Ishing itself, having first created a body with more limited powers.

The approach taken by the English courts makes it relatively easy to

override earlier statutes. This is the ‘implied repeal’ doctrine according

to which a later statute which on an ordinary reading is inconsistent

with an earlier statute impliedly repeals the earlier statute to the extent

of the inconsistency. The court is not required to attempt to reconcile

the two, and it is irrelevant that the earlier Act states that it cannot be

repealed: Vauxhall Estates Ltd v. Liverpool Corporation (1932); Ellen

Street Estates Ltd v. Minister of Health (1934). However, the implied

repeal doctrine, although consistent with parliamentary sovereignty, is

not essential to it. It is merely a particular approach to interpretation

and there is nothing to prevent a statute from requiring the courts to

interpret legislation as overriding another statute only if express or

very clear language is used, thus putting a partial brake on the

majority. For example s. 3 of the Human Rights Act 1998 requires all

other statutes to be interpreted in accordance with the rights protected

by the Act ‘if it is possible to do so’ (see Chapter 18). As regards a

statute passed before the Human Rights Act the implied repeal

doctrine therefore does not apply. The court must try to reconcile the

two and, if this fails, the earlier statute must prevail.

6.4 The Ingredients of an Act of Parliament

The courts obey, not Parliament as an institution but a law which

counts as a valid ‘Act of Parliament’. Two questions arise from this.

First, what rules create an Act of Parliament? Secondly, to what extent

can the courts investigate whether these rules have been obeyed? There

128 General Principles of Constitutional and Administrative Law

are complex procedural rules for producing statutes but not all of

them affect the validity of a statute. Three kinds or levels of rule can be

distinguished.

1. There is the basic definition of a statute as a document that received

the assent of the three institutions that comprise the Queen in

Parliament. The basic procedural requirements for passing an Act

are currently the separate consents of the three elements, i.e. Queen,

Lords and Commons . The preamble to a statute invariably recites

that the required assents have been given. A court is not bound by a

document that does not appear on its face to have received the

necessary assents but conversely must accept the validity of a

document that does so appear (Prince’s Case (1606); Hall v. Hall

(1944)). This is called the ‘enrolled Act rule’ and precludes the courts

from investigating whether the proper procedures have been com-

plied with (Edinburgh and Dalkeith Railway v. Wauchope (1842);

Manuel v. A-G (1983)). The official version of a statute was tradi-

tionally enrolled upon the Parliament Roll. Today there is no

Parliament Roll as such, but two official copies of the Act are in the

House of Lords’ Library and the Public Record Office.

2. A second layer of rules regulates the relationship between the three

institutions. Some are conventions with which the courts are not

concerned, for example the rule that the monarch cannot refuse the

Royal Assent. Others are statutory. For example the Parliament

Acts of 1911 and 1949 restrict the power of the House of Lords to

refuse its consent to a bill passed by the Commons. In principle the

court should be able to decide whether these rules have been

obeyed. However, the Parliament Act 1911 foresaw this possibility,

and excluded it by providing that a certificate given by the Speaker

under the Act to the effect that the requirements of the Act have

been complied with, is ‘conclusive for all purposes and shall not

be questioned in any court of law’ (Parliament Act 1911 s. 3).

Similarly, the Regency Act 1937 provides that the Royal Assent can

be given by a regent if the monarch is under 18, or ill, or in certain

other events. The court may be able to investigate whether the Act

has been properly applied.

3. Thirdly, there is a complex network of rules concerning the com-

position and procedure of each House. These include the various

stages of passage of a bill, voting procedures, and the law govern-

ing qualifications for membership of either House. They comprise

a mixture of statute, convention and the ‘law and custom of

Parliament’ enforced by the House itself. It is settled that ordinary

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courts have no jurisdiction to enquire into any matters related to

the internal affairs of the House. Quite apart from the enrolled Act

rule (above), these are matters of parliamentary privilege and are

exclusively within the jurisdiction of the House itself. This is true

even if it is alleged that the House has violated a statute, or that a

bill has been introduced fraudulently (see Pickin v. British Railways

Board (1974)).

