Constitutional Supremacy V Parliamentary Sovereignty

Topic Guide

1. The Doctrine of Parliamentary Sovereignty

~Meaning~
Albert Venn Dicey:
“The principle of parliamentary sovereignty means neither more nor less than this,
namely, that Parliament [defined as the Queen, the House of Lords and the House
of Commons acting together] … has, under the English constitution, the right to
make or unmake any law whatever; and, further, that no person or body is
recognized by the law as having a right to override or set aside the legislation of
Parliament.” (A.V. Dicey, Law of the Constitution 10 ed. 39-40)
To explain this principle Dicey also said that Parliament could do everything
but ‘make a woman a man and a man a woman’
~Implications~
1. Acts of Parliament must be obeyed by the courts. Courts only have the power to
interpret and administer laws – they cannot review Acts of Parliament.

2. Parliament has control over its internal proceedings. Courts will be reluctant to
review the process or internal proceedings of parliament to see if they conformed
to the manner and form requirements imposed.

3. Parliament is not bound by the acts of its predecessors – it can make changes in
its constitution by ordinary law and no special procedure is needed.

Edinburgh and Dalkeith Railway Co., v Wanchope (1842) per Lord Campbell (at
725)
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“All that a Court of Justice can do is to look to the Parliament Roll: if from that it
should appear that a Bill has passed both Houses and received the Royal Assent, no
Court of Justice can inquire into the mode in which it was introduced into
Parliament, nor into what was done previous to its introduction, or what passed in
Parliament during its progress in its various stages through both Houses.”
British Railways Board v Pickin [1974] Lord Reid gave a clear outline of the
implications of parliamentary sovereignty in the UK
“The idea that a court is entitled to disregard a provision in an Act of Parliament on
any ground must seem strange and startling to anyone with any knowledge of the
history and law of our constitution…
“I must make it plain that there has been no attempt to question the general
supremacy of Parliament. In earlier times many learned lawyers seem to have
believed that an Act of Parliament could be disregarded insofar as it was contrary
to the law of God or the law of nature or natural justice but since the supremacy of
Parliament was finally demonstrated by the revolution of 1688 any such idea has
become obsolete.
“The function of the court is to construe and apply the enactments of Parliament.
The court has no concern with the manner in which Parliament or its officers
carrying out its standing orders perform these functions. Any attempt to prove that
they were misled by fraud or otherwise would necessarily involve an enquiry into
the manner in which they had performed their functions in dealing with the bill
which became the British Railways Act 1968.”
~The demise~
Even in the UK, the birthplace of this doctrine, parliament’s sovereignty has
steadily been declining over the years. A.W. Bradley notes the following ways in
which the doctrine has been eroded in the UK:
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1. A sovereign parliament may make an irreversible renunciation or transfer of

power as in independence.
2. Community law creates obligations upon member states and individual
rights enforceable in national courts. Community organs have the right to
make decisions and issue regulations, which may override legislation by
Parliament. As long as the UK remains in the European Community, the
laws made by the supreme Parliament must, if necessary give way to the
greater supremacy of the Community law. Symonette makes this point too.
3. Devolution. The Scotland Act gives wide law-making powers to the new
Parliament. As a matter of strict law, Westminster retains the full capacity to
amend or repeal the Scotland Act and can do so without the approval of the
Scots, but political reality is different
4. The Human Rights Act 1998 makes the rights under the European
Convention on Human Rights enforceable in domestic courts within the
terms of the Act. The court cannot strike down legislation but can make a
‘declaration of incompatibility’ and thereafter Parliament must reconsider
the legislation.

