UK CONSTITUTION-3

PARLIAMENTRAY SUPREMACY
The implication of Parliamentary Sovereignty is that the Westminster Parliament is legally entitled to
pass, amend, or repeal any law that it wishes. Once both the upper House of Lords and lower House of
Commons pass a piece of legislation and the monarch provides the Royal Assent, then no court or other
body is able to invalidate the law. Parliamentary Sovereignty is a statement of law, not of politics;
politically Parliament may not be able to pass any legislation. The Monarch in Parliament is in this sense
sovereign or supreme, having the supreme or ultimate law-making power in the UK.

In 1648, Henry Herbert, the 2nd Earl of Prembroke, famously commented while a member of the House
of Lors said that “Parliament can do anything but make a man a woman and a woman a man.”

❑ Theories/ Principles of the Constitution:

According to A.V. Dicey, he offered a three-part definition of the sovereignty:

1. Parliament can legislate on any subject matter:

Parliament can enact laws on any subject matter, but politically this may not be possible. For example, it
might be politically impossible to enact legislation, which requires women and men to own property as a
precondition of voting. Parliament has enacted retrospective legislation which affect acts which
occurred prior to the passage of the Act. Article 7 European Convention on Human Rights and
Fundamental Freedoms 1950 (ECHR) prohibits retrospective legislation that leads to criminal sanction.
Parliament has also enacted legislation, which operates extraterritorially, such as the War Crimes Act
1991, and the Criminal Justice and Immigration Act 2008.

A series of cases decided towards the end of the British Empire illustrate some practical limitations on
Parliament's legislative competence:

British Coal Corporation v R [1935] AC 500, the Privy Council affirmed the impact of the Statute of
Westminster which gave legislative independence to Canada and Australia. Section 4 Colonial Laws
Validity Act 1865, thus, limited Parliament's legislative competence in providing that the Westminster
Parliament could only pass legislation for the Dominions with their consent.

Madzimbanuto v Lardner-Burke [1969] 1 AC 645 if Parliament chose to pass a law which is morally,
politically or otherwise improper, the courts cannot hold the Act of Parliament to be invalid. The case
involved the Southern Rhodesia Act 1965, which asserted the Westminster Parliaments legislative
supremacy over Southern Rhodesia, despite Ian Smith's unilateral declaration of independence in the
newly created Zimbabwe. Although Parliament can enact any law, it does not mean that Zimbabwean
citizens could be forced to acknowledge its supremacy.

Some authors argue that some areas are beyond the reach of the Westminster Parliament. In
McCormick v Lord Advocate (1953) SC 396, the Lord President indicated that parliamentary sovereignty
in its traditional formulation was English, not Scottish. He argued that the Act of Union with Scotland
1707 which provided for amendment or repeal of certain sections, but not all. Practically the change in
the relationship between Scotland and England would require significant political negotiation, however,
in a strictly legal sense there may be a problem from the Scottish side, but not from the English side.

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 2. Nobody including a court of law can question the validity of an Act of Parliament:

Principle 1 means there is no area on which Parliament cannot legislate and principle 3 means that once
it is enacted no institution or individual can question its validity.

Manuel v Attorney General [1983] Ch 77 - case confirms that it is the duty of the court to obey and apply
every Act of Parliament, and the court cannot hold an Act to be ultra vires. Courts are not entitled to
consider any defects in parliamentary procedure leading to the enactment of the legislation. Courts may
invalidate delegated legislation which is deemed to be ultra vires.

Stockdate v Hansard [1839] 9 Ad & E 1; 112 ER 1112, a resolution of only the House of Commons cannot
make or alter the law; it needs to be the concurrence of the three legislative estates.

Parliament does recognize some limits on its supremacy, but it is arguable that these are political
limitations. In instances when statutes contradict a provision of international law, in the UK 'dualist'
system such provisions are not binding on Parliament unless Parliament enacts a statute to bring it into
effect. International law does not render a contradictory domestic law void. Cheney v Conn [1968] 1 All
ER 779 asserts the hierarchical superiority of Acts of Parliament even over international law. Courts
operate the principle that Parliament does not intend to legislate in contradiction with international law,
so, if possible, interpret the Statute to give consistent meaning with that of the international provision.

