Parliamentary Supremacy

The second rule that, no parliament may be bound by a predecessor or bind a successor comes from the theory that each parliament must enjoy the same unlimited powers, and if bound by previous parliaments, it would not be sovereign and therefore a ‘contradiction in terms’. The Doctrine of Implied Repeal is the ‘mechanism’ by which parliament is able to prevent itself from being bound, or binding subsequent parliaments. It allows previous law to be repealed, and for new law to take precedent. The case of Vauxhall Estates Ltd v Liverpool Corporation (1932) illustrated the doctrine, as there was a conflict between the Acquisition of Land Act 1919, and the Housing Act 1925, and the later act overruled. However, it has been regarded as ‘inapplicable’ by some senior judges as in the case of Thoburn v Sunderland City Council (2002), when dealing with ‘statutes of major political importance’, for example the ECA 1972 and the Human Rights Act 1998 (HRA 1998). There is a debate over the Acts of Union, and their effect on parliamentary sovereignty. Professor JDB Mitchell reflected on Article 1 of the Act of Union with Scotland Act 1706 that stated that England and Scotland will ‘for ever after be united’. Mitchell argued that this meant that new parliaments were ‘born unfree’ as the Acts of Union form a ‘higher law’ which binds and limits the powers of parliament. However, the Act of Union with Scotland 1706 has changed several times, in particular through religious pressures. The Protestant Religion and Presbyterian Church Act 1707 has been altered significantly with the introduction of new acts ‘to reflect greater religious toleration’. Similarly the Act of Union with Ireland 1800 was declared to ‘last forever’, although in 1949 independence was granted to southern Ireland, but the UK retained Northern Ireland as part of ‘His Majesty’s dominions’.

The third rule that, no person or body, including a court of law may question the validity of parliament’s enactment’s, essentially means that once a law has been passed, it must be followed as was in the case of Pickin v British Railways Board (1974). An act was passed by a procedural irregularity and was opposed by Pickin, but the House of Lords ‘could not be persuaded that it had any constitutional authority to investigate the allegation’. However, the United Kingdom joined the European Economic Community by virtue of the Brussels Treaty of Accession 1972. Since then it has been said that the ECA 1972 has had a detrimental effect on Parliamentary Supremacy, as the act essentially allows Europe to be supreme. Section 2(1) of the act provides that Community law shall have direct applicability to UK law and Section 2(4) provides primacy of Community law, resulting in the supremacy of European law, as stated in Costa v ENEL (1964).  The restrictions put upon Parliament by the ECA 1972 were first realised in the case of R v Secretary of State for Transport ex parte Factortame. The European Court of Justice held that the Merchant Shipping Act 1988 was contrary to the European Economic Communities Treaty. It was therefore set aside and relief granted to Factortame. This was the first time that another ‘body’ has told the UK Parliament to set aside an Act, and conflicts with Dicey’s third rule of Parliament being unquestionable. However, in theory as Parliament allowed us into Europe, it can just as easily remove us from. This is only theoretical though, as in practice it is politically impossible. Additionally if parliament chooses to legislate contrary to Community Law, then the judges will follow it, as in the case of Macarthys v Smith (1979).

Another argument against Dicey’s idea that Parliamentary Supremacy is still relevant is the issue of devolution.

While the Labour government were enthusiastic about the devolution of legislative power, it also had the prerequisite of retaining sovereignty of the United Kingdom Parliament. Section 28(7) of the Scotland Act states that ‘… does not affect the power of the Parliament of the United Kingdom to make Laws for Scotland’. This therefore indicates that although the power has been devolved, the UK Parliament is still supreme. Additionally, Parliament can still legislate for Scotland, and still has ‘the power to abolish the Scottish Parliament’ and to reclaim power.

The HRA 1998 imposes an obligation to make ‘declarations of incompatibility’ of legislation. When such a declaration is made it is then referred back to the executive, who decides whether to amend the law to follow convention rights. It is expected though, that Parliament would move quickly to amend it, thus the provision for a ‘fast-track parliamentary amendment process, by the use of Remedial Order. The HRA 1998 has had more of a subtle impact on parliamentary supremacy, as it only provides a requirement to interpret legislation ‘in so far as it is possible’ to be compatible with the Convention. However it has become established as a ‘yardstick against which all actions of government may be judged’. Nonetheless, the Act was passed by Parliament, therefore by a simple majority vote it can just as easily be repealed or amended.

It would seem that there have been many changes within Parliament that have been said to nullify Dicey’s view of Parliamentary Supremacy, such as devolution, the ECA 1972 and HRA 1998. However by looking at the creation of these acts, it is said that as Parliament has signed up to them it can therefore remove itself, legally, clearly following Dicey’s first rule that Parliament can make and unmake any law. One of the prerequisites for the devolution of Scotland is that UK Parliament can make law for Scotland, and the Acts of Union, although believed to be binding, have been amended several times, therefore still complying with Dicey’s second rule.

The HRA 1998 only places an obligation on Parliament, of which there is no legal requirement to follow. Therefore if Parliament legislates contrary to Community Law, the judges have to follow it, thus following Dicey’s third rule of Parliament being unquestionable.

Conclusively, although Parliamentary supremacy has developed and changed, it is still as legally relevant now as it was when A.V. Dicey wrote ‘the law of the constitution’ in 1885.

Bibliography

Primary Sources

Statutes

Acquisition of land Act 1919

Act of Union with Scotland 1706/1707

Act of Union with Ireland 1800

European Communities Act 1972

Housing Act 1925

Merchant Shipping Act 1988

Parliament Act 1911

Parliament Act 1949

Septennial Act 1714

War Crimes Act 1911

Cases

Burmah Oil Company v Lord Advocate [1965] AC 75

Costa v ENEL [1964] ECR 585

Macarthys V Smith [1979] 3 All ER 32

Pickin v British Railways Board [1974] AC 765

R v Secretary of State for Transport ex parte Factortame (no 2) [1991] AC 603

Thoburn v Sunderland City Council [2002] 1 CMLR 50

Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733

Secondary Sources

Textbooks

H Barnett, Constitutional and Administrative Law, (7th edition, Routledge, Cavendish 2009) 133-170

A Carroll, Constitutional and Administrative Law, (4th edition, Pearson-Longman 2007) 90-112

A.V. Dicey, Law of the Constitution, (10th edition, 1959)

J Jowell and D Oliver, The Changing Constitution, (6th edition, Oxford University Press, Oxford, 2007)

K Malleson, The Legal System, (3rd edition, Oxford University Press, Oxford 2007)

N Parpworth, Constitutional and Administrative Law, (5th edition, Oxford University Press, Oxford 2008) 76-110

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