Parliamentary Sovereignty

Blackstone: If the P will positively enact a thing to be done which is unreasonable, I know of no power
that can control it.
Dicey: Parliament has the right to make or unmake any law whatever. No person or body is
recognised as having a right to override or set aside the legislation of Parliament.
Common law concept natural law giving way to PS City of London v Wood An act of P can do
no wrong, though it may so several things that look pretty odd. Since then courts have confined PS.
Madzimbamuto v Lardner Burke if Parl chose to do something unconstitutional, the courts could
not hold the Act of Parliament invalid.
Compare US constitutional courts decide whether acts of legislative body are consistent with
constitution, and can set those acts aside if they are not.
Marbury v Madison reform of the UK courts?
Historial challenges to concept of PS
1) Challenges based on irregularities in passage of Bill through Parl
Edbinburgh and Dalkeith Railway v Wauchope led to Enrolled Bill Rule cant question how it got
there once it has become an Act.
Lee v Bude and Torrington Junction Railway Co allegation of fraudulent practices behind passing of
Act. Held: if so, for legislature to correct by repealing it. As long as it exists, the courts must obey it.
Pickin v British Railways Board Parl has right to control own proceedings and regulate internal
affairs without interference from Courts.
2) Challenges on the grounds that an Act was contrary to a constitutional text
Treaty of Union (important constitutional text) said no tax levied in Scotland unless in UK first.
Murray v Rogers Abolition of Domestic Rates (Scotland) Act introduced the Community Charge with
no equivalent in England. Court had no power to challenge validity of 1987 act on basis of Treaty.
3) Challenge on ground that Act inconsistent with Public International Law
Cheyne v Conn taxpayer claimed Finance Act 1957 conflicted with Geneva Convention as part of tax
paid would go towards manufacture of nuclear weapons. Statute is the law which prevails over every
other form of law.
4) Challenges on grounds of Human Rights eg R v Jordan unsuccessful before HRA 1998.
5) Challenges based on argument that Parliament can bind its successors
Doctrine of implied repeal: Ellen Street Estates no P can bind later P. Express repeal of an act always
available to later P. 1919 legislation overruled by Housing Act 1925.
Paradox if P cannot bind its successors, can it be said to be truly sovereign?
Continuing theory sovereign P perpetual institution. Unconfined legislative power is created afresh
each time it sits irrespective of what previous P sittings might have enacted. Supported by Dicey.
Self-embracing/self-limiting theory P can bind its successors by entrencing certain legislation,
making requirements for repealing or amending it more onerous.
Art 5 US Constitution permits amendments only if change attracts support of 2/3 majority in both
houses of Congress and majority of the individual states.
AG for New South Wales v Trethowan Legislative Council of NSW entrenched by insertion of new
s7A in Australian Constitution Act 1902 providing that no Bill for abolishing it could be presented for
Royal Assent unless referendum had first been carried out & had received majority support. Also, any
attempt to amend new s7A in Constitution Act also required referendum. Later attempt to pass two
Bills to repeal s7A and abolish Council were ultra vires as procedure had not been followed.
Harris v Minister of Interior s152 South Africa Act 1909 regarding voting rights also successfully
entrenched by requiring 2/3 majority of both Houses of South African P sitting together.
The above EGs all relate to countries with a written constitution harder to change things??
Theory v Practice
i) Grants of independence
Statute of Westminster 1931 s4 put in statute the convention that British P will not legislate for the
Dominions except at their request. Unlikely that future P could repeal this.

As with ECA 1972 Blackburn v AG Denning: Freedom once given cannot be taken away. Legal
theory must give way to practical politics.
Madzimabuto Cs detention was illegal under Southern Rhodesia Act but UK could not enforce.
ii) Membership of the European Community
ECA 1972. Export Tax on Art Treasures (No 2) ECJ definitive limitation on their sovereign
powers.
From UK courts perspective Garland v British Rail Engineering: Lord Diplock: however wide a
departure from the prima facie meaning of the language of the provision might be needed in order to
achieve consistency.
Hoffman J in Stoke-on-Trent v B & Q plc The Treaty of Rome is the supreme law of this country,
taking precedence over Acts of Parliament.
It flows into the estuaries and up the rivers. It cannot be held backIt is equal in force to any statute
Denning in Bulmer v Bollinger.
Factortame legislation UK courts should not apply national legislation (Merchant Shipping Act 1988)
if to do so would conflict with Community law.
Repealing the 1972 Act is essentially a political and economic issue. Proposed Constitution allows
withdrawal. Art 1(5)A of draft constitution + consider any impact. Article I-59 Voluntary Withdrawal
from the Union legally possible.
iii) Human Rights Act 1998
Expressly preserves PS: s3(2)(b) P legislation cannot be struck down.
S6(3) definition of public authorities subject to Act excludes
P; s4 dec. of incomp: order amending offending legislation under s10 is at ministers discretion;
s19 Ministerial statement as to whether Bill compatible or not.
R v A stretched interpretation inconsistent with PS, but boundaries pulled back in: Re S, Mendoza
courts cannot strike down stat instruments if wording prevents that being done.
iv) Acts of Union and Devolution
1800 Act of Union united Ireland and UK forever.
Act of Union with Scotland in 1706 forever
Scotland legislative devolution under Scotland Act 1998 directly elected Scottish P had power to
pass acts to alter Scottish law, although limited: may not modify certain enactments, may not affect
those matters specified as reserved. Westminster P remains able to legislate for Scotland against its
wishes, but real power lies with First Secretary of Scotland. Legally Scottish P could be abolished by
Act of UK P. Reality: Scotland has considerable legislative and political autonomy.
Wales Gov said nothing in the Bill which is capable of calling to question to sovereignty of P.
Realistic? Government of Wales Act 1998. Specific powers granted to National Assembly: powers to
amend or repeal primary legislation for the purpose of dealing with non-departmental public bodies in
Wales. However, Assemblys powers remain limited.
Northern Ireland Good Friday Agreement of 1998 provided for i) devolved assembly with
legislative powers, ii) new Northern Ireland Human Rights Commission; iii) an Equality Council.
v) The power of politics
Hostile response to the Community Charge legislation good EG of power of public opinion.