6.5 Dividing Parliamentary Supremacy?

There are arguments that Parliament can, in particular contexts be

limited by the law either by transferring its power to others or because

Parliament is the product of a previous transfer of power the terms of

which limit Parliament. In other words sovereignty is divisible. How-

ever, if this is so, then it seems pointless to use the concept of sov-

ereignty at all. The point of the concept is to express the Hobbesian

assertion that we are prepared to trust a particular body with unlimited

lawmaking power. If sovereignty can indeed be divided, all we are

saying is the truism that each power holder has freedom within its

allocated sphere whatever that might be.

Cases where sovereignty may have been divided are as follows:

. Parliament may not legislate for former British territories which

have been granted independence (politically but not legally true).

. Parliament may not alter certain provisions of the Acts of Union

with Scotland and Ireland because these created Parliament

(unlikely).

. Parliament may be able to alter the ‘manner and form’ of legislation

and so effectively restrain itself (plausible).

. Parliament has surrendered some of its sovereignty by joining the

European Community (misleading).

6.5.1 Grants of independence

For example the Canada Act 1982 s. 2 provides that ‘no Act of the

United Kingdom Parliament passed after the Constitution Act 1982

comes into force shall extend to Canada as part of its law’. Could

Parliament repeal that statute thus taking jurisdiction over Canada

again? The answer is yes as far as the UK courts are concerned (British

Coal Corporation v. R. (1935), Manuel v. A-G (1983)). However, only

130 General Principles of Constitutional and Administrative Law

those who recognise Parliament’s power, that is, UK courts, are legally

obliged to obey such a statute and a UK court would even be required

to hold that Canadian courts should obey the statute. Whether Canada

falls into line is entirely a matter for its own legal and political

institutions.

Such a statute is of course likely to be politically impracticable.

There is a dictum by Lord Denning in Blackburn v. A-G (1971), that

legal theory must give way to practical politics. All his Lordship seems

to be saying is that it would be, in a practical sense, impossible for

Parliament to reverse a grant of independence. On the other hand,

Blackstone (1776, p. 160) said that an ‘impossible’ statute would be

invalid and a legal principle that is so out of line with common sense

might well be worth reconsidering.

6.5.2 Acts of Union: was Parliament born unfree?

The modern UK Parliament is the result of two treaties. First the

Treaty of Union with Scotland, 1706, created the Parliament of Great

Britain out of the former Scottish and English Parliaments. The treaty

required, among other things, that no laws which concern private

rights in Scotland shall be altered ‘except for the evident utility of

the subjects within Scotland’. There were also powers securing the

separate Scottish Courts and Presbyterian Church ‘for all time coming’.

The new Parliament was created by separate Acts of the then Scottish

and English Parliaments, giving effect to the treaty (see Act of Union

with Scotland 1706). Some Scottish lawyers therefore argue that

Parliament was ‘born unfree’, meaning that the modern Parliament

cannot go beyond the terms of the Acts that created it. They suggest

that the protected provisions of the Act of Union, cannot be altered

by Act of Parliament. In effect, the union created a new Parliament

which, in relation to the protected Scottish provisions, does not

necessarily have the quality of supremacy inherent in the former

English Parliament (see, generally, Munro, 1999, p. 137, Upton, 1989,

p. 105; LQR, p. 75).

In the case of Northern Ireland there was a Treaty of Union in 1798,

which preserved certain basic rights in Ireland including the con-

tinuance of the Protestant religion and the permanence of the union

itself. The Treaty was confirmed by the Act of Union with Ireland,

1800, which created the UK Parliament. The Act covered the whole of

Ireland but, what is now the Republic of Ireland later left the Union.

It might be argued that the Northern Ireland Act 1998 s. 1 which

provides for the Union to be dissolved if a referendum so votes, would

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Parliamentary Supremacy

be invalid as contrary to the Act of Union. The 1998 Act makes no

express reference to the Act of Union with Ireland, s. 2 merely

providing that the Act overrides ‘previous enactments’. This lets in the

argument that even if the Act of Union is not sacrosanct, the implied

repeal doctrine is not strong enough to repeal it by means of general

language (see Hadfield, 1998). Political circumstances in Northern

Ireland make this ambiguity understandable.

