It seems, courts may not even question an act if it is inconsistent with international law. This was demonstrated in the case of Cheney V Coun (1968) 1 All ER 779: a tax payer challenged the validity of The Finance Act 1964 arguing that it was in conflict with the international Geneva conventions on warfare incorporated into UK law as the Geneva Convections Act 1957. It was claimed that this 1964 act was contrary to international law, because part of the tax collected would go towards the manufacture of nuclear weapons. Ungoed- Thomas J said that ‘what the statue itself enacts cannot be unlawful, because it is the highest form of law which is known to this country.
A similar case was that of RV Jordon (1967) crim.L.R 483. The leader of a right-wing party was imprisoned for 18 months for offences against the Race Relations act 1965. He sought
legal aid to bring an action for habeas- corpus on the ground that his rights of true speech had been unlawfully curtailed by the act, which was consequently invalid. It was held that the courts had no power to question the validity of an act of Parliament, which was supreme.
In Mortnesen v Peters (1906) 8 F. (d) 93. Per Lord Dunedin said ‘For us an act of Parliament duly passed by the Lords and Commons and assent to by the King is supreme and we are bound to give effect to its terms.’
There are older, albeit isolated dicta suggestions that the courts can declare legislation invalid as a contrary to right reasons or natural justice or good sense.
In the main these authorities are old, reflect a different political and ideological perspective and context and are regarded now as wholly unpersuasive, the line of authority such as it was, coming to a close with the dicta of Willes J in Lee V Bude and Torrington By Co (1871) LR6 CP 577. Nonetheless, a consideration of such authorities throws light on the historical aspect of parliamentary supremacy, suggesting that it is of relatively recent origin in the life of the English legal system and legitimating the view that parliamentary supremacy has a beginning and perhaps will have an end.
Bonham’s case 1610: One often debated issue is whether the common law could not strike out an act of parliament as repugnant to natural justice.
In Dr Bonham’s case (1610) 8 CO. Ref.114 the President and Censors of the college of physicians ordered the plaintiff to be committed to prison because he had continued to practice medicine when ordered not to so and refused to pay fines levied for having done so. The plaintiff claimed to practice under a degree awarded by Cambridge University. He brought an action against the President and Censors of the college for false imprisonment. It was held that the Censors had no power to commit the plaintiff to prison, since their power was limited to the control of bad practice and not of good practice of medicine.
The order for the plaintiff’s imprisonment had been wrongly made by the President and Censors of the college, though only the censors had jurisdiction even in the cases of bad practice. The college should have given written rather then oral reason for their decision. Lord Coke C.J said: ‘And it appears in our books, that in many cases, the Common law will control acts of Parliament and sometime adjudge them to be utterly void: for when an act of Parliament is against common right and reason or repugnant are impossible to be performed, the common law will control it and adjudge such an act to be void.’
In the case of Thomas V Sorrell (1674) Vaughan 330, a law which a man can not obey, nor act accordingly to it, is void and no law, and it is impossible to obey contradictions, or act according to them. In R V Lowe (1853) 5st Tr 825: Per Keble J said ‘whatsoever is not consonant to scriptures in the law of England is not the law of England.’
Nowadays, these and other proposals criteria of validity serve merely as Maxis of statutory interpretation and construction; rather than as constitutional principles guiding judicial review of the validity are constitutionality of primary legislation. Interpretation and construction are not trivial. Courts could pay lip service to the doctrine of parliamentary supremacy, while at the same time interpreting and construing legislation on the assumptions that parliament would not intend absurdity, unreasonableness, self-contradiction, and manifestly it would not set itself against the law of God.
Arguments continued until 1871 as to whether parliament could validly enact legislation contrary to common law principle that no man be judged in his own cause. These arguments appear to be laid to rest are consigned to the dustbin of history by Willes J in Lee V Bude and Torrington Railway Company, holding such principles merely stand as warning rather then authorities to be followed.
