In most countries all over the world, the validity of any law can be traced back to a written constitution, which forms the basis of the organisation of the country. However, in the United Kingdom, once the origin of a legal rule is traced back to an Art of Parliament, there is no further document by which the validity of that Act can be determined. This is the strike consequence of the absence of a codified constitution in the United Kingdom. The Power of Parliament to enact legislation is given by The Bill of Right 1689, and further conformed by the Parliament Act 1911-49. The historical origin of Parliamentary supremacy lie in the gradual development of the understanding that changes to the law require not merely the personal decision of the Crown, but the ‘advice and consent’ of the representatives of Lords and Commons, formally assembled in the two Houses of Parliament. This is guarantee by the Bill of Right 1689, Art 1: “That the pretended power of suspending of laws, or the execution of laws by regal authority without consent of Parliament is illegal.” From this point, we can fully believe that the creation of a new law has been a power possessed by the Parliament alone.
However, what was equivocal here is whether there are any restrictions or limits on this power possessed by the UK Parliament. During the seventeenth century there were suggestions that any Act of Parliament which was unreasonable, repugnant or impossible would be declared invalid by the courts. With the declined of this suggestion, such sentiment were no longer expressed, and as Parliament was not in any case interested in enacting unreasonable legislation, the courts were happy to accept the validity of any Act Passes by traditional parliamentary procedure. Parliament was then to be treated as a supreme law-maker. The most celebrated statement of parliamentary supremacy is that of Dicey: “that Parliament has the right to make or unmake any law whatever; and further 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.” It received judicial confirmation in the case Madzimbamuto v Lardner-Burke [1969] 1 AC 645, where Lord Reid held: “ It is often said that it would be unconditional for the UK Parliament to do certain thing… If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid”. Therefore, it is clear that the UK Parliament can do, and has done in other countries might be regarded as unconstitutional, or else it may break the International Law (see Mortensen v Peters (1906) 8F(J) 93).
There remains, however, one dispute area. The only one thing that UK Parliament cannot do is it cannot bind its successors. The Parliament which is supreme is the current Parliament, so, it has the power to repeal the legislation of any previous Parliament. Normally, in UK, such repeal is expressed in the later Act. If the UK Parliament simply enacts something which is inconsistent with an earlier Act, the court will treat this as an implied repeal of the earlier Act by the later. In Ellen St Estates ltd v Minister of Health [1934] 1 KB 590, the Court of Appeal rejected an attempt to argue that the Housing Act 1925 should be read subject to inconsistent provisions in the Acquisition of Land Act 1919. The 1925 Act impliedly repealed those provisions. Therefore, it is clear that any attempts 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 successors has arisen and given rise to legal and academic debate.
From the above hypothetical case, subject to the Parliament Supremacy, The Lancashire Parliament Act 1999 can be repealed regardless to the four provisions given. The provision in the 1999 Act – section 13 will give no effect to the new Conservative Parliament to repeal the act. The Conservative Parliament can repeal the Act by normal ‘simple majority’. Again, we can look at the case Ellen St Estates ltd v Minister of Health [1934] 1 KB 590, The court once again, held that Parliament cannot bind itself as to the form of subsequent legislation and cannot effectively enact that a provision in one statute shall not be altered by a subsequent Act save the express words. This is absolutely contrary to the constitutional position that the Parliament can alter an Act previously passed, and it can do so by repealing in terms the previous Act. There is nothing to prevent Parliament creating special procedure; for example, the Northern Ireland Act 1998, s. 1 requires the holding of referendum before any legislation to remove Northern Ireland from the United Kingdom. But this is so called constitutional guarantee derives its validity from the 1998 Act, which could itself be repealed without a referendum. It is impossible to prevent this by stating in an Act that the Act itself could not be repealed without a referendum.
However, there is an extremely rare exception, that the Parliament would in fact be bound by such a provision regulating the manner and form of future legislation. This would enable the partial entrenchment of legislation, by requiring referenda or special majorities before laws, for example protecting civil rights or devolving power, could be repeal. This contention is supported by reference to some commonwealth cases, such as Attorney General for New South Wales v Trethowan [1932] AC 526, where The Constitution Act, 1902 of Australia, enacted by the legislature of New South Wales, was amended in 1929 by adding s. 7A, which provided that no Bill for abolishing the Legislative Council should be presented to the Governor for His Majesty's assent until it had been approved by a majority of the electors voting upon a submission to them made in accordance with the section; and that the same provision was to apply to a Bill to repeal the section. In 1930 both houses of the legislature passed two Bills, one to repeal s. 7A and the other to abolish the Legislative Council. The Privy Council held that the whole of s. 7A of the Constitution Act, 1902, was within the competence of the legislature of the State under s. 5 of the Colonial Laws Validity Act, 1865, that the provision that Bills of the nature stated must be approved by the electors before being presented was a provision as to "manner and form" within the meaning of the proviso; and accordingly that the Bills could not lawfully be presented unless and until they had been approved by a majority of the electors voting. In Harris v minister of the interior 1952 (2) SA 428, and Briberry Commissioner v Ranasinghe [1965] AC 172 given the same outcome. But in all these cases, the requirements as to the manner and form of future legislation were contained in the original UK statutes by which independence was granted, and it logically followed that these requirements could not be changed by the action of a non-sovereign legislature. As the consequence of the absence of codified constitution, we may say that there is no such a supreme law in UK, and therefore, this exception will hardly to be applied in UK.
However, another point to be considered here is the Public opinion. Public opinion will normally be given a big weight when the new government seeks to enact a new act. When the intention of the new Prime Minister to repeal the Lancashire Act 1999 is known by the public, surely there will be responses given from the public. If, for example, the reaction from the public is mainly oppose the repeal, then the new conservative government will have to reconsider their plan, as this will definitely lower their chance to win the next election if they ignore the public opinion. In order to secure their seats in the Commons, surely the Public opinion will be taken into consideration by the Conservative party. Moreover, the opinion from resident of Lancashire should be obtained. They are the people who will be directly affected by the decision. People’s view will be one of the important criterias when government seeks to enact a new act, even this is not necessary process asked by the UK law or constitution. Another thing should be pointed out here is as we are concerned, Conservative party only gained a small majority, which is quite unstable in the House of Commons. Therefore, the Prime Minister shouldn’t ask for the repeal at the time being, due to the insecure position he has at the moment. However, limitation stated here is merely a small constrain, but it means nothing. As what dicey said, if the parliament chose to do so, no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
The last question to be considered here is, if the Lancashire Act 1999 contained one of the provisions stated, would the Queen have been entitled to refuse the Bill of Royal Assent? I would say yes, the Queen has the right to refuse such Act if she thinks it is unreasonable. This is her majesty’s prerogative right. In Law the Queen could refuse to give Royal Assent to a Bill, but under a clear convention she is required to consent to its enactment. This convention has become gradually established over the last three centuries, though it is debatable whether the obligation it imposes is absolute in all circumstances. No Monarch has refused Assent since Queen Ann’s reign. But it is well known that George V contemplated refusal in the case of Irish Home Rule Bill in 1914. He feared an insurrection in Ulster, if the Bill were to be enacted without the Province being excluded from its terms. It may be that even now a Monarch would be justified in withholding Royal Assent if its enactment were to pose a clear danger to public order, or if the two Houses of Parliament had passed without good reason a Bill to postpone a General Election. In both these cases the Monarch might be acting constitutionally if she ignored the government’s advice, since Assent would be refused to preserve public order or, in the second situation, democratic values.
