PARLIAMENTARY

SUPREMACY
J.Roberts-Daniel
PARLIAMENTARY SUPREMACY –
WHAT IS IT?
 Albert Dicey in Introduction to the Study of
the Law of the Constitution 1885 stated
Parliament under Parliamentary Supremacy
has 1. the right to make or unmake any law
whatever, 2. no person or body is
recognized by the law of England as having a
right to override or set aside the legislation
of parliament. 3. A valid Act of Parliament
cannot be questioned by the Court.
 As such based on Dicey’s definition 3 basic
rules for Parliamentary Supremacy can be
deduced:
1. Parliament is the supreme law- making body
and may enact laws on any subject matter;
2. no Parliament may be bound by a
predecessor or bind a successor;
3. no person or body – including a court of law
– may question the validity of Parliament’s
enactments.
 Under any constitution – whether written or
unwritten – there must be a source of
ultimate authority: one supreme power over
and above all other power in the state.
Under a written constitution the highest
source of power is the constitution as
interpreted by the Supreme Court. Under the
British constitution, in theory if not in
practice, the highest source of authority is
the United Kingdom Parliament and Acts of
Parliament are the highest form of law.
 The sovereignty of Parliament is not itself laid
down in statute: nor could it be, for the
ultimate law maker cannot confer upon itself
the ultimate power. The key to understanding
parliamentary sovereignty lies in its
acceptance by the judges within the legal
system. Sovereignty is therefore a
fundamental rule of the common law, for it is
the judges who uphold Parliament’s
sovereignty. For as long as the judges accept
the sovereignty of Parliament, sovereignty will
remain the ultimate rule of the constitution.
DEVELOPMENT OF
PARLIAMENTARY SUPREMACY
 Ordinances and Proclamations
 Statue of Proclamations 1539 give Henry VIII
wide powers of legislation without reference to
parliament by proclamation. Thus any
“Proclamation” by the King would be equivalent
to an act of Parliament. The statute of
Proclamations safeguarded the common law,
existing acts of parliament and rights of property
and prohibited the death penalty. Statute of
Proclamations was repealed in 1547 after legality
was questioned.
 Taxation
 Imposition of taxes is a matter for legislation. If
the crown could not levy taxes without the
consent of parliament the will of parliament
must prevail.
 Case of impositions (Bates case) – regulation of
trade the Crown can impose taxes
 Case of Ship Money (Hampden) – to defend the
realm
 Independence of the Judiciary
 Once the crown was allowed to choose judges
there was a risk of the subservience of judges to
the crown to ensure that judges did not hold
office at the pleasure of the crown. The Act of
Settlement 1700 provided that they should hold
office quamdiu se bene gesserint (during good
behavior) but can be removed by both house of
parliament.
APPLICATION OF
PARLIAMENTARY SUPREMACY
 Parliament free to make any law
 In the United Kingdom where there is no written constitution,
Parliament has unlimited law making power. the rule means that
there is no limit on the subject matter on which Parliament may
legislate. Thus Parliament may legislate to alter its term of
office. For example; In 1716, the life of a Parliament was limited
to three years under the Act of 1694. Fearing the effects of an
election, the government introduced, and Parliament passed, the
Septennial Act, extending the life of Parliament to seven years.
 Dicey argued, ‘Parliament made a legal though unprecedented
use of its powers’ (1885)
 Parliament may grant independence to dependent states,
whether dominions or colonies. Furthermore, Parliament may
legislate to limit its own powers in relation to dependent
territories, as shown by the Colonial Laws Validity Act 1865 and
the Statute of Westminster 1931
APPLICATION OF
PARLIAMENTARY SUPREMACY
 Only an Act of Parliament is Supreme
 The following cannot alter the law;
 Resolutions of Parliament
 Proclamations of the Crown
 Treaties
APPLICATION OF
PARLIAMENTARY SUPREMACY
 No Parliament may be bound by its
predecessor or bind its successor
 The rationale for this aspect of Dicey’s definition
of sovereignty lies in the recognition that for a
body to be sovereign it must be, in Austin’s
word, illimitable. For a sovereign body to be
subordinate to another body would be a logical
contradiction.
