3 Parliamentary supremacy Introduction In this chapter we consider a crucial, if controversial, feature of the UK constitution: parliamentary supremacy.

. We will examine the traditional approach, favoured by legal writers and politicians known as 'political constitutionalists', which treats the political process and Parliament as having supreme power and legitimacy. Ultimately, according to this view, the courts will follow the expressed will of Parliament regardless of the content of the statute.

 We will then consider the legal writers, including some senior judges, who are described as 'legal constitutionalists'. heir approach is to argue that the judiciary should have and, indeed, does have residual powers to strike out Acts of Parliament which are contrary to fundamental rights or constitutional principles. Issues which are relevant to the arguments of the legal constitutionalists include the !arliament "cts #$## and #$%$, the "ct of Union with &cotland, the status of 'U law in the United Kingdom as well as the (uman )ights "ct #$$* +()",.

3.1

he traditional view

!arliament above all he legal writer -icey defined parliamentary supremacy as follows: o .either more nor less than this, namely, that Parliament thus defined has, under the 'nglish constitution, the right to make and unmake any law whatsoever/ and, further, that no person or !ody is recognised by the law of 'ngland as having a right to override or set aside the legislation of Parliament. Parliament, as understood by -icey, meant the "ouse of #ommons, the "ouse of $ords and the %ueen collectively.

 (is statement makes two propositions: o first, all Acts of Parliament, whatever their purpose, will be o!eyed !y the courts/ and, o secondly, no person or !ody can override an Act of Parliament.

0egal basis1 !arliament are sources of statue he obvious 2uestion which follows from -icey's assertion is: what is the legal !asis of this power of parliamentary supremacy, given that +as e3plained in 4hapter 5 above, there is no single document called ' he 'nglish 4onstitution'6 Wade has argued: o he rule is a!ove and !eyond the reach of statute...because it is itself the source of the authority of statute... he rule of judicial o!edience is in one sense a rule of common law, but in another sense 1 which applies to no other rule of common law 1 it is the ultimate political fact upon which the whole system of legislation hangs.

o $egislation owes its authority to the rule: the rule does not owe its authority to legislation.

7udicial decision confirm !arliament &upremacy here are numerous instances of 8udicial decisions where the courts have affirmed the supremacy of "cts of !arliament. In &ad'im!amuto v $ardner( )urke +#$9$,, where the &outhern )hodesia "ct #$9: was considered following the unilateral declaration of independence of the white minority government of &outhern )hodesia +now ;imbabwe,, the court held that the "ct was still valid and &outhern )hodesia remained a <ritish colony. 0ord )eid stated: o It is often said that it would !e unconstitutional for the *nited +ingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if !arliament did these things.

o <ut that does not mean that it is beyond the power of !arliament to do such things. o If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.

3.,

he enrolled )ill rule

he courts- reluctance to challenge the validity and authority of an "ct of !arliament is illustrated by their approach to arguments a!out defects or procedural irregularities in particular Acts. In .din!urgh and /alkeith 0ly #o v 1auchope +#*%5,, the (ouse of 0ords rejected the argument that an Act was invalid !ecause the claimant had not !een given notice of it in accordance with parliamentary 2tanding 3rders.

 0ord 4ampbell stated, obiter: o "ll that a court of 8ustice can look to is the parliamentary roll/ o they see that an Act has passed !oth "ouses of Parliament, and that it has received the 0oyal Assent, and no court of 8ustice can in4uire into the manner in which it was introduced into Parliament, what was done previously to it being introduced, or what passed in !arliament during the various stages of its progress through both (ouses of !arliament. his statement was affirmed by 0ord )eid in <ritish )ailways <oard v !ickin +#$=%,.

3.3 /octrine of implied repeal "s we have seen, one of the key features of the traditional approach to parliamentary supremacy is the potential for any Act of Parliament to !e amended or repealed !y a later Act. !arliamentary draftsmen take great pains to review the conte3t of how a new <ill is to fit into the framework of e3isting "cts. >ften the &chedules of a <ill will list a series of specific repeals and amendments of e3isting "cts. 2ometimes, however, an unanticipated inconsistency !etween two Acts of Parliament !ecomes apparent. he courts are faced with the dilemma of deciding between the two "cts.

