THE LEGISLATIVE SUPREMACY OF PARLIAMENT

Objectives:

In this part of the course we are looking at the doctrine of legislative supremacy of
Parliament. At the end of it you should be aware that legislation is the fundamental
source of authority within our constitution. You will know how legislation is passed,
and how Acts of Parliament are treated by the courts.

What is the Doctrine? We have already seen that legislation is the most important
(in legal terms) of all the sources of law in the Constitution. This is because the courts
recognise legislation as the ultimate legal authority. The famous constitutional and
political theorist, Dicey in Introduction to the Law of the Constitution said:

"The principle of Parliamentary sovereignty may ... be thus described: Any

Act of Parliament, or any part of an Act of Parliament, which makes a law or
repeals or modifies an existing law, will be obeyed by the courts."

Dicey also stated:

"Parliament … has … the right to make or unmake any law whatever; and
… no person or body is recognised … as having a right to override or set
aside the legislation of Parliament."

This legislative supremacy has certain key consequences. It means that nobody (not
even a court of law) can override or set aside an Act of Parliament. Further, since
nobody can successfully challenge an Act of Parliament, Parliament can legislate on
any topic it likes. There are thus both positive and negative aspects to the doctrine.

What is Parliament?

In colloquial parlance the term is often used to describe the elected Chamber, the
House of Commons. Politically, this is the part of Parliament that can (potentially)
wield real political power. But although the House of Commons is the powerful
element within Parliament – it is not Parliament for our purpose.

In law, Parliament is the Queen in Parliament i.e. Queen, House of Lords and House
of Commons, combining in the legislative process. Look at any Act of Parliament;
note the words of enactment ("Be it Enacted …." etc). These words themselves
indicate that the enactment is that of the Monarch acting at the request of, and with
the assistance and advice of, the Lords and Commons.

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If you go to the statutes on-line, or to the statute book in the library, or to your texts.
Look carefully at the words of enactment of the Parliament Act 1949. Do you spot
any differences from the normal form of wording?

What are the origins of the doctrine? Here, we cannot avoid getting into the
politics of it all. Unless the political dimension is understood, the doctrine makes no
sense. The doctrine is stating in legal form what is basically a political fact. As we
have seen, in any State the courts respect the wishes of the ultimate legal authority. In
most countries that ultimate authority will be the constitution. Thus, for example, in
the United States, the supreme authority is the Constitution itself, which will be
upheld by the United States courts even to the extent of striking down legislation from
their equivalent to Parliament, Congress. But remember that the United States
constitution is only a constitutional recognition of a political and historic fact – the
result of the War of Independence and the Declaration of Independence.

Likewise in the United Kingdom, the doctrine is a recognition of the 17 th Century

constitutional struggles. The constitutional history of that period is dominated by the
struggles for authority and power between Monarch and Parliament, culminating in
the meeting of the Convention Parliament, in 1688. They declared themselves to be
Parliament, passed the Bill of Rights 1688, altered the line of Succession to the
Throne, and effectively established a new order not deriving its legitimacy from what
went before. It is the courts' acceptance of these political facts, and the statement in
Art 9 of the Bill of Rights that its proceedings were not to be brought into question in
any proceedings that underpin the doctrine.

Parliament is legislatively supreme because the courts recognise Parliament as

legislatively supreme; and for no other reason. There’s no inevitability in logical
terms that the courts regard Acts of Parliament as beyond challenge. It all, in the end,
comes down to what Professor Wade described as the "ultimate political fact" (see
1955 C.L.J. 172). His article, entitled The Basis of Legal Sovereignty is of course now
50 years old, but even now interesting to read – but only when you’ve got a really
good grasp of the issues.

So what can Parliament do?

In theory, anything it likes. The law recognises no legal limits to the scope or area of
operation of its power. Thus, it has changed the succession to the Throne (His
Majesty's Declaration of Abdication Act 1936), disestablished the Church of Ireland
(despite a statement in the Act of Union with Ireland that it would not do so), granted
Home Rule to what is now the Irish Republic, granted independence to many former
colonies, and granted indemnities to those who have broken the law (see e.g.
indemnity legislation legalising activities of British soldiers in Ulster). Nothing is

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legally beyond its reach. It can reverse retrospectively the decisions of courts of law
(see War Damage Act 1965 reversing Burmah Oil v Lord Advocate), and could
theoretically even repeal the Acts granting independence to former colonies. Go on-
line, or to the library and look at Lord Denning’s judgment in Blackburn v Attorney-
General [1971] 2 All ER 1381. Look at what he says about Acts of Independence, or
about the Statute of Westminster 1931 (which conferred quasi- legislative authority on
some “dominions”). Above all note the distinction he draws between legal theory and
political reality.

