Has Parliamentary Supremacy died or simply evolved with the times?

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UK Constitutional Law - Christopher James Mills 2003

“Proponents of the traditional theory [of Sovereignty]...begin with the proposition that any statute passed by Parliament will be recognised by the courts, and implicitly assume...that the manner of passage is by simple majority.  This is said to be the ultimate legal principle, the rule of recognition, of our legal system.”

According to Craig’s quote above, the very cornerstone of the Constitution is that Parliament is the sovereign or supreme legislative authority in our state. The proposition that ‘any statute passed by Parliament will be recognised by the courts’ thus consists of three main elements, i.e. the enrolled bill rule, the implied repeal rule and that there is no limit to an Act’s territorial extent.

The enrolled bill rule means that no one may declare the validity of an Act of Parliament, even though the early common law courts attempted to declare an act invalid in Dr Bonham’s case. This right was never recognised and was in fact reversed by the Bill of Rights, which established the primacy of statute over common law.  The attitude of the courts has been consistent therefrom, best summarised in Edinburgh and Dalkeith. Here it is established that all a court can do is look to the Parliamentary roll, if an Act has passed both Houses and received Royal Assent then no court will enquire as to the manner in which it was introduced.

Heuston’s manner and form thesis does not entirely support this proposition as he suggests a distinction needs to be made between the composition and procedure of the sovereign and its area of power. It is with regards to this distinction he submits that the courts have jurisdiction to question the validity of an Act of Parliament on the grounds of composition and procedure. Logically, there is some force is his argument as the courts must have some rule of recognition for deciding if something is or is not an Act of Parliament. The courts have thus far provided conflicting approaches, in A-G NSW the court made a declaration that Bills passed by the legislature were invalid, as these had not followed the manner and form required by the legislation in force at the time.

Yet, in Manuel, an attempt was made to declare the Canada Act invalid, arguing that although it claimed to have consulted the people of Canada it had not. It was held that once the Act had been passed, it was too late. This case gives support to the notion that as long as Royal Assent appears to have been given, the courts will not investigate matters further.

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The implied repeal rule basically means that Parliament cannot bind itself or its successors, i.e. every Parliament has the same sovereign power in that it can make or unmake any Act of Parliament, where two Acts conflict the latter should take priority.

This obviously contradicts Craig’s opening statement and given authority in Vauxhall Estates v Liverpool Corporation where it was held that a later statute impliedly overruled an earlier statute, even though the earlier statute had stated that any later inconsistent legislation was to have no effect. Therefore, it is incorrect to say that any statute passed by Parliament ...

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