 *nder the doctrine of implied repeal, the later Act is deemed to impliedly repeal the earlier Act to the e3tent that the two "cts are incompatible.

.llen 2treet .states $td v &inister of "ealth +#$?%, Involve 5 inconsistent "ct: "c2uisition of 0and +"ssessment of 4ompensation, "ct #$#$ and the (ousing "ct #$5:. he "c2uisition of 0and +"ssessment of 4ompensation, Act 1515 provided a scheme of compensation for compulsory purchase of land which was more generous than the scheme provided in the "ousing Act 15,6. I asked counsel what meaning he attached to those words, and he said they meant nothing, because the "ct of #$#$ had said that nothing inconsistent with it shall have any effect. hat appears to me absolutely contrary to the constitutional provision that !arliament can alter an "ct which it has previously passed.

 It can do so by repealing the previous "ct, and I gather counsel admits that, if it does that, it does not matter that the "ct of #$#$ has said that that shall have no effect. )ut it can also do it in another way, namely, by enacting a provision clearly inconsistent with the previous Act.

4ommentary: "s we can see from 'llen &treet 'states, under the doctrine of implied repeal, the later Act is deemed to impliedly repeal the earlier Act to the e3tent that the two Acts are incompati!le.

#ontrast: 4onstitutional &tatute cannot be implied repealed he doctrine of implied repeal was considered more widely in ho!urn v 2underland #ity #ouncil +5@@5,, when it was held that the .uropean #ommunities Act 157, could not !e impliedly repealed by the Weights and Aeasures "ct #$*:. 0aws 07 identified a class of -constitutional statutes- which define fundamental rights. In his opinion a constitutional statute: o conditions the legal relationship !etween citi'en and state in some general, overarching manner, or o enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

 (e listed e3amples of such "cts, including the &agna #arta, the )ill of 0ights 1895, the Acts of *nion, the 0eform Acts, the .uropean #ommunities Act 157,, the 2cotland Act 1559, the :overnment of 1ales Act 1559 and the "0A. (e argued that -constitutional statutes- can only !e repealed expressly and not impliedly: o he court would apply this test: is it shown that the legislature-s actual 1 not imputed, constructive or presumed 1 intention was to effect the repeal or a!rogation;

 &ubse2uently, he e3plained the implications in relation to parliamentary supremacy: o It would not mean the loss of sovereignty. o It would merely specify the conditions in which Parliament could change the constitutional law. o "nd the conditions would !e just the same as those which presently apply if Parliament seeks to change constitutional principles established by the common law.

Pro!lem in this decision< 1not yet approved by 4>"B&4, and who to determine the constitutional statute here are pro!lems with $aws $=-s arguments, not least because they have not yet !een approved !y the #ourt of Appeal or 2upreme #ourt. here is also the difficulty of identifying who decides whether a particular statute is a constitutional statute 1 the courts or Parliament6

3.> he -manner and formargument >ne of the ways in which the traditional approach to parliamentary supremacy has !een challenged has been the argument that, although Parliament has no limits on the su!ject matter on which it legislates, !ut the manner and form in which it legislates can !e limited. Under this argument, special procedures for making legislation, such as re2uiring a referendum, can !e imposed. If the set procedures are not followed, the courts could, it is argued, prevent the su!se4uent Act from passing.

4ommonwealth case1 if manner and form did not followed as stated in statute, 4ourt able to strike down the "ct >ne of the cases which has been used to support this argument is &inister of the Interior v "arris +#$:5,. his &outh "frican case concerned a provision in the *+ Parliament-s 2outh Africa Act 15?5 which created the Union of &outh "frica from the previous <ritish colony. *nder the 2outh Africa Act 15?5, an attempt was made to preserve the existing voting rights of a mi3ed1race community known as '4ape 4oloureds' by re4uiring a two(thirds majority of !oth "ouses of the new *nion of 2outh Africa parliament before these rights could be removed. "s part of the introduction of apartheid in #$%*, the 2outh African parliament removed the voting rights under an "ct which was

passed without the two(thirds majority. he 2upreme #ourt of 2outh Africa held that the re4uirements of the 2outh Africa Act 15?5 were entrenched and the 15>9 Act was therefore invalid. Ainister of the Interior v (arris +#$:5, is, of course, a #ommonwealth case and not !inding in the *nited +ingdom. " more fundamental problem with relying on it in the UK conte3t is that it reflects a relationship !etween a legislature and a -higher- law, in this case imposed !y the *+ Parliament in 15?5.

