Parliamentary sovereignty Parliamentary sovereignty is a concept absolutely fundamental to the understanding of the UK constitution.

It can reasonably be called the fundamental rule of the constitution. A student once even suggested to me that it can meaningfully be seen as the only rule of the constitution. While that no doubt goes too far, it is a useful thought since it focuses our attention on just how fundamental the doctrine of Parliamentary sovereignty is in British constitutional law. As Professor A.V. Dicey wrote in his classic 19th-century work, An Introduction to the Study of the Law of the Constitution: The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions. Sovereignty or supremacy? Some lawyers and writers speak of "Parliamentary sovereignty" while others talk about "Parliamentary supremacy". Both these terms refer to the same constitutional concept; they are interchangeable, so it does not matter which you use. My preference is to speak of "sovereignty", firstly because that is the term used by Dicey and secondly so as to avoid any possible confusion with the European concept of the supremacy of EU law. What Parliament is, and how it makes law As background to your constitutional law studies, you need to be aware that Parliament consists of the Commons, the Lords and the Queen - whose Royal assent turns a Bill into law; and to be aware in outline of the stages a Bill passes through before it is enacted. You are advised to ook at Parliament's website for more information about Parliamentary procedures. What is the doctrine of Parliamentary sovereignty? It was Dicey who gave the classic exposition of the doctrine of parliamentary sovereignty: The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament... has, under the English constitution, the right to make or unmake any law or whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. There are therefore two components to the classic Diceian definition of Parliamentary sovereignty: Parliament can make make any law; No one can override or set aside parliaments law.

This, at least, is the theory. Studying Parliamentary sovereignty involves, first, exploring some detailed aspects of the doctrine and what Parliament can and cannot do; and secondly, forming a view about whether Dicey's formulation remains true now, in the face of the challenges to traditional Parliamentary sovereignty that come from EU law and human rights law in particular. This chapter will explore the first, while the next chapter will consider the second. Nature and source of the doctrine It is worth noting immediately that no legislation establishes the doctrine of Parliamentary sovereignty: it is not a rule that comes from statute. Nor is there any case that can be cited as the origin of the doctrine. Parliamentary sovereignty is simply a common-law rule of the constitution which is so fundamental that it can in effect be taken for granted by judges and by Parliament itself. Ultimately, the continuance of the doctrine depends on the courts' and judges' respect for and loyalty to it. Parliaments can make or unmake any law The first limb of Dicey's definition, the idea that Parliament's legislative competence is unlimited, is a radical one. A number of cases illustrate specific dimensions of this unlimited competence. In Mortensen v Peters (1906) 14 SLT 227 the captain of a Norwegian fishing boat was convicted of an offence under the Herring Fisheries (Scotland) Act 1889 even though the Act regulated fishing outside the limit of Scottish waters recognised in international law. The case shows that the courts will recognise and enforce Acts of Parliament that apply outside UK

territory. This principle, that Parliament is sovereignty is unlimited geographically, is sometimes illustrated by saying that Parliament, if it wishes, can legislate to outlaw smoking on the streets of Paris. It's important to realise this doesn't mean Parliament can amend French law (although even that might be possible as a matter of pure theory) but that smoking in Paris would be an offence triable in the UK. The example is useful as it reminds us that the legal theory of Parliamentary sovereignty does not always reflect political reality. The Sexual Offences Act 2003 is however a realworld illustration of legislation achieving exactly that kind of result: at least in part to combat "child sex tourism", section 72 makes certain sexual offences committed with children prosecutable in England even if committed abroad. The War Damage Act 1965 illustrates Parliament's ability to legislate retrospectively. In a case called Burmah Oil v Lord Advocate [1965] AC 75, the House of Lords had granted compensation against the Crown for damage caused by British forces during wartime. Parliament passed that Act, legislating retrospectively to nullify the effect of the House of Lords' decision. the case shows that parliaments sovereignty is unlimited in time. (Although there is a presumption of statutory interpretation that Parliament does not intend to legislate retrospectively, nonetheless, clear wording certainly can produce a retrospective legislative effect, as this case shows.) In the case of Cheney v Conn [1968] 1 All ER 779 a taxpayer tried to challenge tax legislation on the basis that, because some of the money collected by government would go towards nuclear weapons, it breached international law. The court made it clear that an Act of Parliament is the highest form of law and prevails over international law. These are examples of Parliament's ability to make any law. It can also unmake any law in the sense that it can repeal any previous Act of Parliament legislate to reverse or abolish any rule of common law, or any convention.