There remains, however, one disputed area. Can parliament bind its successors? The orthodox view is that it cannot. The parliament which is supreme is the current parliament, so it has the power to repeal the legislation of any previous parliament. Normally such repeal is expressed in later Act. But if, through inadvertence or caution, Parliament simply enacts something inconsistent with and earlier act, the courts will treat this as an implied repeal of the earlier Act by the later. In Ellen St Estates Ltd V Mister of Health (1934) 1 K.B 590, the court of appeal rejected an attempt to argue that the housing act 1925 should be subject to inconsistent provisions in acquisitions of Land Act 1919. The 1925 Act impliedly repealed those provisions.
What is the origin of this rule that parliament cannot bind its successor? if it is regarded as a rule of common law, then logic would suggest that like all other rules of common law, it would be subject to alternations by Act of Parliament. But, as Wade argued in his 1955 article, ‘The basis of legal Sovereignty’, if the rule of recognition, on which the whole basis of constitutional legality rests, it is not like other common law rules, and nothing short of a legal revolution could change it. Any attempt by an Act of Parliament to change the basis on which Acts of Parliament are treated as law is doomed to failure. But, in various contexts, the issue of Parliament’s ability to bind its successor has arisen and given rise to legal and academic debate.
Since UK joined the European community in 1972 parliamentary supremacy has been conceded in some respect by Parliament. The European courts have long described to the view in the international Handelgesellschaft case (1972) CMLR 225 that communities law should prevail over members states municipal law. This view was substantiated in R-V-Secretary of State for transport ex Parte Factortame ltd (NO.2)(1991) 1AC 603.
This case involved a conflict between EC law and inconsistent later UK statue. The appellants were companies which owned fishing vessels. The majority of these had been registered as Spanish, before being registered as British vessels. The British government was concerned that the operation of community quotas would adversely affect the British fishing industry. Parliament therefore passed the merchant shipping act 1988 and merchant shipping regulation 1988 which prevented Spanish ship from being registered as British. The appellants claimed that this legislation was contrary to provisions of community law which prohibited discrimination on the grounds on nationality. The divisional court referred to the European court of justice the question whether E.C. law affected the registration conditions which a Member State imposed on merchant shipping. The court granted the applicants an interim injunction displaying the operation of the register and restraining the Secretary of State from enforcing the act pending the European Court of Justice decision. The injunction was discharged on the appeal by the court of appeal and the applicants appealed to the House of Lords, which held that under English law the courts had no jurisdiction to grant interim relief, in terms that would involve either overturning a statue or granting an injunction against the crown.
The human rights act 1998 incorporates the ECHR into UK law. In the absence of legislation which gave effect to the convention, British courts in the past rejected suggestion that ESHR was legally binding. For examples, in Chief immigration officer V Heathrow Airport, Ex parate Salamat Bibi (1976) 1 WLR 976, Lord Denning stressed that in the event of a conflict between an act of Parliament and the ECHR, the British statue should prevail.
There are some practical (non- legal) constraint on Parliamentary supremacy, such as CBI, royal commission and law society which government will usually consult before enacting any legislation. The present UK Parliament is the result of two treaties: the act of the union with Scotland 1707 and the act of union with Ireland 1800. Thus it is debatable whether in the modern UK parliament was born unfree. In 1800 the act of union united the island of Ireland with Great Britain forever. The Church of both countries were also to be forever united. In practice this has not been the case. The Irish free estate (constitution) act 1922 facilitated the creation of the Irish Republic while the church of Ireland was disestablished by the Irish Church act 1869. Although there are no cases directly on the 1800 act of union itself, when a legal challenge was brought against the 1869 statue, the court held that it had no power to over ride a statue: Ex Parte Sanon Selwyn 36 JP 54.
The earlier act of union with Scotland (1707) provided for the union of England and Scotland (art.1), with the formal English and Scottish Parliaments merging to form a British Parliament (art.3). The act of union with Scotland (1707) also provide guarantees relating to the separate Scottish courts and Church of Scotland. Thus the orthodox view is that the English and Scottish parliaments voluntarily extinguished themself.