The crucial provisions of the Scottish Union have not been altered,

but s. 37 of the Scotland Act 1998 expressly states that the provisions

of the Act are to take priority over the Act of Union. This rules out the

implied repeal argument but begs the question whether an Act can do

this at all. The issue has surfaced in a few cases in all of which an Act

of Parliament was obeyed. In ex parte Canon Selwyn (1872) (Ireland),

the court denied that it possessed the power to override a statute.

In two Scottish cases, MacCormick v. Lord Advocate (1953) and

Gibson v. Lord Advocate (1975), the Scottish courts were able to avoid

the issue by holding that no conflict with the Acts of Union arose.

However, in both cases the argument in favour of the Acts of Union

was regarded as tenable, particularly by Lord Cooper in MacCormick.

However in MacCormick his Lordship, with the apparent agreement

of Lords Keith and Gibson, suggested that the issue might be ‘non-

justiciable’, that is, outside the jurisdiction of the courts and resolvable

only by political means. On this view a statute that flouts the Acts of

Union may be unconstitutional but not unlawful. In both cases the

courts left open the question whether they could interfere if an Act

purported to make drastic inroads into the Act of Union, for example

by abolishing the whole of Scottish private law (see also Sillers v.

Smith (1982)). The better view is probably that parliamentary suprem-

acy is an evolving doctrine which developed after the Acts of Union,

the latter being no different in law than any other statute.

6.5.3 The redefinition theory

This is an attempt to circumvent the rule that Parliament cannot bind

its successors. The argument has various labels, sometimes being called

the ‘new view’, sometimes the ‘entrenchment’ argument, sometimes the

‘manner and form’ theory and sometimes the distinction between

continuing and self-embracing sovereignty. It has attracted consider-

able academic discussion and can draw support from certain overseas

cases (see below). Apart from a brief discussion by Slade LJ in Manuel

v. A-G (see above) it has not yet surfaced in the English courts (see

Munro, 1999; Jennings, 1959; Winterton, 1976).

132 General Principles of Constitutional and Administrative Law

The redefinition argument is essentially that, if Parliament can do

anything, it can prescribe what counts as a solid Act of Parliament

and in so doing make it difficult to change an Act that it ‘entrenches’.

It can be supported as follows:

1. There must be rules of law that tell us what counts as an Act of

Parliament. The redefinition theory relies on the proposition that in

making law it must comply with the procedures for making a valid

law that are in force from time to time. A document which purports

to be a statute but which has not been passed according to these

basic rules is not a statute and has no legal force.

2. The courts are obliged to apply only a law that has a valid pedigree

in this sense. The crucial question therefore is whether an Act of

Parliament can modify the procedural rules which prescribe what

counts as an Act of Parliament. If Parliament can indeed do

anything then we must concede that it can redefine what counts as a

valid law. If this is so then Parliament can after all bind its

successors by creating a procedure that makes it difficult to change

the law. Suppose for example a statute enacts a bill of rights and

goes on to say that ‘no law shall be passed that is inconsistent with

the bill of rights without a referendum of the people nor shall this

statute be repealed without a referendum of the people’. This is

known as double entrenchment. Another version of entrenchment

might be a ‘notwithstanding’ clause, stating that the bill of rights

shall be repealed only by an Act which expressly states that it is to

apply ‘notwithstanding’ the bill of rights (Oliver, 1991, p. 158).

3. An entrenched statute can still be repealed but not without the

special procedure. Those who reject the theory argue that if Parlia-

ment ignores the special procedure the courts will simply obey the

most recent Act of Parliament and thus treat the special procedure

as impliedly repealed. However, this misses the point since, accord-

ing to the argument, a document which has not been produced

under the special procedure is not a valid statute and so must be

ignored, just as an ordinary law, however, strongly promoted by

Parliament itself would be ignored if it did not have the Royal

Assent. Parliament would remain supreme but would, for the

purpose of the statute which it is intended to protect, now mean for

example Queen, Lords, Commons and the referendum.

4. Some would go further and argue that the special ‘entrenching’

procedure could consist of a procedure within the traditional

Parliament, for example a two-thirds majority of the Commons

being required to repeal a particular statute. However, this weaker

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Parliamentary Supremacy

form of entrenchment seems to fall foul of the rule that the courts

cannot enquire in the internal procedures within each House.

On the other hand a statute could expressly empower the courts to

investigate the internal procedures.