3.6 Parliament Acts 1511 and 15>5 In the United Kingdom, there is no written documentary constitution setting out the procedures for legislating. It is useful, nonetheless, to consider the Parliament Acts 1511 and 15>5 under which special procedures can !e applied, in specified circumstances for passing "cts of !arliament without the consent of the "ouse of $ords.

3.6.1 "istorical !ackground he !arliament "ct #$## was passed following a constitutional struggle between the 0iberal government, which controlled the (ouse of 4ommons, and a 4onservative1 dominated (ouse of 0ords. When the 0i!eral government was not a!le to get its social welfare legislation approved by the (ouse of 0ords, the Prime &inister threatened to overturn the #onservative majority in the "ouse of $ords by creating large numbers of 0iberal peers. 'ventually, the "ouse of $ords approved the Parliament Act 1511. he Parliament Act 15>5 su!se4uently shortened the re4uired period of delay before the procedures for obtaining the royal assent without the approval of the "ouse of $ords could !e used.

3.6., +ey provisions 2ection 1: his provides that -money )ills- +covering ta3ation and finance, approved by the (ouse of 4ommons must, so long as there is at least one month remaining before the end of the parliamentary session, !e approved without amendment within one month !y the "ouse of $ords.

 &ection 5: " non(money Pu!lic )ill can be approved if the following timescale has been met:

" parliamentary session usually lasts for one year starting in the spring.

4onsider the following fictitious <ill: he -rainage +Aiscellaneous >perations, <ill had its second reading approved by the (ouse of 4ommons on 1 =uly ,?1, and was subse2uently approved by the (ouse of 4ommons and rejected !y the "ouse of $ords. he minister proposing the <ill is aware that there is implacable political hostility to the proposals in the <ill by the (ouse of 0ords and no scope for compromise. &he wishes to reintroduce the unchanged <ill in the ne3t parliamentary session using the !arliament "cts procedure. 1hat time limit must she ensure is o!served; he first parliamentary session is the 5@#51#? session. he next parliamentary session will begin in spring ,?13.

 &he must ensure that the <ill is not approved by the (ouse of 4ommons until after # 7uly 5@#5 Identify a type of Pu!lic )ill +in addition to a money )ill, for which the Parliament Acts procedures are not availa!le. A )ill proposing to extend the life of a Parliament !eyond five years< s.,@1A.

'ven though bypass the (>0 seemed that they did not CinvolvedD in legislative process which they supposed to do so, !ut they still involved in the legislative process which pursuant to the "ct !arliament B!ypass is also within legislative processC "n unusual feature of "cts passed under the !arliament "cts procedures is the 'enacting formula' at the beginning of the "ct which states: o <e it enacted by the Eueen's most '3cellent Aa8esty, by and with the advice and consent of the 4ommons, in this present Parliament assem!led, in accordance with the provisions of the Parliament Acts 1511 and 15>5, and by the authority of the same, as follows.

 he significance of this formula was considered by 0. .kins in '"cts of !arliament and the !arliament "cts' +5@@=, #5? 0E) $#: o !arliament intended the #$## "ct to serve as a decision1making procedure, ena!ling the %ueen, $ords and #ommons to legislate even when the $ords disagreed. o If the "ct bypassed the 0ords altogether, it would be a delegation of authority... o hus the $ords do participate in legislative acts pursuant to the Parliament Acts. he authority they share is e3ercised to enact legislation and the 0ords should understand the resulting Act to !e in some sense their Act, in the same way that the minority in the (ouse understands the vote of the ma8ority to settle how the (ouse acts.

Few "ct passed under this "ct show (>0 defer to peopleDs will <esides the !arliament "ct #$%$, only a few Acts have !een passed under the Parliament Acts procedure. his reflects the normal deference of the "ouse of $ords to the democratic will of the people as e3pressed in the voting of the (ouse of 4ommons, as well as the willingness of both (ouses to compromise. "cts which were passed under these procedures include the :overnment of Ireland Act 151>, the 1ar #rimes Act 1551 and the "unting Act ,??>.