All this is, of course, pure theory. There are many practical restraints upon what
Parliament can or will do: political, international, economic, social and moral. The
idea of an Act of Independence being repealed is clearly quite absurd. Yet, vital
though these factors may be in a wider context, they are not of importance here: what
matters is how an English Court will treat what is contained in an Act of Parliament.

An English court will not recognise any restraints upon what Parliament can do; it
will not declare invalid an Act of Parliament. See the words of Lord Reid in
Madzimbamuto v Lardner-Burke:

"It is often said that it would be unconstitutional for the UK Parliament to do

certain things, meaning that moral, political and other reasons against doing
them are so strong that most people would regard it as highly improper if
Parliament did those things. But that does not mean that it is beyond the
power of Parliament to do such things. If Parliament chose to do any of them
the Courts would not hold the Act of Parliament invalid."

And it’s this principle which provides the explanation for s 4 of the Human Rights Act
1998. As we have seen that allows a court to make a “Declaration of
Incompatibility”, but does not permit a court to declare invalid an Act of Parliament.
However, that – in constitutional terms – may be misleading – yes, it’s literally
correct, and preserves the traditional position, but if the reality is that the courts prefer
to use their s 3 interpretative powers to “read down” [ie imply] words into a statute
they may achieve much the same as if they had sought to overturn a statute. When,
later in the course, you read R v A, you might care to ponder this proposition

So, what are the implications of this doctrine that divorces legality from
practicality?

Clearly, the doctrine of supremacy interacts with other doctrines of constitutional law
or theory. If Parliament can do anything, and no Act of Parliament can be declared
invalid, then those who control Parliament have their hands on, theoretically at any
rate, the means of controlling the law itself. The doctrine of rule of law and principle
of legality require the executive to have lawful authority to interfere with an
individual’s rights - but of course it has control (potentially) of the mechanisms for
creating lawful authority. After all, in most situations the House of Commons is
dominated by the Government, and – because of the Parliament Acts 1911 and 1949
and restrictions on the powers of the monarch – can usually get its own way.

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The functions of the courts within the constitution are clearly defined and limited by
the doctrine of legislative supremacy. What is interesting is to see how the courts
grapple with the problems it causes.

Can Parliament restrict what it can do?

Perversely, perhaps, it cannot. Although Parliament can do anything, the necessary

result of that is that though an Act might purport to impose a limitation as to what it
will do in the future ("Subject matter limitation"), such a limitation is ineffective in
law. The inability to restrict the all powerful nature of Parliament is a necessary
exception to legislative supremacy, because otherwise the freedom of action of the
executive, acting through Parliament, would gradually be eroded. A Government
might seek to use its control of the legislature to prevent changes in the law by its
political opponents when they came to power.

An example of Parliament attempting to impose subject matter limitations is to be

found in the Statute of Westminster 1931 (which purports to restrict the power to
legislate for some former colonies) which cannot be regarded as binding its successors
(British Coal Corp. v The King).

Since there is no legal limit on Parliamentary power, and since none can exist within
our constitution as understood at present, it follows that Parliament can repeal any
earlier Act of Parliament. This can be expressly, or by implied repeal.

What is Implied Repeal?

The courts always give effect to the will of Parliament, as expressed in the latest
expression of that will i.e. in the latest Act of Parliament. Case law such as Vauxhall
Estates v Liverpool Corporation [1932] 1 KB 733 and Ellen St Estates v Minister of
Health [1934] All ER Rep 385 confirms that the duty of the Courts is to give effect to
the Act before it: if the provisions thereof are inconsistent with an earlier Act, then
those earlier provisions are, to the extent of the inconsistency, of no effect. This
doctrine is an inevitable part of the basic unchallengeability of an Act of Parliament.
See the observations of Maugham LJ in Ellen St Estates:

"The Legislature cannot, according to our Constitution, bind itself as to the

form of subsequent legislation, and it is impossible for Parliament to enact
that in a subsequent statute dealing with the same subject matter there can be
no implied repeal. If in a subsequent Act Parliament chooses to make it plain
that the earlier statute is being to some extent repealed, effect must be given
to that intention just because it is the will of Parliament".

