T"e Lor( A(&ocate. The pursuer in the action was >ohn (ac"ormick, who was then a leading figure in +cottish politics and the campaign for +cottish Come ,ule. Ce challenged the new <ueen=s title as =Gli abeth the +econd= on the basis that it was, inter alia, incorrect historically 0there has never been an Gli abeth the First in +cotland2, and in conflict with !rticle I of the Treaty of Union. In his decision, .ord "ooper stated&

o The principle of !nlimite( o&erei$nty of Parliament i a (i tinctly En$li " principle which has no co!nterpart in Scotti " con tit!tional la%. o It derives its origin from "oke and #lackstone, and was widely popularised during the nineteenth century by #agehot and Hicey )...* "onsidering that the Union legislation e%tinguished the Parliaments of +cotland and Gngland and replaced them by a new Parliament. o I "a&e (iffic!lty in eein$ %"y it "o!l( "a&e )een !ppo e( t"at t"e ne% Parliament of Great 2ritain m! t in"erit all t"e pec!liar c"aracteri tic of t"e En$li " Parliament but none of t"e Scotti " Parliament, as if all that happened in 9;F; was that +cottish representatives were admitted to the Parliament of Gngland. o That is not what was done.

Ar$!ment& P+ still e%ist in relation to T.Union !ct $hatever may have motivated .ord "ooper=s comments on sovereignty, it must be recognised that their legal significance is unclear and open to 8uestion on four main grounds. First, "o%e&er m!c" Lor( Cooper may "a&e %i "e( it ot"er%i e, )!t it i a matter of political fact t"at, although both the +cottish and Gnglish Parliaments ceased to e%ist in 9;F;, the ne% Parliament of Great 2ritain %a in reality t"e En$li " Parliament %it" a mall n!m)er of a((iDtional Scotti " repre entati&e . Secon(ly, a number of i$nificant reform %"ic" are contrary to t"e Treaty of Union have been ma(e )y tat!te o&er t"e cent!rie .

T"ir(ly, his remarks were obiter dicta, and were 8ualified by the comment that t"ere %a no a!t"ority for t"e &ie% t"at t"e (ome tic co!rt "a( t"e '!ri (iction to (etermine t"e &ali(ity of tat!te )y reference to Treaty pro&i ion . Fourthly, alt"o!$" t"e Scotti " co!rt "a&e1 ince MacCormic-, left open t"e 0!e tion of %"et"er le$i lation ee-in$ to a)oli " important national in tit!tion 0such as the "ourt of +ession or the "hurch of +cotland2 co!l( )e in&ali( in term of t"e Treaty of Union, but t"ey "a&e )een mo t !n%illin$ to claim the po%er to re&ie% t"e le$al &ali(ity of Act of Parliament+

H+ /HAT IS THE SOURCE O< PARLIAMENTARY SUPREMACY* +ources are important/ if in common law, then 1udiciary can change it +o far, we have spoken broadly about 4the rules5 of parliamentary supremacy. Caving now seen the general scope of these rules, more thought needs to be given to the source of these rules. !s we have seen, the elements of the rulebook of the UK constitution6in the absence of a codified constitution 6are to be found in the following& o statute law' o common law' and o constitutional conventions. Into which, if any, of these do the parliamentary supremacy rules fall7

/or-in$ o!t t"e ri$"t an %er i important for practical1 a %ell a aca(emic1 rea on . For e%ample, if %e ay t"at t"ey are common la% r!le 1 it would seem to follow that the '!(iciary co!l( c"an$e t"e r!le 0as they can with common law rules in other fields of law such as contract and tort2. If1 "o%e&er1 t"e r!le are of ome ot"er -in(1 t"en it i not clear t"at t"e '!(iciary %o!l( )e a)le to intro(!ce a c"an$e+

+tatute law7 The basic rules of parliamentary supremacy are not, at present, set out in an !ct of Parliament6but could they be7 +ome commentators take the view that this would be impossible. / Sir :o"n Salmon(&/ no statute give this power, only historical !ll rules of law have historical sources. !s a matter of fact and history they have their origin somewhere, though we may not know what it is. #ut not all of them have legal sources. $ere this so, it would be necessary for the law to proceed ad infinitum, in tracing the descent of its principles. It is re8uisite that the law should postulate one or more first causes, whose operation is ultimate and whose authority is underived )... *

The rule that a man may not ride a bicycle on the footpath may have its source in the by/laws of a municipal council' the rule that these by/laws have the force of law has its source in an !ct of Parliament. #ut %"ence come t"e r!le t"at Act of Parliament "a&e t"e force of la%3 This is legally ultimate' it o!rce i "i torical only1 not le$al )...*. It i t"e la% )eca! e it i t"e la%, and for no other reason that it is possible for the law itself to take notice of. No tat!te can confer t"i po%er !pon Parliament1 for t"i %o!l( )e to a !me an( act on t"e &ery po%er t"at i to )e conferre(.

/ Gric #arendt& Heclaratory statute would add nothing to legislative capacity Baturally, Parliament could declare by an !ct of Parliament that it is legally sovereign and that it has unlimited entitlement to enact any legislation it likes. 2!t !c" a (eclaratory tat!te %o!l( not a(( anyt"in$ to it le$i lati&e capacity. Parliament can "ar(ly confer con tit!tional a!t"ority on it elf )y it o%n enactment.

/ Gven no statute no affect the P+ None of t"i , however, affect t"e po%er of Parliament to ac-no%le($e in le$i lation that it retains its law/making power. +o, for e%ample, the follo%in$ pro&i ion appear in t"e Scotlan( Act @AAI in + HI1 which confer le$i lati&e po%er on t"e Scotti " Parliament& 4This section does not affect t"e po%er of t"e Parliament of t"e Unite( #in$(om to ma-e la% for Scotlan(

Common la%3 If the rules of parliamentary supremacy cannot be, and have not been, set out in statute, then does it make sense to say that they are rules of the common law7 Gric #arendt&/ "ourt give rise P+ thru case law $hat is the source of the United Kingdom Parliament=s legislative authority and what is the scope of that power7 The short answer is that the o!rce of it le$i lati&e a!t"ority i t"e common la%, the uncodified rules of law form!late( )y '!($e %"en t"ey (eci(e partic!lar ca e . Further, it i for t"e co!rt to (etermine t"e cope of t"at a!t"ority+ T"ey m! t (eci(e, for instance, whether Parliamentary le$i lati&e a!t"ority pre&ail o&er or $i&e %ay to incon i tent r!le of E!ropean Comm!nity la% )...*.

