6.2 Historical Development

Despite eschewing historical methods, Dicey (1915, p. 67) said that

England had always been governed by an absolute legislator in the

form of the Crown, originally alone and later in partnership with

Parliament. However, a widely recognised feature of English constitu-

tional history was that absolute notions of monarchy never took

hold as they did in other European states during the sixteenth century.

The medieval idea of the monarch being subject to the common

law remained influential, and until the sixteenth century Parliament

was primarily regarded as a body which declared existing law rather

than making new law.

As early as the fourteenth century it became clear that the king could

not exact taxes without the permission of Parliament, and from this

124 General Principles of Constitutional and Administrative Law

power base Parliament could control the making of laws. A statute of

Edward III (14 Edw. III, stat.ii.c.1) declared that the nation ‘should be

no more charged or grieved to make any common aid or sustain charge

except by the common assent of the prelates, earls, barons, and other

magnates and commons of the realm and that in Parliament’. ‘Nor does

the king by himself or by his ministers impose tollages, subsidies or any

other burdens whatsoever on his subjects, nor change the laws nor

make new ones without the concession or assent of his whole realm

expressed in Parliament’ (Sir John Fortescue, De Laudibus Legum

Angliae (1468–70)). On the other hand, Parliament could not act

without the king’s consent, hence the notion of the English constitution

as a ‘harmonious’ constitution driven by the co-operation of the

powerful groups within the realm.

By the sixteenth century it had become clear that Parliament could

change the common law. Even the Tudor monarchs who developed a

strong central executive recognised that the full power of the Crown

could be exercised only in combination with Parliament. In 1543,

Henry VIII declared ‘We be informed by our judges that we at no time

stand so highly in our estate Royal as in the time of Parliament

wherein we as head and you as members are conjoined and bound

together into one body politic’. The most dramatic example of this

was the Reformation Parliament (1529 to 1536) which destroyed the

medieval social order by making the Church part of the English state.

Throughout the seventeenth century the political struggle between

the king and Parliament was punctuated by a series of inconclusive

lawsuits which raised the question whether the king could make law

without parliamentary consent. The Stuart kings challenged tradi-

tional doctrine by drawing on new ideas of the state personified by

the crown. The cases seem to assume the ultimate supremacy of the

common law as mediating between Crown and Parliament. It was

established in 1611 that the monarch cannot legislate without Parlia-

ment (Case of Proclamations) but other cases upheld wide prerogative

powers. For example in R v. Hampden (1637) it was held, albeit by a

divided court, that the king has emergency tax raising powers (see also

Godden v. Hales (1686); Thomas v. Sorrell (1674)).

Parliamentary supremacy might be said to derive from the 1688

revolution (see Picken v. BRB (1974)). However, the revolution estab-

lished only that Parliament was superior to the king and did not deal

explicitly with the relationship between Parliament and the common

law. Indeed, the revolutionaries claimed that their arrangements could

be justified under the common law doctrine of necessity in that by

abdicating King James had created a power vacuum. The revolution

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was also rationalised on the basis suggested by Locke that a lawmaker

holds power on trust to protect the ‘rights’ of the people. A realistic

assessment might be that the courts were responding to a political

change begun in 1688 by accepting the doctrine of parliamentary

supremacy in return for security of tenure which they were given by

the Act of Settlement 1701.

However seventeenth-century dicta, notably Coke CJ in Dr Bonham’s

Case (1610), and Day v. Savidge (1615), and even post-revolutionary

dicta (City of London v. Wood (1710); Forbes v. Cochrane (1824)),

could be read as asserting that an unreasonable Act of Parliament is

void. By the middle of the eighteenth century this had been ‘revised’ in

favour of the modern compromise that the courts interpret statutes

so as to avoid an unreasonable or unjust meaning (see Blackstone,

1776, Comm. 91, 160; cf. Jennings, 1959; Wade, 1955). Blackstone also

emphasised the importance of the legislature being ‘less corrupt’

than the executive. Thus Blackstone anticipated the modern position

that Parliament might be too corrupt to use its sovereignty against

the executive.