"ct which bypass (>0 still is a valid primary legislation In =ackson and others v A(G +5@@:, the opponents of the (unting "ct 5@@%, which banned the hunting of wild animals with dogs, argued that the Parliament Act 15>5 was invalid !ecause, as delegated legislation, it was outside the powers of the Parliament Act 1511. he (ouse of 0ords held that the Parliament Act 15>5 was valid primary legislation +see 'kins above, and was valid along with the (unting "ct 5@@%. he fact that only two of the three constituent elements of !arliament had approved it did not make it delegated legislation.

3.8

he Act of *nion 17?8

&cot 0awyer argued that principle parliamentary supremacy did not applied to &cotland 4onstitution his "ct provided for the union of 2cotland and .ngland -for ever after-. It contained a number of provisions which were intended to !e entrenched and !ind the future *nited +ingdom parliament. "lthough there have subse2uently been changes in legislation affecting the "ct of Union, some 2cots lawyers have argued that restraints have !een recognised and complied with in practice.

.o "ct of !arliament declared by &cot 4ourt invalid if inconsistent with &cot 4onstitution yet

In &ac#ormick v $ord Advocate +#$:?,, ob8ections were raised as to the designation of the new %ueen .li'a!eth as -%ueen .li'a!eth the 2econd- when %ueen .li'a!eth I had only !een 4ueen of .ngland and not 2cotland +for a historical time line of the 'nglish and &cottish monarchs, see: www.britroyals.comBrulers.htm,.

he claim failed but in obiter comments 0ord 4ooper stated: o HtIhe principle of the unlimited sovereignty of Parliament is a distinctively .nglish principle which has no counterpart in 2cottish constitutional law. he force of this statement has been undermined by the fact that no 2cottish court has held an Act of Parliament to !e invalid on the basis of inconsistency with the Act of Union.

3.7 Parliamentary supremacy and the .uropean *nion We will e3amine the relationship !etween .* law and *+ law in more detail in 4hapter #5. "t this stage it is important to note the provisions of s., of the .uropean #ommunities Act 157,< o @1A All such rights, powers, o!ligations and restrictions from time to time created by or arising by or under the reaties...are without further enactment to !e given legal effect or used in the *nited +ingdom shall be recognised and available in law... o +%, any enactment passed or to be passed, other than one contained in this !art of this "ct, shall !e construed and have effect su!ject to the foregoing provisions of this section.

<road interpret1 restrict the !arliament 0ord (ope in =ackson v A(: +5@@:, has argued that the net effect of these two subsections: o HcIoncedes the last word in this matter to the courts. o he doctrine of the supremacy of #ommunity law restricts the a!solute authority of Parliament to legislate as it wants in this area.

.arrow interpret1 only a rule to interpret the future statute but not restrict the parliament We should note, however, that 2ir =ohn $aws has interpreted s.,@>A more narrowly as simply providing a rule of construction for later statutes. 2ection 19 of the 'uropean Union "ct 5@## attempts to clarify the status of the 'uropean 4ommunities "ct #$=5: o /irectly applica!le or directly effective 'U law +that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 5+#, of the 'uropean 4ommunities "ct #$=5, falls to !e recognised and availa!le in law in the *nited +ingdom only !y virtue of that Act or where it is re4uired to !e recognised and availa!le in law !y virtue of any other Act.

3.9

he "uman 0ights Act 1559

he ()" was passed under the normal procedures of !arliament for !ublic General "cts. he broad effect of the "ct was to ena!le *+ courts to enforce rights created under the .uropean #onvention on "uman 0ights @.#"0A to which the United Kingdom was a party in #$:#. Until the ()" came into force, the rights of UK citiJens under the 4onvention could only be enforced by going to the 'uropean 4ourt of (uman )ights +'4t(),.

