Parliamentary supremacy has had its day.
The origins of Parliamentary Supremacy are found in the 17th century, in particular the enactment of The Bill of Rights, 1689. This is, according to Dicey "the very keystone of the law of the constitution."1 Prior to this it was within a courts jurisdiction to challenge the validity of an Act of parliament, such as in Dr Bonham's case, 1610.2 Therefore it would appear that any subsequent upset of this well-established doctrine would prove to be extremely damaging. The occurrence of Parliamentary supremacy is largely due to the lack of a written constitution in the United Kingdom, as written constitutions provide certain entrenchments (such as in the case of Germany) regarding limitations of scope for creating legislation. European community law, by virtue of the European Communities Act 1972, now has direct applicability in the United Kingdom. Subsequently, where there is any conflict between an Act of parliament and community law, the later takes precedence. In other words, Parliament is no longer the sovereign law making authority; it must instead adhere to Community law, in theory forfeiting its sovereignty. However due to the courts only enforcing Acts of parliament, not treaties such as the Treaty of Rome, it can be argued that by parliament retaining the power to repeal any Act that has not been entrenched, it could repeal the 1972 Act, effectively withdrawing itself from the European Union. This would of course be politically and economically incomprehensible, but in theory Parliament still retains its ultimate sovereignty as the highest form of law. Despite this, adherence to community law does limit the scope by which British Parliament can legislate, as can be found in Factorame Ltd and others v Secretary of the State for Transport3. Due to the Merchant Shipping Act 1988, ships, owned by companies with directors from other European community member countries were no longer eligible for registration as British Vessels. Whilst seeking a provisional ruling from the European Courts of Justice, the divisional court granted interim relief from the 1998 Act. Thus by doing so the courts were effectively suspending an Act of parliament, contrary to Dicey's statement that ".... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament".4 Therefore, by granting interim relief it could be argued that the courts were simply acknowledging European supremacy.
The applicability of the European Convention on Human Rights in the Human Rights Act 1998 has in someway redressed the lapse of Parliamentary Supremacy as has been discussed above. Instead of the courts being able to override an Act of Parliament with community law the conflicting statute can only be declared as incompatible. From there on the matter is to be taken up by the executive, who must decide how to remedy the incompatibility.
The Scotland Act 1998 has also brought about issues of the applicability of Parliamentary Supremacy in the modern day. One of the devolved powers given to the Scottish Parliament is that to repeal any Act, be it enacted by United Kingdom Parliament or by the Scottish Parliament, so long as it is only applicable to Scotland. Supposing the United Kingdom enacted an Act for Scotland, Scottish Parliament could repeal it & enact its own Act in the place of the former Act. In theory this action of repealing could continue without end. Here there are two supreme parliaments, ...
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The Scotland Act 1998 has also brought about issues of the applicability of Parliamentary Supremacy in the modern day. One of the devolved powers given to the Scottish Parliament is that to repeal any Act, be it enacted by United Kingdom Parliament or by the Scottish Parliament, so long as it is only applicable to Scotland. Supposing the United Kingdom enacted an Act for Scotland, Scottish Parliament could repeal it & enact its own Act in the place of the former Act. In theory this action of repealing could continue without end. Here there are two supreme parliaments, which cannot support the doctrine of Parliamentary Supremacy.
Yet another issue is raised by enactment of the Scotland Act 1998. When a dispute occurs as to whether the Scottish Parliament has enacted an Act that is deemed to be ultra-vires, the case is passed to the Judicial Committee of the Privy Council (JCPC). Should the JCPC find the Act to be beyond the legislative scope of Parliament, it has the power to strike down the statute. This is does not sit well with Atiyah's statement that "".... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament".5
Scottish Parliament enjoys devolved powers to legislate for Scotland in all but reserved matters, which from this it could be deemed that the United Kingdom Parliament is no longer supreme, in so far as the Scotland Act gives substantial devolved powers to Scottish Parliament. Despite this the Act states that it, " ...does not affect the power of the parliament of the United Kingdom to make laws for Scotland."6 This declaration supposedly guards the United Kingdom's supremacy, but the reality would prove to be somewhat different should Westminster attempt to legislate for Scotland, contrary to the wishes of the Scottish people. Mr Tam Dalyell MP remarked of this declaration " ....in the political reality of 1998 it is palpably misleading and as about as true as to say that the Queen can veto any legislation."7
It follows that the electorate is yet another control on Parliamentary Supremacy. In recent years with narrow majorities in the commons the popularity of government is crucial for the government of the day. Should the Act be grossly unpopular then it is likely to be repealed, such as in the case of poll tax introduced by the Local Government Finance Act 1988, (although there were other contributory factors to its withdrawal such as administrative problems and unfairness, unpopularity with the electorate was a major factor in its withdrawal). Dicey acknowledged that "sovereignty is limited on every side by the possibility of popular resistance"8, meaning that although Parliament in theory can legislate on any topic it chooses, the law cannot be enforced against the wishes of the electorate.
Where there is a conflict between two statutes, the latest prevails, however should this conflict with Community law then there will be no implied repeal, with the courts having to apply the community law. The doctrine of implied repeal continues to be a fundamental element of Parliamentary supremacy. It affirms Dicey's principle that past parliaments cannot bind future parliaments in any way. In Ellen Street Estates v Minister of Health9, a question of inconsistency arose with regards to the Housing Act 1925 and the Acquisition of Land (Assessment of Compensation) Act 1919. The Claimants argued that compensation should be awarded on the provisions of the earlier 1919 Act (which provided more generous compensation than the later 1925 Act). The courts held that the later Act overrode this provision in the earlier Act, and that the later Act should take precedence. This has continued to be the doctrine that is predominantly followed today, but questions do arise as to whether legislation can be effectively entrenched.