However, judicial support for the redefinition theory is slender.

It has been accepted in two commonwealth cases (A-G for New South

Wales v. Trethowen (1931) and Bribery Commissioners v. Ranasinghe

(1965)) (Privy Council) and in a South African case (Harris v. Minister

of the Interior (1952)). Trethowen went so far as to suggest that the

court could grant an injunction to prevent a bill being submitted for

the Royal Assent if it did not comply with the entrenched procedure.

This seems unlikely to apply in England since the courts have

consistently refused to interfere with the conduct of parliamentary

proceedings. The issue would arise in the UK if a court were asked to

obey a document that fails to comply with an entrenched provision.

These cases are ambiguous authority. Trethowen, Ranasinghe and

Harris have been explained on the basis that the legislatures in these

countries were not truly supreme in the same way as the UK Parlia-

ment. In Trethowen and Harris a UK Act had established the powers

of the legislatures in question, and in Ranasinghe the relevant en-

trenching power was contained in a written constitution. On the other

hand, in Trethowen, the relevant UK Act (the Colonial Laws Validity

Act 1865) provided that the New South Wales Parliament had

complete lawmaking power as far as internal matters were concerned.

However, when Trethowen reached the Privy Council it was empha-

sised that the case turned on the fact that a subordinate legislature was

involved (see [1932] AC at 526). In Harris the Statute of Westminster

1931 had given the South African Parliament unlimited lawmaking

power. Moreover the court stressed that its reasoning did not assume

that the Parliament was in any sense subordinate. Indeed in both

Trethowen and Ranasinghe there were dicta that the same arguments

might apply to the UK Parliament. It was said in Ranasinghe (at

p. 198) that the entrenched clause argument does not limit parliamen-

tary supremacy, but merely changes the way in which that supremacy

must be exercised.

The issue also arose in Manuel v. A-G (1982). A peculiarity of the

Canadian Constitution was that certain changes to it could only be

made by the UK Parliament. Canada wished to enact a new constitu-

tion free from this remnant of empire. A group of Canadian Indians

brought an action in the English courts arguing that the Canada Act

1982 (a UK Act giving effect to Canada’s wishes) was invalid because

134 General Principles of Constitutional and Administrative Law

it was passed without the request or consent of the Indian nations of

Canada whose consent was arguably required under s. 4 of the Statute

of Westminster 1931, a UK statute. Megarry J at first instance applied

the traditional principle that no court can refuse to obey an Act of

Parliament and struck out the action. However, the Court of Appeal

avoided grappling with the problem of parliamentary supremacy by

pointing out that s. 4 did not say that that actual consent was required,

but only that the Act must ‘declare’ that the relevant consent had been

given. The Canada Act contained the declaration and whether or not it

was true was therefore legally irrelevant. The Court of Appeal was

prepared at least to recognise the possibility that if an Act stated that a

consent must actually be given, then an attempt to pass an Act without

that consent could be invalid even from the UK perspective.

It has also been suggested that the UK Parliament has redefined

itself several times. Thus, the Parliament Acts 1911 and 1949 provide

that in certain circumstances a bill can receive the Royal Assent

without the consent of the House of Lords. Under the Regency Act

1937 the powers of the monarch can be exercised by certain other

people when the monarch is indisposed or absent. However, none of

this legislation places any limitations upon the powers of Parliament.

Moreover even if these provisions can be regarded as redefining

Parliament, there is no need for a court to follow the logic of this to its

conclusion so as to permit any kind of redefinition. On the other hand

the argument at least opens the way to the redefinition possibility.

The most formidable challenge to the ‘redefinition’ argument comes

from Professor H. W. R. Wade (1955, 1980, ch. 3). Wade argues that

the meaning of ‘Parliament’ is ‘fixed’ by a rule which is ‘above and

beyond the reach of Parliament’. Parliament cannot simply make itself

supreme, so there must be some independent explanation of why

Parliament is supreme. Wade argues that the explanation lies in the

events of 1688 which created the fundamental rule of our constitution,

a rule which is unique in character, a ‘grundnorm’ essentially a politi-

cal principle standing outside and above the ordinary legal system

and giving it its validity. Wade goes on to argue that, because this

rule gave Parliament its power, it cannot be altered by Parliament, so

that Parliament remains as monarch, Lords and Commons, and any

attempt to redefine Parliament, for example, by adding a referendum,

would be ineffective. Thus, paradoxically Wade supports the tradi-

tional notion that Parliament can do anything by admitting that there

is one thing Parliament cannot do, that is to alter its own definition.