It is largely for this reason the United Kingdom constitution can be described, among other things, as a common law constitution. The law reports are full of statements to the effect that it is the (!ty of t"e co!rt to $i&e effect to enactment of Parliament, or that they cannot )e c"allen$e( for infrin$in$ ome f!n(amental ri$"t or t"e r!le of international la%+ For e%ample, a co!rt ea ily re'ecte( t"e ar$!ment t"at it %a !ncon tit!tional for Parliament to introduce the offence of incitement to racial "atre(, because the law limite( t"e f!n(amental ri$"t to free(om of peec". :!($e "a&e emp"a i5e( t"at t"e Unite( #in$(om Parliament "a !nlimite( le$i lati&e !premacy, or that it is sovereign. It i t"erefore t"e co!rt 1 rat"er t"an Parliament it elf, which have

form!late( t"e principle %"ic" i t"e corner6 tone of t"e !nco(ifie( con tit!tion of the United Kingdom. A con tit!tional con&ention3 / "ourt apply the P+ rules so it may not be convention The idea that parliamentary supremacy might be a con&ention can )e re'ecte( on t"e )a i t"at one of t"e (efinin$ c"aracteri tic of con&entions is that they are not '! ticia)le an( enforcea)le )y t"e co!rt . Clearly1 t"e co!rt apply t"e parliamentary !premacy r!le +

Some ot"er cate$ory of norm3 +everal writers argue that parliamentary supremacy is in a class of its own. / Cistorical source !s we have seen, Sir :o"n Salmon( 09DLE/9?E@2E? wrote that it 4)... * i le$ally !ltimate' its o!rce i "i torical only, not le$al )...*. It i t"e la% )eca! e it i t"e la%*

/ #eyond the reach of statute can state the P+, as authority of P+ is on the 1udicial obedience, if no statute can establish court obey the !ct then no statute can abolish it, all this based on political fact Profe or /illiam /a(e 79?9D/ EFF@23F suggested that it i t"e ,!ltimate political fact.& !n orthodo% Gnglish lawyer, brought up consciously or unconsciously on the doctrine of parliamentary sovereignty stated by "oke and #lackstone, and enlarged upon by Hicey, could e%plain it in simple terms. Ce would say that it meant merely that no !ct of the sovereign legislature 0composed of the <ueen, .ords and "ommons2 could be invalid in the eyes of the courts' that it was always open to the legislature, so constituted, to repeal any previous legislation whatever' that therefore no Parliament could bind its successors' and that the legislature had only one process for enacting sovereign legislation, whereby it was declared to be the 1oint !ct of the "rown, .ords and "ommons in Parliament assembled.

Ce would probably add that it is an invariable rule that in case of conflict between two !cts of Parliament, the later repeals the earlier. If "e %ere t"en a -e( %"et"er it %o!l( )e po i)le for t"e Unite( #in$(om to *entrenc"* le$i lation 6for e%ample, if it should wish to adopt, a #ill of ,ights which would be repealable only by some specially safeguarded process6he would answer that under Gnglish law t"i i a le$al impo i)ility= it i ea y eno!$" to pa !c" le$i lation, but since that legislation, li-e all ot"er le$i lation1 %o!l( )e repeala)le )y any or(inary Act of Parliament the special safeguards would be legally futile.

This is merely an illustration of the rule that one Parliament cannot bind its successors. It follows therefore that there is one, and only one, limit to Parliament=s legal power& it cannot detract from its own continuing sovereignty. It is tempting to add that Parliament=s power is therefore inalienable, but that is to anticipate a 8uestion which must be investigated later on. For, leaving that point aside, we have already entered the area of controversy. Gven the proposition that Gnglish law knows no means of =entrenching= sovereign legislation, which most Gnglish lawyers would accept as a self/evident truth, has been 8uestioned or denied by leading authorities. )... *

;l9f no tat!te can e ta)li " t"e r!le t"at t"e co!rt o)ey Act of Parliament, imilarly no tat!te can alter or a)oli " t"at r!le+ The r!le i a)o&e an( )eyon( t"e reac" of tat!te )... * because it is it elf t"e o!rce of t"e a!t"ority of tat!te+ T"i p!t it into a cla )y it elf amon$ r!le of common la% and the apparent para(o4 t"at it i !naltera)le )y Parliament t!rn o!t to )e a tr!i m . The r!le of '!(icial o)e(ience i in one en e a r!le of common la%, !ut in another sense"which a##lies to no other rule of common law6it i t"e !ltimate political fact upon which the %"ole y tem of le$i lation "an$ . Le$i lation o%e it a!t"ority to t"e r!le& the r!le (oe not o%e it a!t"ority to le$i lation.

To ay t"at Parliament can c"an$e t"e r!le1 merely )eca! e it can c"an$e any ot"er r!le1 i to p!t t"e cart )efore t"e "or e ;not in or(er9+ <or t"e relation "ip )et%een t"e co!rt of la% an( Parliament i fir t an( foremo t a political reality+

/ P+ is not the creature of common law, it is consensus btw whole state institution Profe or Gol( %ort"y6an !ustralian academic6argues that it i a mi ta-e to t"in- of t"e (octrine of parliamentary !premacy a a creat!re of common la%& )...* the (octrine of parliamentary o&erei$nty i con tit!te( )y a con en ! amon$ t"e enior official of all )ranc"e of $o&ernment. It %a not 7a "i tory confirm 8 ma(e )y t"e '!($e alone+ It content i fi4e( )y official con en ! , and it is unclear insofar as there is no consensus. It cannot )e c"an$e( !nilaterally by any one branch of government, unless it is part of the consensus that it can be so changed, and there is little evidence that it is.

-f course, any change to a rule of recognition must start somewhere& omeone "a to initiate t"e re0!i ite c"an$e in con en ! . The co!rt can attempt to initiate c"an$e1 )!t t"ey can !ccee( only if t"e ot"er )ranc"e of $o&ernment are %illin$ to accept it+

Commentary $ Court had no democratic in#ut% same to Parliament if tried to entrenched the future Parliament Gol( %ort"y suggests that it %o!l( )e %ron$ for t"e co!rt to alter parliamentary !premacy because 4they could impose all kinds of limits on Parliament=s authority %it"o!t any (emocratic inp!t.. #ut, e8ually, it %o!l( )e %ron$ for Parliament to attempt to do so& 4)l9f Parliament had such authority, a political party with temporary control of )ot" Ho! e co!l( protect it partisan policies, enacted into law, from amen(ment or repeal )y ma'oritie in f!t!re Parliament , %"ic" %o!l( al o )e !n(emocratic*

J+ ENTRENCHMENT= CAN AN ACT O< PARLIAMENT 2E MADE THAT 2INDS <UTURE PARLIAMENTS3 Gntrenched against P+ This section e%amines three 8uestions, as follows. o In %"at circ!m tance mi$"t it )e (e ira)le to entrenc" an !ct of Parliament6that is, make it more difficult than normal for that !ct to be repealed or amended7 o /"at mec"ani m might be used to do this7 o I it po i)le to entrenc" le$i lation in the UK constitutional system7 It is a matter of le$al contro&er y as to whether this can actually be achieved in the #ritish constitutional system, )eca! e t"e practice of ,entrenc"ment. can )e t"o!$"t to )e incom6pati)le %it" parliamentary !premacy+

/ (eaning of entrenchment In the ne%t e%tract, Professor +aunders, an !ustralian academic, e%plains what is meant )y t"e term entrenc"ment+ C"eryl Sa!n(er & Entrenc"ment !)'ect t"e con tit!tion or le$i lation to %"ic" it applie to an alteration proce(!re t"at i more (iffic!lt t"an t"at for or(inary la% + In e%treme cases, it may pre&ent alteration alto$et"er+ (echanisms for entrenchment typically range from re0!irement for pecial parliamentary ma'oritie to ! e of t"e referen(!m.

Typically, the pro&i ion t"at pre6 cri)e t"e pecial alteration proce(!re i it elf entrenc"e(, to pre&ent it from )ein$ altere( )y or(inary la%, thus circumventing the effect of entrenchment.