The fact that parliamentary supremacy was a distinctly English characteristic, which had no counter part in Scotland law, has been noted by Scottish judges. In Maccozmick V Lord Advocate (1953) S.C 369 a declaration was requested that the government was not entitled to publish a proclamation describing the Queen as Elizabeth 11 of Great Britain, because, as far as Scotland was concerned, there had been no Elizabeth 1. Lord Cooper remarked obiter: the principle of the unlimited supremacy of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. Implicit in this was a suggestion that parliament maybe bound by the act of union. On the other hand, Lord Cooper appeared to quash such speculation when he added, that there is neither precedent nor authority of any kind for the view that the domestic court of either Scotland or England have power to determine whether a government act if this type conforms to the provision of a treaty of union. Thus in Lord Cooper’s opinion, violation of the fundamental terms of the union would be unlawful.
In the Pringle case (1991) SLT 330, it was claimed in the Scottish Court of Session that the introduction of the pool tax into Scotland a year earlier then England and Wales was Contrary to the art.4 of the treaty of union. Article four stipulates that there should be no difference in the rights and privileges of British Citizen. This submission failed. Lord Hope held that the difference in taxation would not be sufficient to persuade me, without a much more detailed enquiry into the overall affect of these differences, that there was a failure to do what this part of art.4 intended should be done. Nonetheless, the decision in this case illustrates the general reluctance of Scottish judges to review acts of Parliament.
Whilst Parliament may be supreme in theory, the only major constraint is that of political pressure. The House of Commons has to stand for re-election every five years. In practice government will usually take cognisance of public opinion. Few governments will be foolish enough to initiate legislation contrary to public opinion. The community charge legislation is an excellent example of the hostile public opinion. The abolition of domestic rates (Scotland) act 1987 and the local government Finance act (1998), the government replaced the community charge with the council tax, in an effort to regain public support. A similar example is a ban on fox haunting.
In March 1988, after the Michael Foster MP bill passes its second reading in the Commons, an estimated 250,000 people took part in the country-side march to oppose a hunt banned. Mass demonstration rattled the government later bill was withdrawn by Michael Foster, because of political pressure. A ban on fox hunting was in labour election manifesto and so far government is in its breach of election manifesto. It is difficult to say, what impact that will have in the next general election. Finally, sometime government justify its action, stance and legislation on moral ground such is the case in war on Iraq. On 14th February 2003, Prime Minister Tony Blair addressing the labour conference in Glasgow said ‘that it would be immoral not to remove Saddam Hussein from power, as 1 million people had died so far in Iraq, due to his regime. On the same day 1 million march through Hyde Park in London to protest against the war, whether that will change his stance on Iraq remains to be seen.
(Guardian Newspaper 15th Feb03)
The limits of parliamentary clearly can not be stated with any precision. The scope of the legal doctrine and its implications for constitutional change cannot be settled except by analysis of the political morality which gives it its authority. The boundaries of supremacy must be determined in the light of the prevailing moral and political climate when difficult questions of constitutional authority arise. Allan, T.R.S.
Parliamentary Supremacy is an important principle of the UK Constitution. since 1700, the court have recognised the doctrine of the legislative omnipotence of parliament. Yet there always has been a difference between theory and practice. Professor Lasok has pointed out that even in Dicey’s days absolute supremacy was not a realistic proposition at least as far as international obligations were concerned since no country exists in isolation:
It can be concluded therefore, that whilst the notion of Parliamentary sovereignty has clearly been dampened as a result of UK’s membership to the EU. Parliament’s supremacy has not been totally abolished. It is clearly seen that directly and forcible community law will prevail over inconsistent national law. To this extent, parliament loses its supremacy.
However, should the national law expressly and deliberately conflict with community’s act 1972, to the extent; the traditional view of the parliamentary supremacy would prevail.