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Even express provision purporting to prevent implied repeal is unlikely to be
successful, because that in itself would be attempting to restrict the basic principle:
the courts give effect to the will of Parliament as expressed from time to time.

So, there are no irrepealable laws?

Yes – that’s right, at any rate in theory. Go back to what Lord Denning said in
Blackburn v Attorney-General. And then look at what Sir Robert Megarry said at first
instance in Manuel v Attorney General [1982] 3 All ER 822. Look at how he deals
with the question – are there any limits on what Parliament can do? The case went to
the Court of Appeal – we return to that a little later

And all statutes are the same?

Well, in one sense, “Yes”. No matter what the statute is, theoretically, it can be
repealed.

And yet, to say that is really to live in an unreal world. Statutes are not in reality all
the same. Don’t you think that the Bill of Rights is pretty fundamental? What about
the Human Rights Act 1998? Or the European Communities Act 1972? We do have
statutes that courts regard as fundamental or “constitutional” - even though that might
be a strange concept for traditionalists nurtured on Dicey’s turn–of-the century (20th!)
analysis.

Look carefully at the following passage, taken from an article entitled Democracy
through Law written by one of the Law Lords, Lord Steyn, and to be found at [2002]
EHRLR 723.

“The supremacy of Parliament no longer means what it did in the time of

Dicey. It is a more complex concept. Subject to Parliament’s power to
legislate expressly to withdraw from …[the European Community] – an
unthinkable hypothesis – our membership created a divided concept of legal
sovereignty. This is illustrated by the second Factortame case. There was a
clash between Community law and a later Act of the United Kingdom
Parliament. Within the Community legal order, the Queen in Parliament is
not sovereign. Community law is supreme The House of Lords granted an
injunction to forbid a Minister from obeying the Act of Parliament. The Act
was disapplied. Only an express enactment of Parliament could terminate
our membership of the European Union. The view may also prevail that
arguments that the Human Rights |Act 1998 was impliedly repealed by a later
statute would not be upheld by the courts: it is a constitutional measure and
only an express repeal may be recognised. Similarly, in regard to the
legislation devolving powers to Northern Ireland, Scotland and Wales, the
better view may be that there is no scope for an implied repeal. If Parliament

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 wishes to abrogate a political settlement of a constitutional character, it will
have to say so expressly. The Westminster Parliament has qualified its own
sovereignty.”

Leaving aside quibbles about terminology (notice how Lord Steyn uses the terms
supremacy and sovereignty interchangeably), this points clearly to the fact the courts
view some statutes – or rights , or principles – differently from others. Decided cases
point us in a similar direction. In R v Secretary of State for the Home Department, ex
p Simms [2000] 2 AC 115. Lord Hoffman said:

“Parliamentary sovereignty means that Parliament can, if it chooses,

legislate contrary to fundamental principles of human rights. The Human
Rights Act 1998 will not detract from this power. The constraints upon its
exercise by Parliament are ultimately political, not legal. But the principle of
legality means that Parliament must squarely confront what it is doing and
accept the political cost. Fundamental rights cannot be overridden by general
or ambiguous words. This is because there is too great a risk that the full
implications of their unqualified meaning may have passed unnoticed in the
democratic process. In the absence of express language or necessary
implication to the contrary, the courts therefore presume that even the most
general words were intended to be subject to the basic rights of the
individual.”

To summarize, there are no irrepealable laws – but some may only be repealable
expressly – and that, of course, tells us little about whether they can, in reality, be
repealed at all. Take, for example, the Scotland Act 1998. Can you imagine for a
moment that it would be practically possible to repeal that Act except as part of a
package giving the Scots greater powers over their own government? To talk of that
Act being repealable may be legally correct – but attracts a distinct whiff of unreality!

Now look at Thoburn v Sunderland City Council [2002] 4 All ER 156

Read this case carefully, looking not so much at the facts as what it says about the
nature of statues. In particular note what the court says about the European
Communities Act 1972 – that it is a “constitutional statue” – ie a statute which
conditions the legal relationship between citizen and state in some general
overarching manner or enlarges and diminishes the scope of what are now regarded as
fundamental constitutional rights. Such as statute cannot be impliedly repealed.

In what way can Parliament express its will?

It is to Acts of Parliament that the Courts will give the obedience already described.
There are various consequences which flow from this.