/ E "ontroversial (eanings of supremacy& "urrent Parliament cannot bind by previous one and "urrent Parliament can protect its own legislation C"eryl Sa!n(er & There is no constitutional obstacle to entrenchment in states in which prevailing political theory accepts that the people is sovereign and can confer a system of government on itself. Diffic!lty may ari e, however, where, as in the Unite( #in$(om, t"eory a i$n le$al o&erei$nty to t"e parliament.

There are at lea t t%o po i)le !n(er tan(in$ of what o&erei$nty involves in this conte%t. o First, it might mean that the le$i lati&e a!t"ority of t"e c!rrent parliament can ne&er )e con traine( )y legislation of an earlier parliament, ma-in$ entrenc"ment impo i)le+ o +econdly, it might mean that the authority of a c!rrent parliament e4ten( e&en to protectin$ it o%n le$i lation from f!t!re c"an$e, albeit at cost to the authority of later parliaments.

/ UK/ continuing sovereignty in understanding but self/embrace sovereignty is practice C"eryl Sa!n(er & In The "oncept of .aw 0-%ford& -%ford University Press, 9?L92, HLA Hart described the (i tinction a )ein$ )et%een *contin!in$* an( * elf6em)racin$* o&erei$nty+ The ,contin!in$. remain t"e ort"o(o4 !n(er tan(in$ in t"e Unite( #in$(om, fa&o!re( )y A? Dicey and some early twentieth century case law. The latter applies in most other countries in the #ritish constitutional tradition. "omparison is complicated by the colonial origins of the constitutional arrangements in these states. Ne&ert"ele 1 it i increa in$ly (iffic!lt to reconcile contin!in$ o&erei$nty %it" act!al practice in t"e Unite( #in$(om1 and the 8uestion should be regarded as unsettled.

/ Factors decide whether P+ is continuing Its resolution is affected by various factors. First, an entrenc"in$ pro&i ion t"at pre cri)e t"e manner or t"e form in which amending legislation must be passed can )e !n(er too( a alterin$ t"e compo ition or t"e proce(!re of a f!t!re parliament for this purpose, rat"er t"an limitin$ parliamentary a!t"ority. o This line of thought reconcile t"e po i)ility of entrenc"ment %it" t"e contin!in$ &ie% of parliamentary o&erei$nty, although in a highly artificial way.

Secon(ly, the Parliament Act of @A@@ an( @AKA have already altere( t"e compo ition of parliament for ome p!rpo e . o /"ile t"e e Act ma-e le$i lation ea ier1 rat"er t"an more (iffic!lt, )!t it has been "el( t"at they create an a((itional primary le$i lation6 ma-in$ proce(!re, and some 1udicial comments offer f!rt"er enco!ra$ement to t"e po i)ility of entrenc"ment+ T"ir(ly, the manner in which the Unite( #in$(om $i&e effect to it o)li$ation !n(er E!ropean la% in the Guropean "ommunities !ct 9?;E appears to have ettle( t"at one parliament can con train a later parliament at least in relation to the form in %"ic" alteration to it le$i lation are ma(e. <inally, acceptance of entrenc"ment would have implication for the rule that co!rt %ill not loo- )e"in( an Act of

Parliament to e4amine t"e proce(!re )y %"ic" it %a ma(e.

T"e (e ira)ility 7or ot"er%i e8 of entrenc"in$ le$i lation The need to entrench Entrenc"ment mi$"t )e t"o!$"t to )e (e ira)le to pre&ent f!n(amental con tit!tional c"aracteri tic an( ri$"t )ein$ repeale( or amen(e( at a later date. !t the turn of the seventeenth and eighteenth centuries, a central concern in the negotiations over the union of En$lan( an( Scotlan( %a t"e nee( to en !re1 ,in all time comin$., t"e tat! of t"e Prote tant fait" 0in the wake of generations of conflict between the Protestant and "atholic branches of the "hristian "hurch2. !ccordingly, the Union with +cotland !ct 9;FL sought to do this. In recent years, call for entrenc"e( le$i lation "a&e relate( to t"e po i)ility of a 2ill of ri$"t , which would pro&i(e tron$er protection t"an i c!rrently offere( )y t"e 7!nentrenc"e(8 H!man Ri$"t Act @AAI.

Ar$!ment& Gntrench against P+ This is a$ain t a )ac-$ro!n( in %"ic" enior politician in t"e La)o!r an( Con er&ati&e Parties have called into 8uestion the continued e%istence of the Cuman ,ights !ct6for e%ample, it was reported that 4Havid "ameron )... * called for the Cuman ,ights !ct to be scrapped outright for the first time amid mounting anger that the controversial law had allowed the killer of the head teacher Philip .awrence to escape deportation.5 The ar$!ment a$ain t t"e (e ira)ility of entrenc"ment 0in the conte%t of a possible #ill of rights2 were considered by a parliamentary committee in !ugust EFFD.

>oint "ommittee on Cuman ,ights +ession EFF;/FD& E33. ! number of witnesses to our in8uiry addressed the 8uestion of whether a #ill of ,ights should be entrenched. They e%pressed a range of views. +ome favoured entrenchment in order to ensure the superiority of a #ill of ,ights and protect it from easy amendment by Parliament. -ne witness suggested that entrenchment is re8uired to protect the power of the UK courts to ad1udicate upon claimed violations of human rights and ensure an effective remedy.

E3@. -n the other hand, other witnesses suggested that entrenc"ment may not )e (e ira)le+ Profe or Harlo% oppo e( entrenc"ment because in her view t"e common la% com)ine( %it" parliamentary o&erei$nty allo% ri$"t to )e ea ily !p(ate( a ociety c"an$e , although she recognised that this could also mean that rights may be swept away more easily. E3A. /e are not in fa&o!r of entrenc"in$ a U# 2ill of Ri$"t a$ain t f!t!re amen(ment or repeal by re8uiring that any such amendments or repeal must satisfy a special procedure, such as approval by a special parliamentary ma1ority or by the people in a referendum. In our view !c" form of entrenc"ment are not compati)le %it" o!r tra(ition of parliamentary (emocracy which has carefully pre er&e( t"e free(om of eac" Parliament to

le$i late accor(in$ to it &ie% of t"e p!)lic intere t+ Ho% mi$"t entrenc"ment )e ac"ie&e(3 !ssuming for a moment that it is possible to entrench !cts of Parliament in the UK 0and be clear, the 1ury is out on this2, the following are some of the main ways in which this might be attempted.

/ Gntrench to the substantive rather than procedural First, t"ere co!l( )e a imple tatement that a %"ole Act or ection in an Act shall contin!e in force for all time in t"e f!t!re+ In the following provision, the limitation %a !) tanti&e rat"er t"an proce(!ral. The ne$otiator of t"e !nion )et%een En$lan( an( Scotlan( were intent on en !rin$Lor all time t"e ,f!n(amental an( e ential. place of t"e Prote tant reli$ion in the new United Kingdom.

Union %it" Scotlan( Act @GBM1 art FF?1 +? 7emp"a i a((e(8 That the said !ct passed in this present +ession of Parliament intituled !n !ct for securJng the "hurch of Gngland as by .aw established and all and every the matters and things therein contained !nd also the said !ct of Parliament of +cotland intituled !ct for securing the Protestant ,eligion and Presbyterian "hurch :overnment with the Gstablishment in the said !ct contained be and "all for e&er )e "el( and ad1udged to be and observed as Fundamental and Gssential "onditions of the said Union !nd shall in all time comin$ be taken to be and are hereby declared to be essential and fundamental parts of the said !rticles and Union !nd the said !rticles of Union so as aforesaid ratified approved and confirmed by !ct of Parliament of +cotland and by this present !ct !nd the said !ct passed in this present +ession of Parliament intituled an !ct for securing the "hurch of Gngland as by .aw established !nd also the said !ct passed in the Parliament of +cotland intituled !ct for securing the

Protestant ,eligion and Presbyterian "hurch :overnment are hereby enacted and ordained to be and continue in all time comin$ the complete and intire Union of the two Kingdoms of Gngland and +cotland.