3. No parliament can be bound by its predecessor nor bind by its successor

[For details, follow the book of Rezaul Karim, pg-72]

❑ History:
➢ The Six Books of the Commonwealth’ (1576) by Jean Bodin was written during religious turmoil
in Europe and was the first person to devise separation of sovereignty and the sovereign
• He embraced the absolute conception of sovereignty i.e. the sovereign power is not subject to
any other restriction
• He said the sovereign is the source of law and the sovereign is not subject to its own law
➢ Thomas Hobbes (‘Leviathan’ (1651)) said that sovereign power results from a social contract
between individuals i.e. the sovereign has power because the people agree to it
• He had a quasi-absolute conception of sovereignty i.e. the sovereign is not subject to his own
law, but is subject to the law of nature (natural law is seen as a body of unchanging moral
principles regarded as the basis for all human conduct)
➢ John Locke (Two Treatises of Government (1689)) said that sovereign power results from a
social contract between individuals and the sovereign – the sovereign is a party to the social
contract so can be held accountable i.e. the people agree with the sovereign power to rule over
them to live in a more harmonious society
• He believed in a limited sovereign i.e. the sovereign must adhere to the social contract and
protect individual rights
• And he believed in a legal sovereign i.e. the sovereign is the source of law and is bound by its
own law – this is where the rule of law finds its origins
❑ Sources:

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Jennings (I. Jennings the Law of the Constitution (5th edition, London University Press, 1959) asserts that
Parliamentary Supremacy is rooted in the legal rule that courts accept legislation that Parliament enacts
as law. Whereas Dicey (A.V Dicey, Introduction to the Study of the Law of the Constitution, 1885)
maintained that Parliamentary Sovereignty is contained within the common law.

In fact, the sources of Parliamentary Sovereignty are to be found within the UK constitution, which in
the absence of a written constitution is to be found in:

• statute law;
• common law;
• constitutional conventions;

some other category of norm:

i. Statute

The basic rules of parliamentary supremacy are not in Statute, as some commentators explain why this
is not possible.

Sir John Salmond Jurisprudence (12th edition, Sweet and Maxwell, 1966:111) stated that "no statue can
confer this power [parliamentary supremacy] upon Parliament, for this would be to assume and act on
the very power that is to be conferred". Parliament is incapable of conferring sovereignty upon itself via
Statute.

Eric Barendt, An Introduction to Constitutional Law (OUP, 1988:87) "Parliament could declare ... that it is
legally sovereign and [able] to enact any legislation it likes. But [this] would not add anything to its
legislative capacity. Parliament can hardly confer constitutional authority on itself by its own
enactment".

Parliament can acknowledge its law-making power in legislation, but not confer it; e.g. s.28 Scotland Act
1998.

ii. Common Law

Eric Barendt, An Introduction to Constitutional Law (OUP, 1988:86) discusses the source of the UK's
Parliamentary legislative authority and the scope of that power. It is the courts that must also decide
whether Parliamentary authority prevails over inconsistent rules of EC law. "It is therefore the courts,
rather than Parliament itself, which have formulated the principle which is the corner-stone of the
uncodified constitution of the United Kingdom".

iii. A constitutional convention

This idea can be rejected on the basis that constitutional conventions are not justiciable and enforceable
by the courts, whereas the courts can apply the parliamentary supremacy rules.

Another category of norm:

Several writers have argued that parliamentary supremacy is in a class of its own. For example:

H.W.R Wade. 'The basis of legal sovereignty' [1955] CLJ, 172 " If no statute can establish the rule that
the courts obey Acts of Parliament, similarly no statute can alter or abolish that rule. This rule is above

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and beyond the reach of statute [...] because it is itself the source of the authority of statute. This puts it
in a class by itself among rules of common law, and the apparent paradox that it is unalterable by
Parliament turns out to be a truism" ... "The relationship between the courts of law and Parliament is
first and foremost a political reality".

❑ Can Parliament amend its own Constitution?

If Parliament can pass, repeal or amend any law that it likes, it is able to amend the Constitution.
Relevant case law suggests that it is able to do so for particular purposes.

In Jackson v Attorney General [2006] 1 AC 262, The HL had to determine the validity of the Parliament
Act 1949, which amended the Parliament Act 1911. The 1949 Act was passed without the consent of the
House of Lords in accordance with the procedure stipulated in section 2 1911 Act. The invalidity of the
1949 Act would make the Hunting Act 2004 invalid. The HL held that there is no constitutional principle
or principle of statutory interpretation, which prevents the legislature from amending the constitution in
accordance with the provisions of a statute which empowers it to do so.

❑ Parliamentary Sovereignty in UK: from the book

❑ Is Parliament really sovereign: from the book

THE UK PARLIAMENT
From the book.

Differences from HoC Similarities with HoC

Unselected scrutinises
Lords (not MP’s)- life, heridatary and debates
people’s
Second chamber and has secondary role Select committees
Not paid whips
Judicial rules including law lords. speaker
Includes clerics- bishops and archbishops. Acts of checks on government

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