Wade regards laws passed under the Parliament Acts 1911 and 1949,

as not being truly Acts of Parliament, but special forms of delegated

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Parliamentary Supremacy

legislation. Therefore the House of Lords could not be abolished under

the Parliament Act machinery under which legislation can become law

without the consent of the Lords because a delegate cannot enlarge its

own powers. Indeed, if Wade’s ‘higher law’ argument is accepted, it

may not be possible lawfully to abolish the House of Lords at all.

Wade accepts that the doctrine of parliamentary supremacy could in

political reality be abolished, but would regard this as a revolution,

that is, the introduction of an entirely new basic principle. How will we

know whether such a revolution has taken place? Wade would place

the matter in the ‘keeping of the courts’, so that if the courts were to

accept the redefinition theory this would authoritatively signify the

‘revolution’. From this Wade concludes (1980, p. 37) that one way

to ensure that a bill of rights prevailed over a later statute would be to

make the judges swear a new form of judicial oath, one of loyalty

to the bill of rights rather than to justice according to law.

There are difficulties with Professor Wade’s argument. For example

why should there be a single grundnorm at all? In particular why

should the meaning of parliamentary supremacy be frozen in time as of

1688? Could the doctrine rather be seen as one of continuous evolution?

Moreover, the notion of revolution is usually confined to a change

that is either violent or entirely outside the existing framework of law.

A change brought about in accordance with the existing rules which is

the basis of the redefinition argument, is surely worth distinguishing

from a revolution. Indeed, it seems a misuse of language not to do so.

Moreover, even if we accept the idea of Wade’s ‘higher rule’ this does

not exclude the redefinition theory. Why should the higher rule, sup-

posedly made by those in charge of the 1688 revolution, not authorise

its creature – Parliament – to alter the rule itself? Wade believes that

the courts can alter parliamentary supremacy and calls this a revolu-

tion, but denies that Parliament can do so. Neither logic, nor practical

politics, nor indeed historical evidence, point inevitably to this.

Perhaps the difference between Wade’s theory and the redefinition

theory is really only one of language, so that, although incommensur-

able, they turn out to be combinable. Both theories agree that the

courts could be faced with the choice and would have to resolve it. Both

probably agree that, at this rarefied level, politics and law are inextric-

ably intermingled. If the courts accept a ‘redefinition of Parliament’

Wade would call it a revolution. Others would regard the court as

having resolved a basic ambiguity within the existing constitution,

sometimes described as ‘continuing or self-embracing sovereignty’.

It is a matter for you, the reader, to decide which approach is the

more helpful.

136 General Principles of Constitutional and Administrative Law

6.5.4 The European Union

EC law is made by various special bodies appointed by the member

states and is locked into the legal systems of each member state in

accordance with the laws of that state. However, member states are

obliged under the Treaties to give effect to those community laws that

are intended to be binding within domestic law. It is sometimes argued

that the UK has therefore surrendered part of parliamentary suprem-

acy (see Blackburn v. A-G (1971)). If this is right then a democratic

body has committed the arrogance of trying to bind the freedom of

future generations. We shall discuss the matter in more detail in

Chapter 7 but will outline the position here.

A treaty as such cannot change English law. The European

Communities Act 1972 incorporated EC law into the UK constitution.

Another Act of Parliament could repeal the 1972 Act, the question

being how strong would be the language required to do so. The

European Communities Act 1972 s. 2 (4) states that ‘any enactment,

passed or to be passed . . . shall be construed and have effect subject

to the foregoing provisions of this section’. The provisions referred to

require among other things that the English courts must give effect

to certain laws made by European bodies (s. 2 (1)).