Ar$!ment& Failed to be achieved, several provision had been amended !ttempts in the !ct of Union to entrench provisions "a&e not )een !cce f!l& e&eral ot"er article 1 ai( to )e !nc"an$ea)le1 "a&e in fact )een amen(e( or repeale( in !) e0!ent cent!rie +

/ Insert a referendum provision ! second way would be to make f!t!re le$i lation (epen(ent on a referen(!m. "onsider the following provision, originally included in the Borthern Ireland "onstitution !ct 9?;3.

Nort"ern Irelan( Act @AA@@1 +@ Stat! of Nort"ern Irelan( It is hereby declared that Borthern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a ma1ority of the people of Borthern Ireland voting in a poll held for the purposes of this section in accordance with +chedule 9. #ut if the %i " e4pre e( )y a ma'ority in !c" a poll is that Nort"ern Irelan( "o!l( cea e to )e part of t"e Unite( #in$(om and form part of a united Ireland, the +ecretary of +tate shall lay before Parliament such proposals to give effect to that wish as may be agreed between Cer (a1esty=s :overnment in the United Kingdom and the :overnment of Ireland.

"ommentary& Perhaps success In other words, s+ @ ee- to place a limitation on Parliament enactin$ le$i lation to ce(e Nort"ern Irelan( to t"e Rep!)lic of Irelan(, which maybe done, it seems, only after t"ere i a po iti&e &ote in a referen(!m.

/ +pecial Parliamentary Procedure imposed ! third way would be to re8uire a pecial parliamentary proce(!re )efore amen(ment or repeal takes place. This could be in the form of a 4super/ ma1ority5 in the Couse of "ommons. !nother procedural re8uirement could be to specify that )ot" c"am)er of Parliament have to con ent to t"e alteration in t"e la%+ T"i %o!l( in&ol&e c"an$e to t"e arran$ement !n(er t"e Parliament Act @A@@ 0as amended in 9?@?2, whereby it is possible for a #ill to be presented for royal assent after two years even if the Couse of .ords is opposed to it. These possibilities were considered by a committee of >U+TI"G, the all party law reform group, in a report e%amining what form a possible #ritish #ill of rights might take.

T"e Report of t"e :USTICE Con tit!tion Committee& i& Amending the Parliament Act$ 'or the HOL Under present UK constitutional arrangements, by far the most effective of these procedures would be to establish a re0!irement t"at t"e econ( c"am)er 7Ho! e of Lor( 8 $i&e it appro&al to all propo e( amen(ment to t"e )ill of ri$"t . o This is because the Parliament !cts allow the Couse of "ommons, in certain circumstances, to overrule the Couse of .ords. o ! re8uirement that both Couses of Parliament must approve all proposed amendments to a bill of rights might represent the closest to constitutional entrenchment possible under current #ritish constitutional arrangements.

o +uch a move would enhance the constitutional authority of the Couse of .ords, which under the terms of the Parliament !cts only possesses a ma%imum power of one year=s delay over legislation 0with the e%ception of bills to suspend general elections and the approval of statutory instruments2. o The implementation of this amendment procedure would probably form part of a wider programme of parliamentary reform involving working out the basis for the future composition of a revised second chamber. o This wider reform would also need to involve some modernising redefinition of the functions and powers of the UK second chamber generally. o These might include, among others, the scrutiny and approval of emergency derogating measures from the bill of rights and the consideration of administrative and legislative

compliance with human rights generally. o Hrafting the provision in the bill of rights that future amendments will re8uire the consent of both Couses of Parliament should be straightforward. o All t"at i nee(e( i a reference to t"e @A@@ Parliament Act1 e4ceptin$ amen(ment to t"e )ill of ri$"t from t"e term of it pro&i ion +

ii& (e)uirement of s#ecial *oting ma+orities$ unli,ely in -. !ut had done some in Commonwealth Constitution Special ma'ority &otin$ i more pro)lematic. o This is principally because it i not an e ta)li "e( part of e4i tin$ U# con tit!tional an( political practice+ o In addition there is the problem of a o&erei$n Parliament %"ic"1 in t"eory1 can amen( or repeal any le$i lati&e pro&i ion. o There is no prece(ent for pecial ma'ority &otin$ in Parliament, though standing orders regulate voting practice by laying down various re8uirements, for e%ample that no fewer than 9FF (Ps must vote in support of a motion to end a debate in the Couse of "ommons.

o The #ritish government has included pecial ma'ority &otin$ in t"e amen(ment proce of many of t"e Common%ealt" con tit!tion it has drafted or helped draft for its former colonies and domin/ ions, including !ustralia and +outh !frica. o !n appropriate re0!irement for amending a UK bill of rights might be that the &ote in fa&o!r m! t e4cee( one "alf of t"e total mem)er "ip of t"e Ho! e concerne(, or a two/ thirds ma1ority among those present and voting. o Hifferent or similar voting re8uirements might apply in each Couse. o ! two/thirds ma1ority in both legislative chambers is the option most usually found abroad. o This is the case in "anada, :ermany and +outh !frica 0in addition to support in si% out of nine of the provinces2.

o The same was supported by IPP, and .iberty in their draft bills of rights in the 9??Fs. o #y contrast, a Parliamentary ma1ority suffices in Bew Nealand and !ustralian 1urisdictions, where the bills of rights are ordinary statutes. o The recent enactment process in the state of Mictoria for its "harter of ,ights and ,esponsibilities e%plicitly envisages amendment by providing that there be a review of the !ct four years from its enactment and again in eight years.

I it po i)le to entrenc" le$i lation in t"e U# con tit!tional y tem3 / +upremacy is parado%/ cannot bind by the past while also cannot bind the future -ne basic constitutional 8uestion to be addressed in relation to the United Kingdom is whether it would be possible for the UK Parliament to entrenc" le$i lation 7 !) tanti&ely or proce(!rally8+ Miews on this are divided. In addressing this 8uestion, there appears at first to be a para(o4. If we say that Parliament i a)le to limit it po%er to enact le$i lation in t"e f!t!re and if Parliament were to do this, then it %o!l( cea e to "a&e f!ll le$al !premacy& in Hicey5s words, 4! o&erei$n po%er cannot1 %"ile retainin$ it o&erei$n c"aracter1 re trict it o%n po%er )y any partic!lar enactment*.

#ut e8ually, if %e ay t"at Parliament lac- capacity to enact le$i lation re trictin$ it f!t!re po%er , t"en Parliament appear to lac- f!ll le$al !premacy+

Impo

i)le &ie%

!s we saw in the +aunders e%tract, there are two main schools of thought. #e clear& the disagreement here is over entrenchment, not over a #ill of rights. -ne of the prominent no entrenc"ment is possible theorists, +ir $illiam $ade, was firmly on the side of incorporating the G"C, into the UK constitution. The no entrenc"ment c"ool of t"o!$"t can )e fo!n( in t"e %ritin$ of Dicey an( /a(e, among others. The U# Parliament cannot1 t"ey ay1 effecti&ely re trict "o% f!t!re Parliament will e%ercise their primary law/making powers.

