3.1 A brief overview of parliamentary sovereignty, or ‘parliamentary supremacy’

3.1.1 One of the key characteristics of the British constitution is the dominance of the legislature, Parliament. A result of the historical struggle between the Crown and Parliament (culminating in the Bill of Rights 1688), the doctrine is not laid down in statute but is a fundamental rule of common law. In other words, it is the judiciary that has created and maintained the doctrine as a basic principle of the constitution.

3.1.2 The classic definition of parliamentary supremacy is that offered by Dicey:

• • Parliament is the supreme law-making authority;
  
• • Parliament is competent to legislate on any subject matter;
  
• • no Parliament can be bound by a predecessor or bind a successor; and
  
• • no other body has the ability to override or set aside an Act of Parliament.

3.1.3 You should note that only an Act of Parliament is ‘supreme’. Resolutions of either House do not have the force of law unless put on a statutory basis (Stockdale v Hansard (1839)); proclamations of the Crown issued under the prerogative do not have the force of law; and international treaties, also entered into under the prerogative, cannot have the force of law, unless incorporated by statute.

3.2 Potentially unlimited legislative power for Parliament?

3.2.1 Parliament theoretically has unlimited legislative power – that is, the potential ability to create any law.

3.2.2 This ‘unlimited legislative power’ principle means that Parliament traditionally has the authority to legislate on any subject matter. Examples include the following:

• • Parliament can change the succession to the throne, for example, Act of Settlement 1700; HM Declaration of Abdication Act 1936.
  
• • Parliament’s enactments override the common law and can be retrospective, for example, Burmah Oil Company v Lord Advocate (1965).
  
• • Parliament can change its own processes for the creation of statutes, for example, Parliament Acts 1911 and 1949.
  
• • Parliament can grant independence to dependent States, for example, Nigeria Independence Act 1960; Zimbabwe Independence Act 1979.
  
• • Parliament can legislate with retrospective effect, for example, War Damages Act 1965; War Crimes Act 1991.
  
• • Parliament can legislate contrary to international law, for example, Mortensen v Peters (1906); Cheney v Conn (1968).

3.3 Exploring the details of legislative supremacy

3.3.1 It is often observed that ‘No Parliament can be bound by a predecessor or bind a successor’. This means that each and every Parliament must be supreme in its own right.

3.3.2 Consequently, no Parliament can be bound by a preceding Parliament, or bind a future one. The mechanism for securing this principle is known as the doctrine of implied repeal.

3.3.3 Parliament may expressly repeal any previous law. The courts must then give effect to the later statute. However, Parliament may not expressly repeal earlier legislation leaving two or more conflicting statutes. The doctrine of implied repeal then applies, in that the courts are required to apply the latest statute, considering earlier law to be impliedly repealed – see Vauxhall Estates Ltd v Liverpool Corporation (1932) and Ellen Street Estates Ltd v Minister of Health (1934).

3.3.4 The consequence of the application of implied repeal is that no legislation can be entrenched, in other words protected from future changes in the law that Parliament may wish to make.

3.3.5 It is also often claimed that ‘No other body has the ability to override or set aside an Act of Parliament’.

3.3.6 Before the Bill of Rights 1688, it was not uncommon for the courts to declare an Act of Parliament invalid because it did not conform to a higher, divine law or the law of nature (Dr Bonham’s Case (1610) and Day v Savadge (1615)).

3.3.7 The courts no longer assert this authority and instead apply the principle that once an Act is passed, it is the law. This is known as the enrolled Act rule. Consequently, the enforcement of the procedural rules for creating an Act is in the hands of Parliament and the courts will refuse to consider whether there have been any procedural defects – see Edinburgh and Dalkeith Railway v Wauchope (1842), Lee v Bude and Torrington Junction Railway Co (1871) and Pickin v British Railways Board (1974). All a court can do therefore is to construe and apply Acts of Parliament.

3.4 Limitations to parliamentary supremacy

3.4.1 There are said to be limitations to parliamentary supremacy relating to what is known as the ‘manner and form’ of legislation, and the way that legislation is created. Typically controversy arises in this context if the House of Commons attempts to legislate in a manner that precludes the approval of new legislation by the House of Lords, also part of the Westminster Parliament; something that is possible under the Parliament Acts.

3.4.2 An example of this can be seen in the Colonial Laws Validity Act 1865 and its interpretation in Attorney-General for New South Wales v Trethowan (1932). In this case the New South Wales legislature was bound in the way in which it abolished its Upper House.

3.4.3 However, this precedent is a weak one when applied to the question of whether the British Parliament can limit itself as to the manner and form of subsequent legislation; the New South Wales legislature was different from the British Parliament in that it was a subordinate legislature, consequently bound to follow the law prescribed by Westminster.

3.4.4 In R (Jackson) v Attorney-General (2005) it was argued that the Parliament Act 1949 was invalid and that consequently the Hunting Act 2004 passed under it was also invalid, because the parliamentary House of Lords was bypassed in the creation of the 2004 Act using the mechanism allowed for in the 1949 Act. The judicial House of Lords held that the 1949 Act was valid. Consequently it appears that the Parliament Acts could technically be used to achieve constitutional change without the consent of the House of Lords.