By Dicey’s time, parliamentary supremacy met the political needs of

the day. It conformed to the extension of democracy and the increas-

ing need for drastic governmental powers of intervention in a change-

able industrial society. Case law emerged in support of parliamentary

supremacy during the middle of the nineteenth century (e.g. Lee v.

Bude and Torrington Railway Co. (1872); Edinburgh and Dalkeith

Railway Co. v. Wauchope (1841)) which has been consistently con-

firmed throughout this century (see Manuel v. A-G (1983); Pickin v.

British Railways Board (1974)).

6.3 The Application of Parliamentary Supremacy

The legal doctrine of parliamentary supremacy is concerned only with

an Act of Parliament (a statute). An Act of Parliament, as the preamble

to every Act reminds us, is an Act of the monarch with the consent of

the House of Lords and the House of Commons, the Queen in Parlia-

ment. In certain circumstances, however, the consent of the House of

Lords can be omitted under the Parliament Acts 1911–1949 (see below

12.3.4). Even if we believe that the House of Commons is the political

sovereign, a resolution of the House of Commons has in itself no legal

force, except in relation to the internal proceedings of the House

(Bowles v. Bank of England (1913); Stockdale v. Hansard (1839)).

126 General Principles of Constitutional and Administrative Law

6.3.1 Freedom to make any kind of law

It will be recalled that Dicey identified two facets of parliament-

ary supremacy. The first is that Parliament can make any laws it

likes irrespective of fairness, justice and practicality; hence Sir Ivor

Jennings’s famous example that Parliament can make it an offence for

Frenchmen to smoke in the streets of Paris (1959, p. 170). The UK

courts are bound to obey a statute applying anywhere and whether

or not the relevant overseas courts would recognise it is immaterial

(e.g. Manuel v. A-G (1983)). It has been said that Parliament cannot

make a man a woman, or a woman a man, but this is misleading. The

so-called laws of nature are not rules at all. They are simply facts

which occur in a predictable pattern. A statute which enacted that all

men must be regarded as women and vice versa would no doubt be

impractical, but would be legally valid.

Dicey relied on examples of valid statutory provisions that in

countries that do not recognise a principle of legislative supremacy

would arguably be unlawful. However, these examples do not prove

that the courts will not refuse to apply a statute that they consider even

more unjust. All Dicey was saying is that the evidence to date was

consistent with parliamentary supremacy. Modern cases continue to

support Dicey. They include retrospective legislation (Burmah Oil Co.

Ltd v. Lord Advocate (1965); War Damage Act 1965); statutes conflict-

ing with international law (Mortensen v. Peters (1906), Cheney v. Conn

(1968)), or with fundamental civil liberties (R. v. Jordan (1967)).

Picken v. British Railways Board (1974) goes further since the House

of Lords expressly affirmed that the courts must obey any law made

by Parliament and could not even examine whether the legislation

had been made in good faith in accordance with the proper parlia-

mentary procedures.

6.3.2 Parliament cannot be overridden: implied repeal

Turning to the second limb of Dicey’s formulation, that no other body

can override Parliament, this has two aspects. Firstly, neither the

UK courts nor international courts such as the European Court of

Human Rights have the power to declare an Act of Parliament invalid

(MacCormick v. Lord Advocate (1953)). Secondly, in the event of a

conflict between a statute and some other kind of law, the statute must

always prevail. As regards Dicey’s third limb, a statute cannot be

restricted even by another statute. However, this presents two opposite

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Parliamentary Supremacy

possibilities. It could be argued either that an earlier statute cannot be

repealed by a later statute or that a later statute should always repeal

an earlier one. The solution chosen by the law is that a later statute can

indeed repeal an earlier one, in other words Parliament cannot bind its

successors. This principle can be justified as democratic since it would

be wrong for any group of people to tie the hands of the future. For

example, Edmund Burke argued that the 1688 revolution had per-

manently enshrined a constitution which included the House of Lords.

Thomas Paine answered this as follows: ‘Every age and generation

must be as free to act for itself, in all cases as the ages and genera-

tions which preceded it. The vanity and presumption of governing

beyond the grave is the most ridiculous and insolent of all tyrannies’

(1987, p. 204). However, Parliament could bind its successors by abol-