-f course, there might, in the future, be some dramatic change to the nature of the UK constitution6such as a revolution or a consensus that 1udges should have power to review the constitutionality of statutes6 but until any such )*ig *ang% +e$tra ordinary re,orm-, people %"o !pport t"e concept of contin!in$ !premacy ta-e t"e &ie% t"at t"e U# Parliament "a no limit on it po%er to enact primary le$i lation.

/a(e& "onse8uence of -mnipotent Parliament is that cannot bind the future Parliament I approach this )...* as a purely technical problem of legislation& how can our legislative machinery be made to deliver these particular goods7 In any normal situation there is no nee( for any 0!e tion1 ince Parliament i omnipotent . #ut the one inherent limit on its omnipotence, which is the con e0!ence of t"at omnipotence it elf1 i t"at t"e Parliament of to(ay cannot fetter t"e Parliament of tomorro% with any sort of permanent restraints, o t"at entrenc"e( pro&i ion are impo i)le+ That, at any rate, appears to be the view of the legal establishment.

/ P+ is the not fle%ible at all in the fle%ible UK constitution The of the concept of continuing supremacy is that Parliament a)ility to le$i late on any matter )y t"e normal proce(!re is therefore 0in $ade5s words2 4indestructible by legislation5 !n Act may pecify a pecial proce(!re, or a limit on the substance of the legislation, )!t if a later Act repeal or amen( t"at pro&i ion1 the '!($e %ill follo% %"at i tip!late( in t"e later Act 0because that is Parliaments most recent word on the matter2.

$ade stated lit is always for the courts, in the last resort, to say what is a valid !ct of Parliament5, but he was not by this suggesting that the courts could take unilateral action to change the rules for recogni ing legislation' rather, it %a t"e 'o) of t"e '!($e to )e $!ar(ian of parliamentary !premacy+ -n the fundamental point of parliamentary supremacy, the famo! ly fle4i)le 2riti " con tit!tion i not fle4i)le at all+

/ Po

i)le &ie%

Those who hold t"e (ifferent an( oppo in$ &ie% of parliamentary !premacy 0the con/se8uence of which is that entrenchment is possible without any sort of 4#ig #angA revolution in the legal system2 have what is labelled as the 4 elf6 em)racin$.1 ,manner an( form.1 or ,ne%. approac" to !premacy. +ir Ivor >ennings was a leading e%ponent of this view. He conten(e( t"at Dicey an( Dicey. !pporter %ere m!((le( a)o!t t"e term , o&erei$nty.. $e should, :ennin$ ar$!e(, stop thinking about Parliament a "a&in$ , !preme po%er. and in tea( foc! on t"e -ey principle in t"e 2riti " con tit!tion>t"at i 1 t"at ,t"e co!rt accept a la% t"at %"ic" i ma(e in t"e proper le$al form.+

/ Parliament supreme because of legal supreme as the law made according to the rule )manner and form* >ennings argued that it was po i)le for Parliament to refine t"e %ay in %"ic" la%6ma-in$ po%er %a e4erci e(6t"e ,manner an( form. of le$i lation6which %o!l( )in( f!t!re Parliament + +ir Ivor >ennings& o =! sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactmentK says Hicey )...*. This is a perfectly correct deduction from the nature of a supreme power. If a prince has supreme power, and continues to have supreme power, he can do anything, even to the e%tent of undoing the things which he had previously done.

o If he grants a constitution, binding himself not to make laws e%cept with the consent of an elected legislature, he has power immediately afterwards to abolish the legislature without its consent and to continue legislating by his personal decree. 2!t if t"e prince "a not !preme po%er, but the r!le i t"at the co!rt accept a la% t"at %"ic" i ma(e in t"e proper le$al form, t"e re !lt i (ifferent. For when the prince enact t"at "encefort" no r!le "all )e la% !nle it i enacte( )y "im %it" t"e con ent of t"e le$i lat!re, the law has been altered, and the co!rt %ill not a(mit a la% any r!le %"ic" i not ma(e in t"at form. "onse8uently a r!le !) e0!ently ma(e )y t"e prince alone a)oli "in$ t"e le$i lat!re i not la%, for the le$i lat!re "a not con ente( to it, and the r!le "a not )een enacte( accor(in$ to t"e manner an( form re0!ire( by the law for the time being.

The difference is this. In the one case there is sovereignty. In the other, the courts have no concern with sovereignty, but only with the established law. *Le$al o&erei$nty* i merely a name in(icatin$ that the le$i lat!re "a for t"e time )ein$ po%er to ma-e la% of any -in( in t"e manner re0!ire( )y t"e la%. That is, a r!le e4pre e( to )e ma(e )y t"e N!een, =with the a(&ice an( con ent of t"e Lor( pirit!al an( temporal1 an( Common in t"i pre ent Parliament a em)le(, and by the authority of the same,= %ill )e reco$ni e( )y t"e co!rt , incl!(in$ a r!le %"ic" alter t"i la% it elf. If this is so, the *le$al o&erei$n* may impo e le$al limitation

!pon it elf, )eca! e it po%er to c"an$e t"e la% incl!(e t"e po%er to c"an$e t"e la% affectin$ it elf+

An alternati&e to entrenc"ment= A ne% '!(icial oat"3 /"en '!($e ta-e office1 t"ey %ear or ma-e a olemn affirmation of allegiance and the '!(icial oat" !n(er t"e term of t"e Promi ory Oat" Act @IMI 0see #o% @.E in "hapter @2. Sir /illiam /a(e !$$e te( that this could pro&i(e a (ifferent %ay of ac"ie&in$ a -in( of entrenc"ment& )... (*y own suggestion will seem, I fear, very simply and obvious. #ut I believe it to be one to which logic ine%orably leads. !ll that needs to be done in or(er to entrenc" any ort of f!n(amental la% is to ec!re it reco$nition in t"e '!(icial oat" of office.

T"e only tro!)le at pre ent is that the e%isting form of oat" $i&e no a !rance of o)e(ience to tat!te )in(in$ later Parliaments. 2!t t"ere i e&ery a !rance that if t"e '!($e !n(erta-e !pon t"eir oat" to act in ome partic!lar %ay, t"ey %ill (o o. If %e "o!l( %i " to a(opt a ne% form of con tit!tion, therefore, all t"at nee( )e (one i to p!t t"e '!($e !n(er oat" to enforce it+ An Act of Parliament can )e pa e( to (i c"ar$e t"em from t"eir former oat" , if it were thought necessary, and to re0!ire t"em to )e re %orn in t"e ne% term .