Measures which fall short of being Acts of Parliament cannot bind the Courts and are
subject to judicial scrutiny. Thus a Resolution of one House of Parliament is not an
Act, and has not the force of law. That is illustrated by Bowles v Bank of England,
where a budget resolution of the House of Commons was held not validly to require

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payment of the tax therein demanded. Notwithstanding that the resolution was
predicated on the eventual passage of the Finance Act for that year and was based on
current practice, only the Queen in Parliament can raise taxes (see especially the Bill
of Rights). As a result, the law now provides, in Provisional Collection of Taxes Act
1968:

"…where the House of Commons passes a resolution which … provides for

the renewal of a further period of any tax in force or imposed during the
previous financial year … and contains a declaration that it is expedient in
the public interest that the resolution should have statutory effect … the
resolution shall … have statutory effect as if contained in an Act of
Parliament …"

Even if the resolution in Bowles v Bank of England had been by both Houses it would
still have been insufficient, as would be a ministerial statement or proclamation be
law unless authorised by Statute or the Royal Prerogative.

Acts of Parliament frequently delegate to Ministers (or other bodies) powers to make
law on behalf of Parliament; the law resulting is known as delegated legislation (and
often by the term "statutory instrument", which has certain technical implications).
This law-making function should not be confused with the grant of powers or duties
to fulfil other functions such as the grant of licences or the award of funds, when the
recipient of such powers exercises them is acting ministerially not legislatively. Look
again at one example of a sweeping power we have already noted in the context of the
separation of powers – s 10 of the Human Rights Act 1998.

Although the courts cannot challenge an Act of Parliament, no such limitation applies
to delegated legislation. A body making delegated legislation can only do what
Parliament has authorised them to do in the enabling Act, and the Courts can, on an
application by someone affected, examine what is being done to ensure that the
Minister or other body has kept within his authority and power (i.e. has acted intra
vires). Thus, in R v H.M.Treasury, ex parte Smedley, Sir John Donaldson observed:

"… Whilst Parliament is entirely independent of the Courts in its freedom to

enact whatever legislation it sees fit, legislation by Order in Council,
statutory instrument or other subordinate means is in a quite different
category, not being Parliamentary legislation. This subordinate legislation is
subject to some degree of judicial control in the sense that it is not within the
province and authority of the Courts to hold that particular examples are
authorised by statute, or as the case may be by the common law, and so are
without legal force or effect."

What is an Act of Parliament?

Parliament expresses its legislative will through Acts of Parliament. But, what is an
Act? As already noted, legislative power is vested in the Queen in Parliament. But,
suppose it is said that some other procedure should be followed; could a court enforce
this other procedure? The balance of English case law very firmly shows that a

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"manner and form" restraint will not be effective in law. In Edinburgh & Dalkeith
Railway Co v Wauchope, Lord Campbell stated:

"All that a court of justice can do is to look to the Parliamentary roll: if from
that it should appear that a bill has passed both Houses and received the
Royal Assent, no Court can inquire into the mode in which it was introduced
into Parliament, nor into what passed in Parliament during its progress in its
various stages through both Houses."

This dictum received judicial approval in British Railways Board v Pickin [1974] 1
All ER 609 and is consistent with the principle contained in the Bill of Rights that
what goes on in Parliament is not to be questioned in any proceedings in a Court of
Law. Read this case carefully, whether on line or in the law library or your texts.
Note the justifications for the position taken, including the ancient doctrine of
parliamentary privilege.

This case does not, however, completely answer the question. Whilst the Courts must
not question the internal workings of Parliament, they are entitled to satisfy
themselves that what is before them is something which it is their duty to apply, and
not, say, simply a Resolution of one House (see Manuel v Attorney General). A
resolution of our House of Parliament is not, generally, effective to create law
(Bowles v Bank of England [1913]) Ch 57. You’ve already read Sir Robert Megarry’s
judgment – now read the Court of Appeal decision in Manuel, either on-line or in
the report or text. Now bring all its discussions about “subject matter” and “manner
and form” restrictions together.