 It follows, therefore, that each Parliament must
enjoy the same unlimited power as any
Parliament before it. No Parliament can enact
rules which limit future Parliaments
APPLICATION OF
PARLIAMENTARY SUPREMACY
 The doctrine of Implied Repeal
 Where Parliament may pass, perhaps through inadvertence, a statute which,
while not expressly repealing an earlier Act, is inconsistent with it. When the
judges are thus faced with two apparently conflicting statutes, the doctrine of
implied repeal will come into play, the judges applying the latest statute in
time and deeming the earlier provisions to be impliedly repealed.
 Two cases which illustrate the principle in operation are Vauxhall Estates Ltd v
Liverpool Corporation (1932) and Ellen Street Estates Ltd v Minister of Health
(1934), each of which entailed similar facts. Section 7(1) of the Acquisition of
Land (Assessment of Compensation) Act 1919. The Housing Act 1925 provided
for a less generous scheme for compensation on the compulsory acquisition of
land than the 1919 Act. In both cases, the plaintiffs argued that section 7(1) of
the 1919 Act was binding on the courts and should be applied in preference to
the Housing Act 1925. If that claim were to succeed, the constitutional position
would be that the provisions of the 1919 Act were effectively ‘entrenched’ –
that is to say, have a superior legal status to that of other Acts of Parliament
and therefore binding – on a future Parliament. In the Vauxhall Estates case,
the Divisional Court held that the 1925 Act impliedly repealed the conflicting
provisions in the 1919 Act and, in the Ellen Street Estates case, the Court of
Appeal again ruled that the 1919 Act must give way to the 1925 legislation.
APPLICATION OF
PARLIAMENTARY SUPREMACY
 Grants of Independence
 The Statute of Westminster 1931 was enacted to give statutory force to the
constitutional convention that the United Kingdom Parliament would not
legislate for Dominions without their consent. Section 4 outlines:
 No Act of Parliament of the United Kingdom passed after the commencement
of this Act shall extend, or be deemed to extend, to a Dominion as part of
the law of that Dominion unless it is expressly declared in that Act that that
Dominion has requested, and consented to, the enactment thereof.
 This issue arose in British Coal Corporation v The King (1935). The Judicial
Committee of the Privy Council had to determine whether or not the
Canadian legislature had the power to regulate or prohibit appeals in criminal
matters to the King in Council. The Statute of Westminster had removed any
legislative incompetence from the Canadian legislature and accordingly the
legislature had full power to enact the section in question. It was accepted
by the Judicial Committee of the Privy Council that, whilst the power of the
Imperial Parliament remained ‘in theory unimpaired’ and that, ‘as a matter
of abstract law’, section 4 of the Statute of Westminster could be repealed
by the Parliament of the United Kingdom, in practice it could not be: ‘. . .
legal theory must march alongside practical reality.’
 in Manuel v Attorney General (1982). The issue was
whether the Canada Act 1982, passed by the United
Kingdom Parliament at the request and consent of
Canada, was a valid enactment. The plaintiffs’
argument was that the United Kingdom Parliament
had no power to amend the Constitution of Canada to
the detriment of the native population without their
consent. It was argued that section 4 of the Statute of
Westminster required not just the consent of the
federal Parliament but also that of all the provincial
legislatures and the native minority population. The
application failed. The Statute of Westminster
required only that the 1982 Act declared that Canada
had requested and consented to the Act.
 Retrospective Legislation
 This can be defined as any legislation which takes away or
impairs any vested right acquired under existing laws, or
creates a new obligation or duty. This means that
Parliament can render illegal and impose penalties on
actions which were perfectly legal when they were
committed.
 In Burmah Oil v Lord Advocate 1965 the House of Lords
held that the Crown was bound to compensate those whose
property had been destroyed by British Forces during World
War 2. This would have resulted in a massive drain on the
economy. Parliament then passed the War Damage Act
1965, Act recited that its purpose was to abolish rights at
common law to compensation in respect of damage to
property affected by the Crown during War.