K+ IMPLIED REPEAL Too many !ct result in incompatible will make 4implied repealed needed There is a further set of tec"nical r!le relating to parliamentary supremacy that is underpinned by views of the nature of sovereignty and the constitution6that is, the r!le on ,implie( repeal.+ $ith tens of thousands of pages of statute law, it is perhaps not !rpri in$ t"at on occa ion6 however careful parliamentary counsel are 6a situation arises in which Parliament "a ina(&ertently ma(e t%o Act of Parliament t"at (o not it comforta)ly %it" eac" ot"er. If t"e co!rt cannot reconcile them by interpretation and it is accepted that this is an incompatibility between two provisions in different !cts, t"en t"e implie( repeal r!le "a&e to )e (eploye(+

.ater !ct implied repeal the previous !ct if irreducible incompatible !t first sight, these are disarmingly straightforward. The )a ic r!le is that the later pro&i ion i re$ar(e( )y t"e co!rt a t"e one t"at i )in(in$+ Parliament i treate( a "a&in$ implie(ly repeale( t"e fir t pro&i ion %"en it enacte( t"e econ( one+ In the words of .aws .>, 4the rule is that if Parliament "a enacte( !cce i&e tat!te which on the true construction of each of them ma-e irre(!ci)ly incon i tent pro&i ion , the earlier tat!te i implie(ly repeale( )y t"e later+ o T"o)!rn & S!n(erlan( City Co!ncil

E4ception= G%press word only can repeal the con tit!tional tat!te but not by implied repealed That basic rule is not, however, obviously a good one in all situations. T"ere are a n!m)er of Act of Parliament that 0in the absence of a codified constitution2 et o!t t"e $ro!n( r!le for t"e operation of t"e 2riti " con tit!tional y tem. In the ne%t e%tract, .aws .> lists some of them and suggests a formula for working out whether an !ct should be regarded as a constitutional statute5 of this sort. If the basic rule of implied repeal were to apply to constitutional statutes, Parliament might end up inadvertently chipping away at the ground rules if, unintentionally, provisions are included in !cts that are incompatible with a constitutional statute.

.aws .> put forward the proposition, now widely accepted, that the )a ic r!le (oe not apply in relation to con tit!tional tat!te ' rather, the courts %ill treat t"e e Act a amen(e( or repeale( only if Parliament amen( or repeal t"em e4pre ly, in clear words. The con tit!tional tat!te in 0!e tion %a t"e E!ropean Comm!nitie Act @AGH+

The legal issue that .aws .> faced was whether local authority officers could lawfully insist that unpackaged fruit, vegetables, and fish be sold in metric units rather than impeJrial measures 0pounds and ounces26and whether they could confiscate scales from greenJgrocers and fishmongers who refused to comply, and bring criminal proceedings against them. +teven Thoburn was one of 4the metric martyrs who campaigned against this re8uirement. In his 1udgment, .aws .> refers to the Factortame litigation of the 9??Fs, in which the 2riti " co!rt accepte( t"at EU la% "a( primacy o&er any incon i tent U# la%' we look at Factortame in detail in "hapter 9D, along with the GU/law aspects of Thoburn. For current purposes, o!r foc! i on %"at La% L: ay a)o!t t"e $eneral i(ea of con tit!tional tat!te .

T"o)!rn & S!n(erlan( City Co!ncil )EFFE* La% L: )A?* )... * Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the G"! )that is, the Guropean "ommunities !ct 9?;E*. It cannot stipulate as to the manner and form of any subse8uent legislation. It cannot stipulate against implied repeal any more than it can stipulate against e%press repeal. Thus t"ere i not"in$ in t"e ECA %"ic" allo% t"e Co!rt of :! tice1 or any ot"er in tit!tion of t"e EU1 to to!c" or 0!alify t"e con(ition of Parliament* le$i lati&e !premacy in the United Kingdom. Bot because the legislature chose not to allow it' because by our law it could not allow it. That being so, the legislative and 1udicial institutions of the GU cannot intrude upon those conditions. The #ritish Parliament has not the authority to authorise any such thing. #eing sovereign, it cannot abandon its sovereignty. !ccordingly

there are no circumstances in which the 1urisprudence of the "ourt of >ustice can elevate "ommunity law to a status within the corpus of Gnglish domestic law to which it could not aspire by any route of Gnglish law itself. This is, of course, the traditional doctrine of sovereignty. If is to be modified, it certainly cannot be done by the incorporation of e%ternal te%ts. The conditions of Parliament=s legislative supremacy in the United Kingdom necessarily remain in the United Kingdom=s hands. 2!t t"e tra(itional (octrine "a in my '!($ment )een mo(ifie(+ It "a )een (one )y t"e common la%, %"olly con i tently %it" con tit!tional principle+ )LF* The common la% "a in recent year allo%e(1 or rat"er create(1 e4ception to t"e (octrine of implie( repeal= a doctrine which was always the common law=s own creature.

T"ere are no% cla e or type of le$i lati&e pro&i ion %"ic" cannot )e repeale( )y mere implication+ These instances are given, and can only be given, by our own courts, to which the scope and nature of Parliamentary sovereignty are ultimately confided. The courts may say6have said6that there are certain circumstances in which the legislature may only enact what it desires to enact if it does so by e%press, or at any rate specific, provision. )...* In the present state of its maturity the common law has come to recognise that t"ere e4i t ri$"t %"ic" "o!l( properly )e cla ifie( a con tit!tional or f!n(amental& !nd from this a further insight follows.

/e "o!l( reco$ni e a hierarchy of !cts of Parliament& as it %ere Eor(inaryO tat!te an( Econ tit!tionalE tat!te + The two categories must be distinguished on a principled basis. In my opinion a con tit!tional tat!te i one %"ic"= o 0a2 con(ition t"e le$al relation "ip )et%een citi5en an( State in some general, overarching manner, or o 0b2 enlar$e or (imini "e t"e cope of what we would now regard as f!n(amental con tit!tional ri$"t , 0a2 and 0b2 are of necessity closely related& it is difficult to think of an instance of 0a2 that is not also an instance of 0b2.

The con t"e con

pecial tat! of tit!tional tat!te follo% pecial tat! of tit!tional ri$"t +

E4ample are t"e= o Ma$na Carta1 o t"e 2ill of Ri$"t @MIA1 o t"e Act of Union1 o t"e Reform Act %"ic" (i tri)!te( an( enlar$e( t"e franc"i e1 o t"e HRA1 o t"e Scotlan( Act @AAI an( o t"e Go&ernment of /ale Act @AAI. The ECA clearly )elon$ in t"i family+ It incorporated the whole corpus of substantive "ommunity rights and obligations, and gave overriding domestic effect to the 1udicial and administrative machinery of "ommunity law.

It may )e t"ere "a ne&er )een a tat!te "a&in$ !c" profo!n( effect on o many (imen ion of o!r (aily li&e + The G"! is, by force of the common law, a constitutional statute. )L3* Or(inary tat!te may )e implie(ly repeale(+ Con tit!tional tat!te may not+ For the repeal of a constitutional !ct or the abrogation of a fundamental right to be effected by statute, the co!rt %o!l( apply t"i te t= o i it "o%n t"at t"e le$i lat!re* act!al / not imputed , constructive or presumed / intention %a to effect t"e repeal or a)ro$ation7 I t"in- t"e te t co!l( only )e met )y e4pre %or( in t"e later tat!te, or )y %or( o pecific t"at t"e inference of an act!al

(etermination to effect the result contended for was irre i ti)le. T"e or(inary r!le of implie( repeal (oe not ati fy t"i te t+ Accor(in$ly1 it "a no application to con tit!tional tat!te + I should add that in my 1udgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the #ill pursuant to pepper v Cart A con tit!tional tat!te can only )e repeale(1 or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citi en and +tate, )y !nam)i$!o! %or( on t"e face of t"e later tat!te.