There is some Commonwealth Authority to support the view that the courts are
entitled to examine whether the procedures laid down for legislation have been
followed. Cases such as Attorney General for N.S.W. v Trethowan , Harris v Minister
of Interior , and Bribery Commissioner v Ranasinghe have all given some support to
the view that procedural requirements can be binding. You will find them discussed
by Parpworth in his Core Text. They were all decided, however, in the light of the
procedural requirement being laid down by a constitutional document (of varying
forms) which was giving legitimacy to the legislative procedure in question. The
differing situation (accepted as different in Ranasinghe) is well summarised in the
judgement of Barwick CJ in the Australian case of Cormack v Cope (1974) 131 CLR
432:

"We are not here dealing with a Parliament whose laws and activities have
the paramountcy of the Houses of Parliament in the United Kingdom. The
law making process of the Parliament in Australia is controlled by a written
constitution ... It has been pointed out by the Privy Council [in Ranasinghe]
… that where the law making process of a legislature is laid down by its
constanting instrument, the Courts have a right and duty to ensure that the
law making process is observed … there is no parliamentary privilege which
can stand in the way of this Court's right and duty …"

The Commonwealth authorities must be read with caution, and with the recognition
that different issues arise. Making these allowances, however, some academics argue
that English Courts can rule as to whether the rules of recognition have been fulfilled,

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and that they can be changed. Thus, the argument goes, Parliament must comply with
the legislative procedure laid down from time to time by law. Parliament has in some
instances changed the legislative processes by the passage of the Parliament Acts
1911-1949. These make the Assent of the House of Lords for certain Bills in certain
situations unnecessary. Why not change in other ways? By contrast, other academics
reject this view (see, e.g. Wade at 1955 CLJ). All that matters, it is argued, is that a
document purports to be an Act by containing the relevant words of enactment.

This dichotomy of opinion is complex and difficult. Do not struggle too much The
case law shows that the courts have not deprived themselves of the right to decide
what is an Act. On the other hand, the courts have not in England gone beyond
establishing the presence of the appropriate words of enactment. The theoretical
issues remain. Because these questions are of a theoretical nature, it should not be
assumed they are of little significance.

What other questions does the doctrine raise?

Note the dangers inherent in the doctrine. The danger was once described by Lord
Hailsham as an "elective dictatorship". Government (by definition) controls the
House of Commons which, as a result of the cumulative effect of law and convention,
controls the legislative process. If there are no legal or constitutional bars upon what
Parliament can do, what is to prevent abuse through the law by the Executive? Are
practical limitations enough?

Note what Lord Irvine said in 1999 (Principle and Pragmatism: The Development of
English Public Law under the Separation of Powers, in Human Rights Law under the
Separation of Powers, in Human Rights constitutional law and the Development of
the English Legal System, Hart Publishing, 2003).

"A second important factor also underlies the courts assumption of great
responsibility for scrutinising the executive. Just as the role of Government
was expanding, so the ability of Parliament to provide an effective check on
the executive began to decline. This was largely the result of the growth of
organised political parties. Since the majority of the members of the House
of Commons are also members of whatever party forms the government of
the day, and in light of the highly disciplined nature of all modern political
parties, the capacity of Parliament to hold the executive to account is
necessarily limited. It is against this background that the courts development
of administrative law can, once again, be seen as a pragmatic response to a
pressing constitutional need. As Lord Mustill put it (in R v Secretary of State
for the Home Department, ex Fire Brigades Union [1999] 2 Al 513 at 567
'to avoid a vacuum in which the citizen would be left without protection
against a misuse of executive powers the courts have had no notion but to
occupy the clear ground [left by Parliament] in a manner, and in areas of
public life, which could not, have been forseen 30 years ago'.

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The European Dimension

We saw earlier that our membership of the European Community raises real issues.

European Law now forms part of UK law. And – whatever we think – European Law
doesn’t recognise the supremacy of Parliament. In one case –Costa v ENEL - the
Court of Justice said this:

“The transfer by the states from their domestic legal system to the
Community legal system of the rights and obligations arising under the
Treaty [of Rome] carries with it a permanent limitation of their sovereign
rights against which a subsequent unilateral act incompatible with the
concept of the Community cannot prevail.”

So how can we square this with this theoretical doctrine of supremacy? The passage
from Lord Steyn’s article, cited earlier, gives you the answer. But the best way of
understanding the response is to look at Lord Bridge’s speech in Factortame Ltd v
Secretary of State for Transport (No 2) [1991] 1 All ER 70.

Reprise

Parliament can do anything – in theory. It does so only through Acts of Parliament.

No court of law can declare an Act of Parliament invalid. But we must look at the
doctrine in the modern context.

Now look at the extracts from the decision in Thoburn v Sunderland City Council
[2002] 4 All ER 156 (at Appendix 1). Read them carefully. When you have you will
be in a good position to answer all the questions in the test entitled ‘The Thoburn
Case’ – Test your understanding of the issues.

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