No one can override or set aside Parliament's laws - the Crown This aspect of the doctrine - Dicey's second limb - does have statutory underpinning, at least as far as the Crown is concerned, in the Bill of Rights 1689. Article 1 states That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall. and article 2, That the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall. But note that the Bill of Rights expresses itself as a declaration of existing rights and liberties, rather than as the original source of those rules; and that the text declares the pretended powers exercised by the previous King as illegal - it does not accept that he had those powers in law previously. No one can set aside Parliament's laws - the courts and the "enrolled bill rule" The courts will not set aside an Act of Parliament. In Edinburgh and Dalkeith Railway v Wauchope [1842] UKHL J12 ,(1842) 8 ER 279, the owner of land over which a railway passed was granted in the private Act setting up the railway rights to payment dependent on the amount of goods and passengers carried over his land; but a later Act amended those rights. He tried to enforce payment on the original terms, arguing that the later amending Act could not be made applicable to him, since it affected his vested right, and had been introduced without due notice of its introduction being served on him. The House of Lords rejected that argument. Lord Campbell said: I cannot but express my surprise that such a notion should ever have prevailed. There is no foundation whatever for it. 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 of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through any Court in Scotland, but that due effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions. This makes it clear that the courts will not "look behind" Acts of Parliament - they will simply apply any legislation which has passed both Houses and received Royal assent, regardless of whether proper Parliamentary procedure was followed, or for instance whether all MPs voted in the right lobby or whether tellers counted votes correctly. This is known as the "enrolled bill rule". The approach was confirmed in British Railways Board v Pickin [1974] UKHL 1, [1974] AC 765. Again the case involved the owner of land affected by railway development, whose rights granted in one statute had been extinguished by a later private Act. He argued that in obtaining the enactment of the later Act the Board fraudulently concealed certain matters from Parliament and its officers and thereby misled Parliament. Again, the Lords rejected this. Lord Simon of Glaisdale said The system by which, in this country, those liable to be affected by general political decisions have some control over the decision-making is parliamentary democracy. Its peculiar feature in constitutional law is the sovereignty of Parliament. This involves that, contrary to what was sometimes asserted before the 18th century, and in contradistinction to some other democratic systems, the courts in this country have no power to declare enacted law to be invalid... If the Respondent thinks that Parliament has been misled into an enactment inimical to his interests, his remedy lies with Parliament itself, and nowhere else. Lord Simon's reference to "other democratic systems" reminds us that under the Constitution of the United States, for instance, the written Constitution itself is the ultimate legal authority - Congress is not sovereign, and its legislation can be struck down by the Supreme Court. Parliament cannot bind its successors Although not mentioned in Dicey's formulation, this principle is an important aspect of Parliamentary sovereignty. If Parliament is to be sovereign today, then its freedom to legislate must not be limited or encumbered by anything previous Parliemtns have done. It follows that today's Parliament cannot bind future Parliaments. Obviously that means Parliament can repeal previous statutes. It almost always does so intentionally - most Acts of Parliament list in a Schedule the past enactments which they amend and repeal. This is called express repeal. Implied repeal But sometimes, although there has been no express repeal, the provisions of an Act conflict with the provisions of an earlier one - raising the question of which one takes precedence. In accordance with the principle that Parliament cannot bind its successors, the courts have decided that the provisions of the later Act prevail or "impliedly repeal" the earlier Act to the extent of the conflict. This doctrine of implied repeal, although seldom important in legal practice, is vital to understanding Parliamentary sovereignty today. Its full significance will become clear when we deal with the impact of EU law on Parliamentary sovereignty, in the next chapter. For now, the important thing is to understand how implied repeal works. An especially interesting case is Ellen Street Estates v Minister of Health [1934] 1 KB 590, which was about the amount of compensation to be paid on the compulsory purchase of land. The Acquisition of Land (Assessment of Compensation) Act 1919 laid down principles for calculating compensation, and interestingly provided that the provisions of any other Act dealing with the subject shall... have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect.