)L@* This (e&elopment of t"e common la% re$ar(in$ con tit!tional ri$"t , and as I would say constitutional statutes, i "i$"ly )eneficial. It $i&e ! mo t of t"e )enefit of a %ritten con tit!tion, in which fundamental rights are accorded special respect. 2!t it pre er&e t"e o&erei$nty of the legislature and the fle4i)ility of o!r !nco(ifie( con tit!tion. It accepts the relation between legislative supremacy and fundamental rights is not fi%ed or brittle& rather the courts 0in interpreting statutes, and now, applying the C,!2 will pay more or less deference to the legislature, or other public decision/maker, according to the sub1ect in hand. Bothing is plainer than that this benign development involves, as I have said, the recognition of the G"! as a constitutional statute.

/ Gffect of the decision change the past view and no 1udge doubted about it yet The approac" ta-en )y La% L: i not an ort"o(o4 one. In t"e pa t1 commentator "a&e often tre e( t"at t"ere are not (ifferent cate$orie of statute in the United Kingdom6the Hentists !ct 9?D@ or the Hangerous Hogs !ct 9??9 0statutes of no constitutional signifiJcance2 are 4the same as5 the Cuman ,ights !ct 9??D or the Parliament !cts 0statutes that are very clearly of constitutional significance2. 2!t no '!($e "a yet calle( into 0!e tion La% L' approac" in T"o)!rn+

A. EUROPE/ G"C, and GU .aw !s has already been noted, the Unite( #in$(om. participation in t"e t%o E!ropean inte$ration pro'ect 6the Co!ncil of E!rope an( t"e EU6has had an impact on the concept and practice of parliamentary supremacy, as the ne%t e%tract discusses.

GU law and G"C,/ although remain P+, but domestic institution has change the attitude to uphold the human right Mar- Elliott = The H!man Ri$"t Act $i&e effect in U+#+ la% to many of the provisions of the Guropean "onvention on Cuman ,ights. Bone of the rights contained in the G"C, are placed beyond parliamentary interference by the C,!& indeed, when the government set out its proposals for legislation in this area, it emp"a i5e( it on$oin$ attac"ment to t"e tra(itional (octrine of parliamentary o&erei$nty. T"i 1 "o%e&er1 e&i(ence a rat"er myopic &ie%, which !n"elpf!lly (i locate le$i lati&e po%er from t"e %i(er political en&ironment within which it subsists, and which the HRA "a c"an$e( ra(ically+

The attention of Parliament i no% y tematically (ra%n to t"e "!man ri$"t implication of (raft le$i lation& its enactment m! t1 %"ene&er po i)le1 )e rea( con i tently %it" rele&ant pro&i ion of the G"C,6an obligation that the courts have discharged with notable enthusiasm in some cases. Further, ome national co!rt are empo%ere( to i !e (eclaration of incompati)ility if legislation is found to fall short of G"C, norms, t"ere)y tri$$erin$ t"e po i)ility of fa t6trac- amen(ment )y mean of a(mini trati&e le$i lation+ In t"e !nli-ely e&ent that these national provisions prove in !fficient to ec!re respect for human rights in a particular case, t"ere remain t"e pro pect of procee(in$ )efore t"e E!ropean Co!rt of H!man Ri$"t .

!s Lor( 2orrie said in a Couse of .ords debate on the Cuman ,ights #ill 0as it then was known2 =the political reality will be that, while historically the courts have sought to carry out the will of Parliament, in t"e fiel( of "!man ri$"t Parliament %ill carry o!t t"e %ill of t"e co!rt )... T9"e intention of t"e 2ill !rely i t"at $o&ernment an( Parliament %ill fait"f!lly implement any (eclaratory '!($ment made by the Cigh "ourt.= Li-e it po%er to (epart from EU la%, Parliament=s ability to derogate from the G"C,, although formally undisturbed by the C,!, begins to look increasingly notional. A ne% political en&ironment i emer$in$ in which a le$al (octrine of le$i lati&e !premacy appear at lea t anomalo! .

Commentary= Parliament remain the authority to repeal but face penalty at the same time In practice, the U# Parliament i )o!n( )y t"e term of t"e treatie establishing the Guropean Union' )!t politicians make the point that the E!ropean Comm!nitie Act @AGH i not entrenc"e(. Deni MacS"ane1 a Mini ter for E!rope. Couse of "ommons Cansard, o The !ltimate $!arantee of parliamentary o&erei$nty lie in t"e po%er of Parliament to repeal all or any of the !cts which give effect to the GU treaties in this country. o It i %it"in Parliament* po%er to le$i late contrary to the UK=s treaty obligations. )... * T"e re !lt of o (oin$, however, would be to place t"e U# in

)reac" of it treaty o)li$ation .

M+ De&ol!tion matter on PS In theory P+ present, but in practice )or even convention* Parliament will not interfere with devolution matter as it will undermine the devolution matter Mar- Elliott = The same point can be made in relation to the program of asymmetric devolution by which varying amounts of legislative and administrative power have been transferred to Borthern Ireland, $ales and +cotland, reflecting different levels of public support for self/ government in the constituent nations of the United Kingdom. Botwithstanding substantial differences among the schemes, an important common factor is that the U+#+ Parliament "a not reno!nce( le$i lati&e o&erei$nty in relation to t"e t"ree nation concerne(.

For e%ample, t"e Scotti " Parliament i empo%ere( to enact primary le$i lation on all matter , e/ce#t those in relation to which com#etence is e/#licitly denied, but t"i po%er to legislate on what may be terme( *(e&ol&e( matter * i conc!rrent %it" t"e /e tmin ter Parliament* $eneral po%er to legislate for +cotland on any matter at all, including devolved matters. In t"eory, therefore, /e tmin ter may le$i late on Scotti " (e&ol&e( matter %"ene&er it c"oo e ' in practice, however, it (oe not. ! con tit!tional con&ention rapi(ly emer$e( to the effect that =the U+#+ Parliament %o!l( not normally le$i late %it" re$ar( to (e&ol&e( matter e4cept %it" t"e a$reement of t"e (e&ol&e( le$i lat!re.= The rea on for t"i con&ention i elf6e&i(ent& !nilateral interference in (e&ol&e( matter )y t"e U+#+ Parliament would

f!n(amentally !n(ermine t"e pirit of t"e (e&ol!tion c"eme. It would be politically !naccepta)le for t"e /e tmin ter Parliament to i$nore t"e %i "e of t"e Scotti " people as e%pressed by their elected representatives in the +cottish Parliament. !s time passes, and as devolution is woven ever more closely into the constitutional fabric of the United Kingdom, t"e t"eoretical a)ility of t"e U+#+ Parliament to interfere !nilaterally %it" (e&ol&e( matter %ill )e een increa in$ly a a &e ti$e of an !nrecon tr!cte( (octrine of a) ol!te le$i lati&e a!t"ority+

G+ THE <UTURE O< PARLIAMENTARY SUPREMACY $e end this e4amination of parliamentary !premacy %it" pec!lation a)o!t it f!t!re. There seem to be t"ree main po i)ilitie . The fir t is that parliamentary !premacy remain t"e (ominant principal in the #ritish constitution6 al!eit modified to ma,e #ossi!le -. mem!ershi# of the 0- and Council of 0uro#e& ! econ( is that the United Kingdom adopts a co(ifie( con tit!tion, which )ecome t"e o!rce of Parliament la%6ma-in$ po%er with the co!rt 0or maybe a constitutional court separate from the main court system2 re pon i)le for enforcin$ t"e pro&i ion of new constitution.

! t"ir( possible scenario is that the UK S!preme Co!rt may, at some point in the future, decide that the #ritish 1udiciary henceforth has po%er to a('!(icate on t"e con tit!tional &ali(ity of Act of Parliament, in order to protect rights recogni ed by the common law.