The effect of this seems to be that a UK statute, even one passed after

the relevant EC law, must give way to EC law. This is often described as

‘disapplying’ an Act. This creates a strong presumption of interpreta-

tion to the effect that the clearest language is needed to displace the

primacy of a community law and therefore displaces the doctrine of

implied repeal which we said earlier is not sacrosanct. It does not seem

to affect a statute that unambiguously states that it is to override

European law (see Garland v. British Rail Engineering Ltd (BREL)

(1983); MacCarthys Ltd v. Smith (1979); Factortame v. Secretary of

State for Transport (No. 2) (1991); Stoke-on-Trent City Council v. B&Q

plc (1991)). However, EC law seems to take priority over the Human

Rights Act 1998.

6.6 Parliamentary Supremacy and the Rule of Law

Dicey (1915, Ch. 13) tried to reconcile parliamentary supremacy with

the rule of law. He claimed that parliamentary sovereignty favours the

rule of law for three reasons. Firstly, since Parliament comprises three

separate elements – the Queen, Lords and Commons – it can express

itself only through the law in the form of an Act of Parliament with

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Parliamentary Supremacy

each branch checking the others. Secondly, Parliament has no direct

executive power and cannot directly appoint or dismiss the officials of

the executive government. Thirdly the rule of law ‘necessitates’

parliamentary sovereignty, in that if the executive wishes to violate

someone’s rights it must first obtain powers from Parliament and must

therefore place itself under the supervision of the courts whose loyalty

is to the statute not the wishes of the executive. Thus the courts

operate as a check on Parliament at least by interpreting statutes in

accordance with rule of law values.

However, Dicey’s view of both parliamentary supremacy and the

rule of law depended heavily on the pivotal role which Dicey believed

was played by the House of Lords as a brake on party politics and

custodian of traditional values. Dicey therefore relied on a separation

of powers within the sovereign body. He was also committed to the

view, which Craig (1994, ch. 2) refers to as ‘self-correcting democracy’,

that the voice of the nation, i.e. the majority of the electorate, should

ultimately prevail. Dicey did not therefore tackle the problem of

protecting minorities against the majority although he placed faith

in the pragmatic spirit of the common law as a means of protecting

civil liberties.

When Dicey revised his book on the brink of the First World War,

he realised that the emergence of powerful political parties and the

broadening of the popular franchise had greatly increased the power

of the executive not only over Parliament but also to manipulate the

electorate. In particular Dicey realised that the Parliament Act 1911

which prevents the House of Lords from blocking most bills

introduced in the Commons would make it more difficult to get rid

of a bad government. Moreover government had begun to provide a

wide range of services which benefited some groups at the expense of

others, so that a uniform public opinion, if it ever existed, could no

longer be assumed and the influence of disparate groups within society

including vested business interests was increasing.

As we saw in Chapter 5, modern courts will not interpret statutes

mechanically but will apply them in context, part of which is respect for

fundamental values and individual rights. The difficulty is of course to

draw the line between interpretation of and outright disobedience to a

statute. Anisminic Ltd v. Foreign Compensation Commission (1969) is

sometimes regarded as a judicial attempt to subvert Parliament under

the cloak of interpretation. The applicant challenged a ‘determination’

of the Commission that it was not eligible for compensation under a

statutory scheme. The governing Act stated that a ‘determination’

of the Commission could not be questioned in any court of law.

138 General Principles of Constitutional and Administrative Law

Nevertheless the House of Lords allowed the challenge on the ground

that a determination which was outside the Commission’s jurisidiction

in the sense of its area of power was a nullity and therefore it was not a

‘determination’ within the meaning of the Act. This reasoning has

been criticised as collapsing the distinction between interpreting a

statute and overriding one. The contrary argument is that Parliament

legislates in the knowledge of basic common law values, which, in

accordance with the rule of law, it can be taken to accept unless it

clearly states otherwise (see Piersen v. Secretary of State (1997) per

Lord Steyn). Far from being radical the Anisminic reasoning was fully

documented in the old cases. Therefore Parliament could have antici-

pated the line that the court might take and have used tighter language

if it wanted to exclude challenge.

The notions of the rule of law and separation of powers leave a

fundamental question unanswered. What happens if there is a conflict

between the will of the elected government clearly expressed in a

statute and fundamental rule of law values enforced by the courts?

Few would doubt that it is for Parliament to decide what is in the

general public interest but suppose Parliament passes a statute that for

good reasons, for example combating terrorism, suspends elections.