It was argued that this applied to future as well as past legislation; and therefore it overrode the provisions of the Housing Act 1925, which without repealing the 1919 Act laid down a less generous method for calculating compensation. The court rejected that argument - basing its judgment firmly on the doctrine of implied repeal. Maugham LJ said 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. A similar approach was taken in Vauxhall Estates v Liverpool Corporation [1932] 1 KB 133. We will look again at these cases in the next chapter, when we consider the impact on sovereignty of EU law. Parliament can reform itself, and change its own procedures However Parliament can change itself, in effect determining the way future Parliaments can go about making legislation. For instance, the House of Lords Act 1999 abolished the right of most hereditary peers to sit in the Lords. Particularly important examples of this are the Parliament Acts 1911 and 1949. The 1911 Act limited the power of the Lords to block legislation; it could delay a Bill for two years, but if passed by the Commons in a third successive session, it could become law. The 1949 Act went further, limiting the Lords' power in effect to a single year. What is particularly interesting, and to some controversial, is that the 1949 Act was resisted by the Lords, and forced through by the Commons using the 1911 Act procedure. The question whether this was legitimate was raised in Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262, which involved a challenge to the hunting ban in the Hunting Act 2004, which was forced through by the Commons under the Parliament Acts, in the teeth of opposition from the Lords. It was argued that the 1949 Act was not a proper Act of Parliament - and that therefore the Hunting Act was invalid. The Lords rejected this unanimously, refusing to look behind the 1949 Act and the Hunting Act 2004. Lord Hope said if the 1949 Act was not validly enacted nothing that has happened to it subsequently can cure the invalidity. That would, of course, be true if it was delegated or subordinate legislation, in the true sense of these words, that the court was faced with. But the 1949 Act proclaims itself to be, and appears on the Parliamentary Roll as, an Act of Parliament. But it is important to note that the Lords suggested the Parliament Acts could not be used for any purpose: in particular, a number of their Lordships suggested, obiter, that the 1949 Act cannot be used the remove the specific safeguard in the 1911 Act preventing its use to extend the life of Parliament. More generally, however, Lord Steyn made interesting comments on Parliamentary sovereignty, raising the prospect that judges might withdraw their loyalty to in certain circumstances: The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the generalprinciple of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. Lord Steyn's words remind us of the nature and source of the doctrine of Parliamentary sovereignty; and reflect a common contemporary view that Dicey's classic version of the doctrine no longer entirely reflects reality. That is a an important view, of which you

need to be aware. In the next chapter we will look at some of the factors that have tested the classic account, and led many modern lawyers to Lord Steyn's view. Advantages and disadvantages of Parliamentary sovereignty Lord Steyn's words also make us think about how Parliamentary sovereignty can be justified in political terms, and how it can be criticised. Earlier, we looked at the Bill of Rights 1689, in which absolute respect for Parliament's laws was implicitly seen as a guarantee against the arbitrary power of the executive. In defence of Parliamentary sovereignty, it can be argued that it still ensures that major issues of public policy are ultimately decided by a democratically elected institution that is directly accountable to the public. In another system, such as that of the United States, important decisions on matters such as abortion are often made, ultimately, by unelected judges in the Supreme Court, who have the power to strike down legislation, but who are neither accountable nor sackable. Parliamentary sovereignty can therefore be seen as underpinning democracy. Against Parliamentary sovereignty, it can be argued that under our system, in which effectively the Prime Minister controls a majority in the Commons - and which can force its view on the Lords and even reform the Lords as it sees fit - there is no effective check or balance on the power of the executive to impose on us whatever laws it wishes. And since Parliament can unmake any laws, rights and protections cannot be entrenched, and may be easily swept away by Parliament. In the next chapter we will consider the main legal developments which, it can be argued, challenge or modify the classic version of Parliamentary sovereignty