Around the commonwealth, this decline has been more formal and explicit with the
advent of written constitutions.
One of the earliest cases to make this clear was Bribery Commissioner v
Ranasinghe. Confronted with an argument based on parliamentary sovereignty,
Lord Pearce had this to say:
“… it has been argued that the court, when faced with an official copy of an Act of
Parliament, cannot enquire into any procedural matter and cannot now properly
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consider whether a certificate was endorsed on the bill. That argument seems to
their lordships insubstantial, and it was rightly rejected by the Supreme Court.
Once it is shown that an Act conflicts with a provision in the Constitution the
certificate is an essential part of the legislative process. The court has a duty to see
that the Constitution is not infringed and to preserve it inviolate. Unless therefore
there is some very cogent reason for doing so, the court must not decline to open
its eyes to the truth.”
The Privy Council in this case invalidated an Act of Parliament that did not have
the requisite certificate attesting to the majority obtained for amendment of the
Constitution. In the absence of that certificate, the Act was invalid.
In the Caribbean, one of the earliest explanations for the demise of parliamentary
sovereignty came from Stoby C in Jaundoo v AG of Guyana (1968): “Before the
advent of a written constitution the legislature of colonial British Guiana was
supreme; true, its supremacy was not absolute in the sense in which the United
Kingdom Parliament is absolute. A colonial government’s legislation was subject
to the supervision of the Secretary of State who could withhold his assent if the
proposed law infringed certain canons of justice or policy. But within the limits of
these restrictions the legislature could introduce laws which were severe or even
revolutionary. Colonial politicians accustomed through reading and association to
the moderation of English. politicians, and Guyanese lawyers trained in England
and engrained in the common law of England which had spread its roots
throughout the British Commonwealth, recognized the greatness of a system which
protected the democratic rights of peoples. No attempt was ever made to alter or
restrict the fundamental principles of British jurisprudence. Even when Roman-
Dutch law was the common law of Guyana judges trained in British institutions
were engrafting and introducing bit by bit the canons of English common law.
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…
When internal self-government was introduced, and when independence was
achieved, all those safeguards which had protected colonial peoples from
oppression were engrafted into the Constitution and called fundamental rights. By
inserting them into the Constitution the result which flowed was that Parliament
became subject to the Constitution. It was supreme and yet not supreme,
Parliament can alter the Constitution in the manner prescribed by the Constitution,
but until it is altered no legislation can be enacted which infringes a fundamental
right.

2. The Concept of Supremacy

~Origins of the idea ~
As Jutta Limbach points out, the principle of constitutional supremacy is a product
of American legal thinking. The origins of this doctrine is often traced to the
judgment of Chief Justice John Marshall in the seminal case, Marbury v Madison
(1803) Cranch 137:
“The Constitution is either a superior, paramount law, unchangeable by ordinary
means, or it is on a level with ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it. If the former part of the
alternative be true, then a legislative act contrary to the Constitution is not law; if
the latter part be true, then written Constitutions are absurd attempts on the part of
the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as
forming the fundamental and paramount law of the nation, and consequently the
theory of every such government must be that an act of the Legislature repugnant
to the Constitution is void.
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This theory is essentially attached to a written Constitution and is consequently to
be considered by this Court as one of the fundamental principles of our society. It
is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it,
notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or,
in other words, though it be not law, does it constitute a rule as operative as if it
was a law? This would be to overthrow in fact what was established in theory, and
would seem, at first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the
law is. Those who apply the rule to particular cases must, of necessity, expound
and interpret that rule. If two laws conflict with each other, the Courts must decide
on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the
Constitution apply to a particular case, so that the Court must either decide that
case conformably to the law, disregarding the Constitution, or conformably to the
Constitution, disregarding the law, the Court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.”
~Elements~
Limbach explains that there are three elements of supremacy:
1. The supremacy of the constitution over other laws;
2. Entrenchment of constitutional provisions; and
3. Judicial review of executive action.

A pervasive concern related to constitutional supremacy is that of its precedence

over ordinary legislation and the implications of this for democracy. We will return
to this at the end of this topic, but for now consider Limbach’s explanation of this
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dilemma: “Democracy means not just that State power derives from the people and
politics is determined by their elected representatives. Another part of democracy
comprises particular fundamental values, to which all organs of State
~Supreme Law clauses & Examples ~
The Supreme Law clause are committed. …democracy cannot be upheld without
the validity of human rights.”
Guyana, Art. 8
Belize, s. 2: “2.-(1) This Constitution is the supreme law of Belize and if any other
law is inconsistent with this Constitution that other law shall, to the extent of the
inconsistency, be void.”
St. Lucia, s. 120: “This Constitution is the supreme law of Saint Lucia and,
subject to the provisions of section 41 of this Constitution, if any other law is
inconsistent with this Constitution shall prevail and the other law shall, to the
extent of the inconsistency, be void.”
Trinidad and Tobago, s. 2: “This Constitution is the supreme law of Trinidad and
Tobago, and any other law that is inconsistent with this Constitution is void to the
extent of the inconsistency.”
Jamaica, s. 2: “Subject to the provisions of sections 49 and 50 of this Constitution,
if any other law is inconsistent with this Constitution, this Constitution shall
prevail and the other law shall, to the extent of the inconsistency, be void.”

The independence constitution of Trinidad & Tobago did not have an explicit
supreme law clause, but in Collymore v AG rejected an argument of parliamentary
supremacy, robustly asserting the court’s jurisdiction to uphold the constitution.

Note as well that even though Jamaica has a different formulation, which does not
mention the words ‘supreme law’, supremacy is inferred from the language of the
provision.