 We will review the ()" in more detail in 4hapters #*15@, but it is important, in the conte3t of parliamentary supremacy, to be aware of the following key features. o " new interpretive duty is applied to all primary and secondary legislation. o 2o far as it is possi!le to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compati!le with #onvention rights< s.3@1A. o 1here it is not possi!le to read and give effect to su!ordinate legislation in a way that is compatible with 4onvention rights, such legislation may !e 4uashed except where the parent Act prevents the removal of the incompati!ility< s.3@,A.

o 1here it is not possi!le to read and give effect to primary legislation +this includes "cts but is not limited to them, in a way that is compatible with 4onvention rights, the legislation remains in force but the (igh 4ourt or appeal courts may make a -declaration of incompati!ility-. he government can then use 'fast1 track' measures in !arliament to remove the incompatibility: s.#@. o All pu!lic authorities, including courts and tribunals, must, when e3ercising public functions, comply with #onvention rights unless authorised otherwise !y primary legislation< s.8@1A. o All courts and tri!unals must comply with case law from the .#t"0. o &inisters promoting Pu!lic )ills must issue a statement to !arliament stating that the )ill is compati!le with the #onvention or that it is not and

the government still wishes to proceed. !arliament remain in authority It is noticeable that the "0A does not distinguish !etween existing and former Acts. he declaration of incompati!ility is particularly significant in respect of parliamentary supremacy. Although the form of parliamentary supremacy is preserved, since the primary legislation remains valid, the ruling of the court has the practical effect that others affected by it, if it remains unchanged, will take their claims to the .#t"0 in 2tras!ourg. 'ffectively, the courts may not have the power to strike down an Act of Parliament, but will deliver a fatal wound to it, even if Parliament and not the courts must switch off its life support.

3.5 2ummary he !asic principle underlying the traditional view of parliamentary supremacy as set out by -icey that !arliament has -the right to make and unmake any law whatsoever/ and, further, that no person or !ody is recognised by the law of 'ngland as having the right to override or set aside the legislation of !arliament.' he courts have !een unwilling to challenge the validity of an "ct of !arliament by reference to arguments over procedural irregularities. his is known as the -enrolled )ill rule- and is illustrated by 'dinburgh and -alkeith )ly 4o v Wauchope +#*%5, and <ritish )ailways <oard v !ickin +#$=%,. he doctrine of implied repeal deals with the difficulties caused when a later "ct conflicts with an earlier but does not e3pressly repeal it.

 Under the traditional approach, e3emplified in 'llen &treet 'states 0td v Ainister of (ealth +#$?%,, the later Act is deemed to impliedly repeal the earlier Act in respect of the incompatibility. In hoburn v &underland 4ity 4ouncil +5@@5, 0aws 07 identified a new approach which was to !e applied to -constitutional statutes-. Under this approach constitutional statutes could only !e repealed expressly. Under the 'manner and form' argument, while Parliament has no limits on the su!ject matter on which it can legislate, the manner and form in which it legislates can !e limited. 2pecial procedures, such as a re2uirement to hold a referendum, can !e laid down and enforced !y the courts if they are not followed. &everal 4ommonwealth cases such as

Ainister of the Interior v (arris +#$:5, have been used to 8ustify this argument. he !arliament "cts #$## and #$%$ set out procedures under which the "ouse of $ords is una!le to prevent the passage of 'money <ills' and <ills which have been approved by the (ouse of 4ommons in two successive sessions. In 7ackson and others v "1G +5@@:,, the validity of the !arliament "ct #$%$ and subse2uent "cts passed under the procedure as primary legislation was affirmed. 2ome 2cots lawyers have argued, following Aac4ormick v 0ord "dvocate +#$:?, that the principle of parliamentary supremacy does not apply in 2cots constitutional law. .uropean *nion reaties and legislation under s.5 of the 'uropean 4ommunities "ct #$=5 are recognised under UK law and all "cts are to be construed accordingly.

 In 7ackson v "1G +5@@:,, 0ord (ope stated that the doctrine of the supremacy of #ommunity law restricts Parliament-s power to legislate. he "0A ena!led *+ courts to enforce the .#"0. "ll primary and secondary legislation must be interpreted in accordance with 4onvention rights. 2u!ordinate legislation may !e 4uashed, if it is incompati!le. Where an "ct is held to be incompatible, the court will issue a -declaration of incompati!ilitywhose practical, though not legal, effect will usually !e for the government to amend the legislation as soon as practical