Parliament itself places restrictions on its legislative supremacy by requiring the amendment or repeal of an Act to follow certain procedures, such as in the Northern Ireland Constitution Act 1973 where it states, "It is hereby affirmed that in no event will Northern Ireland cease to be part of Her Majesty's dominions and of the United Kingdom without the consent of the majority of the people of Northern Ireland voting in a poll held for the purposes of this section."10 This statement could be construed as merely a constitutional or political guarantee, but could also be taken that Parliament intended to bind future governments to this provision by the passing of this Act. This is contrary to another of Dicey's principles that a future parliament cannot be bound by its predecessors.11 This concept of entrenchment has been raised in many cases, including Manuel v Attorney General.12 In this case an action was brought by Canadian Indian Chiefs that the Canada Act 1982 was invalid, since consent had not been sought from the Canadian Indians as was required under the Statute of Westminster 1931, to amend the Canadian constitution. In the first instance it was declared that as the Canada Act was an Act of parliament the court had no jurisdiction to question its validity. The case went to the Court of Appeal, where similarly it was decided that there was no course for action. However one of the Judges, Slade LJ, acknowledged that the Statute of Westminster did impose a procedural condition on the Canada Act. However as the Canada Act's preamble contained a declaration that the people of Canada had consented to its enactment, the courts dismissed the appeal. Although this recognition of entrenchment was only stated in Obiter form, it is still significant, with the effect that a court recognised that a previous Parliament had bound a successor, despite also upholding the doctrine by not striking down the statute.
The Parliament Acts of 1911 & 1949 show that due to Parliaments sovereignty it has unlimited power to create law. In the 1911 and 1949 Acts, parliament redefined itself by curtailing the legislative competence of the House of Lords. The Acts permitted bills to advance to the Royal Assent without having to be passed by the Lords. However, a bill to extend the term of Government would have to be approved by the Lords before proceeding to the Royal Assent. Surely if Parliament is construed to be just Commons and the Crown, as is suggested by the Parliament Acts, then by requiring the Lords to approve an extended term of Government, it is placing a limitation on its sovereignty. In addition should the Commons not follow the procedure for an extended term of office and enact the statute without the Lords consent then in theory there may be an argument for the courts not to recognise the Act. Similar cases have been brought outside the United Kingdom such as in Harris v Minister of the Interior13. Here the South African courts refused to recognise an Act that had not attained the two-thirds majority in Parliament as required for the revocation of parts of the constitution. Another point has been raised by Ian Loveland14, with regards to the 1911 & 1949 Acts. He argues as to whether the Act could present a valid legal argument to bypass Parliamentary Supremacy. When the Parliament Act is used to enact legislation, it could be thought of as being inferior to statutes that had been enacted through the traditional three-part body of Parliament (Commons, Lords and Monarch). As in the case of Harris v Minister of the Interior, there would be a case for such legislation to not be recognised by the courts, as it does not follow the established formula. However, Ian Loveland goes on to explain that such action would be difficult to justify due to the lack of a written constitution.
When drawing a conclusion to the question of whether Parliamentary Supremacy has had its day, it must be taken into account that many if not most of the points of view are solely theoretical, such as Parliament legislating on any issue it likes. In the present day this would be inconceivable, due to the governments reliance on the electorate to remain in power. There is very little case law from the United Kingdom to support many of the arguments set out above & where foreign cases are cited their applicability is limited by their reliance on a written constitution. Another point that must be noted is that the Doctrine of Parliamentary Supremacy was constructed more than 200 years ago, so following the changes in Legislature and politics in this country, its applicability to modern day Parliament will be limited, since there has been little or no attempt to update the Doctrine.
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Bibliography
Dicey, AV, Introduction to the study of the law of the constitution, 10th edn, 1959, London, Macmillan
C Turpin, British Government and the Constitution, 4th edt 1999, Butterworths, London
R.Lee, Constitutional and Administrative Law, 2nd Edt 1989, Blackstone Press, London
I Loveland, Constitutional Law: A critical Introduction, 1st edt, 1996, Butterworths, London
Dicey, AV, Introduction to the study of the law of the constitution, 10th edn, 1959, London, Macmillan, p.70
2 (1610) 8 Co Rep 107a
3 (1989) 2 All ER 692
4 Dicey, 1959, P.39
5 Dicey, 1959, P.39
6 Scotland Act 1998, section 28(7)
7 HC Deb vol 305, col 366, 28 January 1998, as quoted by C Turpin, British Government and the Constitution, 4th edt 1999, Butterworths, London, P.253
8 Dicey, 1959, p.79
9 (1934) 1 KB 590
0 Northern Ireland Constitution Act 1973, s.1 as quoted by R.Lee, Constitutional and Administrative Law, 2nd Edt 1989, Blackstone Press, London, P.58
1 Dicey, 1959, p.39
2 (1983) 3 All ER 786 & 823
3 (1952) 1 TLR 1245
4 I Loveland, Constitutional Law: A critical Introduction, 1st edt, 1996, Butterworths, London P.205
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"Parliamentary Supremacy has had its day" Discuss