Future7& +upreme "ourt has to power to strike it down C"an$e in apparently ettle( principle of common la% relatin$ to t"e con tit!tion (o occa ionally occ!r+ For e%ample, in 9?D@, the La% Lor( "el( t"at t"e e4erci e of prero$ati&e po%er %a not imm!ne from '!(icial re&ie%+ o G H. case !mong senior 1udges, there are some who appear to contemplate this at least as a theoretical option.

:ac- on & Her Ma'e ty* Attorney General )EFFA* Lor( Steyn /e (o not in t"e Unite( #in$(om "a&e an !ncontrolle( con tit!tion as the !ttorney :eneral implausibly asserts )... * The classic account given by Hicey of the (octrine of t"e !premacy of Parliament, pure and absolute as it was, can now be seen to be o!t of place in t"e mo(em Unite( #in$(om. Bevertheless, t"e !premacy of Parliament i till t"e $eneral principle of o!r con tit!tion. It i a con tr!ct of t"e common la%. T"e '!($e create( t"i principle. If that is so, it i not !nt"in-a)le t"at circ!m tance co!l( ari e

%"ere t"e co!rt may "a&e to 0!alify a principle e ta)li "e( on a different hypothesis of constitutionalism. In e4ceptional circ!m tance involving an attempt to a)oli " '!(icial re&ie% or the ordinary role of the courts, the !ppellate "ommittee of the Couse of .ords or a ne% S!preme Co!rt may "a&e to con i(er %"et"er t"i i a con tit!tional f!n(amental which e&en a o&erei$n Parliament actin$ at t"e )e"e t of a complai ant Ho! e of Common cannot a)oli "+

<!t!re3& 4#ipolar sovereignty5/ "ourt and Parliament +ome have suggested that the whole concept of Parliament alone 4being sovereign is no longer appropriate in a modern constitution for #ritain, and there has been tal- of,)ipolar o&erei$nty. in %"ic" t"e po%er of )ot" Parliament an( t"e '!(iciary are reco$ni5e(.

/ #ipolar due to functional overlap, compensate the weaknesses of each other C:+S+ #ni$"t& )... #*i/polar sovereignty )...* can be theoretically 1ustified by reference to the work of +ir +tephen +edley )a 1udge of the "ourt of !ppeal in Gngland and $ales* and $.>. ,ees )an academic*. $hat their work can provide is an !n(er tan(in$ of t"e f!nctional o&erlap )et%een Parliament an( t"e co!rt . The ettin$ a$ain t %"ic" t"e o&erlap is concei&e( i t"e con tit!tional "i tory of in tit!tional pra$mati m.

-ne can consider the relation "ip )et%een t"e t%o concept in the following way& how the re tate( )i6 polar o&erei$nty presented can work is e%plained theoretically here in the conte%t of a constitution which has a long history of e&ol&in$ practical an %er to pro)lem , anticipated or actual. In tit!tional pra$mati m as used here is conceived as a rea(ine to ! e one in tit!tion to compen ate for percei&e( or act!al %ea-ne e in anot"er1 or to take on new functions as the institution develops. )... *

/ G%ecutive answerable to "rown in Parliament )politically* and "rown in "ourt )legally* C:+S+ #ni$"t& )... * +ir +tephen )... * wrote that there was emerging a new Iconstitutional paradigmI that was& =)...* no lon$er of Dicey !preme parliament to %"o e %ill t"e r!le of la% m! t finally )en(, but of a )i6polar o&erei$nty of t"e Cro%n in Parliament an( t"e Cro%n in it co!rt , to each of which the Cro%n* mini ter are an %era)le> politically to Parliament1 le$ally to t"e co!rt +* The suggestion is an e%tremely important one, not least because of the position of its author, and has attracted a good deal of attention. It i often $ro!pe( to$et"er %it" the classic suggestions of a "i$"er6 or(er la% t"at mi$"t permit t"e co!rt to tri-e (o%n le$i lation if it was thought to sufficiently breach the rule of law, and more particularly, e%clude the role of the 1udiciary.

.ord Irvine ).ord "hancellor 9??;/ EFF3* certainly treated all four e%tra/ 1udicial articles as similar e%pressions of 1udicial supremacism and famously labelled them as Ie%tra/1udicial romanticismI.

/ #ipolar + supported by theory that new understanding of the comple%ity relationship btw the > and GK. )...* $hile higher/order law relates to constitutional theory, it might be more accurately classified as part of a notion of a substantive rule of law with all the writings, legal and theoretical baggage that go along with that debate. In contrast, )ipolar o&erei$nty i firmly locate( in con tit!tional t"eory. The t"eory pro&i(e a met"o( of 0!e tionin$ t"e implicity of t"e o&erei$n )ein$ t"e Cro%n6in6 Parliament and ee- to !pply a ne% !n(er tan(in$ that )etter reco$ni e t"e comple4ity of t"e relation "ip )et%een t"e '!(icial an( le$i lati&eL e4ec!ti&e )ranc"e .

! common law system means that, at least in reality, the co!rt ma-e la% '! t a t"e le$i lat!re (oe + It prono!ncement may )e altere( or o&err!le( )y t"e le$i lat!re1 but t"at (oe not (eny t"e force of t"e common la%+

Ar$!ment= +till hundreds of evidence of "ourt uphold the P+ #ut for e&ery '!(icial tatement callin$ into 0!e tion ort"o(o4 t"in-in$ a)o!t parliamentary !premacy, it is possible to find a "!n(re( "o%in$ commitment to t"e notion t"at t"e '!($e. role i to !p"ol( parliamentary !premacy. For one such statement, ee Lor( Millet. tatement in a ca e relatin$ to t"e protection in t"e Rent Act @AGG follo%in$ t"e (eat" of a tenant+ -riginally, the 9?;; !ct stated that where a tenancy was in the name of one party to marriage 0it was usually in that of the husband2, the other could not be evicted. That was later e%tended to cover unmarried men and women 0in situations in which the survivor had lived with the tenant 4as his or her wife or husband52.

In :haidan, the 8uestion arose whether that protection also covered gay couples if the phrase was interpreted so as to be compatible with "onvention rights under the Cuman ,ights !ct 9??D, s. 3.@@ Lor( Millet, (i entin$, )bought that the words "o!l( not )e tretc"e( to e4ten( to $ay people+ G"ai(an & Go(in6Men(o5a I have given long and an%ious consideration to the 8uestion whether, in the interests of una/ nimity, I should suppress my dissent, but I have come to the conclusion that I should not. The 8uestion is of great constitutional importance, for it $oe to t"e relation "ip )et%een t"e le$i lat!re an( t"e '!(iciary1 an( "ence !ltimately to t"e !premacy of Parliament+

+ections 3 and @ of the Cuman ,ights !ct were carefully crafted to preserve the e%isting constitutional doctrine, and any application of the ambit of s. 3 beyond its proper scope subverts it. This is not to say that the doctrine of Parliamentary supremacy is sacrosanct, but only t"at any c"an$e in a f!n(amental con tit!tional principle "o!l( )e t"e con e0!ence of (eli)erate le$i lati&e action an( not '!(icial acti&i m1 "o%e&er %ell meanin$+

CONCLUDING COMMENTS This chapter has e%amined the constitutional principles of parliamentary supremacy, setting them in the conte%t of an ongoing debate between supporters of political and legal constitutionalism.