There is no rational way of choosing between these incommensurable

values but someone must have the last word. Some such as Dworkin

(1996), arguing that democracy is more than merely the wishes of the

majority, would entrust the courts with the power to overturn or

disregard legislation but others such as Waldron (1998) would allow

the legislature the last word on the ground that the courts are no better

qualified to decide these matters than is Parliament (see Chapter 18).

As we saw in Chapter 5, Allan (2001) argues that it is inconsistent

with the political assumptions of a liberal society on which the rule of

law is based that the legislature, or indeed any part of the government

should be all powerful. Allan claims that, in the common law tradition,

the courts have the duty to protect the fundamental values of the

society. He does not challenge parliamentary supremacy directly but

pushes the courts’ power of interpretation to the extreme. Relying

on the fact that the court is concerned not with the statute generally but

with its application to the individual case, Allan suggests that the court

can legitimately hold that a statute which appears to be grossly unjust

in the particular context does not apply to the particular case. This

approach could be reconciled with parliamentary supremacy on the

basis that Parliament cannot foresee every implication of the laws it

makes and can be assumed to respect the rule of law. In Cooper v.

Wandsworth Board of Works (1863) Byles J put the matter more

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Parliamentary Supremacy

strongly when he said that ‘the justice of the common law will sup-

ply the omission of the legislature’.

Allan’s approach might be regarded as a fiction. For example could

the court defy the normal understandings of language and logic to

disapply a statute which said that a decision of an official could not

be challenged in the courts on any grounds whatsoever including

jurisdictional grounds (e.g. Regulation of Investigatory Powers Act

2000 s. 67 (8))). Indeed, it has been said that ‘whoever hath an absolute

authority to interpret any written or spoken laws, it is he who is truly

the lawgiver and not the person who just spoke or wrote them’ (Bishop

Hoadley’s sermon preached before the king, 1717).

As a matter of logic and practice, either the court or Parliament

could be the ultimate guardian of fundamental values. There is no

necessary connection between a set of laws and the question of how

disputes rising out of them should be settled. The matter is one of

political preference and the moral and practical advantages of different

kinds of dispute mechanism. For example Locke, even though he

rejected unlimited sovereignty, would give the last word to the legis-

lature subject to a right of rebellion, and there is still controversy in the

USA as to whether the Supreme Court in Marbury v. Madison (1803)

was right to hold that a written constitution entitles the courts to rule

upon compliance with it.

The judges themselves are equivocal. Some judges have spoken of

‘twin sovereignties’ between Parliament and the courts, Parliament

being supreme in making the law, the court in interpreting it (see e.g. X

v Morgan Grampian Publishers Ltd [1991] 1 AC1, 48) while others have

asserted the supremacy of Parliament over the common law. In R v.

Lord Chancellor’s Department ex parte Witham (1993), one of the most

influential protagonists of the common law, Sir John Laws, on the one

hand suggested that the supremacy of Parliament was ‘accorded’ to it

by the courts but on the other hand emphasised that, although very

clear statutory language is required to override a fundamental right,

ultimately Parliament could do so. There are also extra-judicial state-

ments by judges suggesting that parliamentary supremacy may be

conditional on compliance with fundamental values (see Woolf, 1995;

Sedley, 1995a and in Nolan, 1997, p. 26; Laws, 1993, 1995; Cook, 1988

but see Irvine, 1996; Steyn, 1997).

6.7 Conclusion

The doctrine of parliamentary supremacy rests on frail founda-

tions. Parliamentary supremacy was a historical response to political

140 General Principles of Constitutional and Administrative Law

circumstances and it does not follow that the same response is appro-

priate today. The period during which Dicey promoted the doctrine

(before the First World War) was one of relative political stability and

economic prosperity for the UK. The people, or at least the majority,

were benefiting from the spoils of empire, and belief that Parliament

backed by consensus values could deliver stability and prosperity

was still plausible. Popular revolution as experienced elsewhere had

been staved off by cautious reforms. Latterly, different forces, both

domestic and international, have arisen which have made parliamen-

tary sovereignty appear parochial, politically unreal and intellectually

threadbare. These forces include the global economy, devolution,

membership of the European Union and other international obliga-

tions, and the increasing powers of the executive over Parliament.

There is no longer a political consensus that Parliament should be

legally unlimited and no compelling legal reason why it should be.