1.3 Parliamentary Supremacy

The Source of Parliamentary Sovereignty, according to Dicey

“legal fact” – Parliament’s power exists as a fundamental rule of the legal system.

o   Parliament can make and unmake any law.

o   Parliament cannot be overridden.

o   Parliament cannot bind its successors, not can it be bound by its predecessors.

3 Elements of the Classical Doctrine of Parliamentary Supremacy

·       Parliament cannot bind its successors (Blackstone)

·       Parliament cannot abandon its sovereignty (Laws LJ in Thoburn)

·       Implied Repeal (Vauxhall Estates v Liverpool Corporation [1932])

Hart and Wade’s source for PS

“ultimate political fact” – judges recognise Parliament’s authority and this recognition is a political reality

The source of PS, according to Kelsen

“basic norm” – fundamental rule from which all other rules derive validity

Democratic Theory

·       The people as constituent power hold ultimate authority

·       Constitutional change requires popular consent through referendums

Common Law Theory

Judges created parliamentary sovereignty

Impact of Decolonisation

Statute of Westminster 1931 removed limitations on the competence of dominion Parliaments. In theory this could be repealed but in practice this would not happen.

Lady Hale in Jackson

• If Parliament can redefine itself downwards, it can also redefine itself upwards to impose manner and form limitations.

• Courts will be suspicious of any attempts by governments to subvert the rule of law.

Lord Steyn in Jackson

• Parliament can redefine itself.

• Judges created Parliamentary Supremacy, they can abolish it too.

• BUT Parliamentary Supremacy is still the constitution’s “general principle”

Lord Hope in Jackson

• the rule of law is more important than Parliamentary Supremacy.

• Parliamentary sovereignty is no longer, if it ever was, absolute.

How do the devolution settlements challenge Parliamentary Sovereignty

devolved nations cannot leave union without referendum

How has HRA challenged PS, according to Thoburn?

implied repeal does not apply

Steyn on Dicey’s view

The classic account given by Dicey now seen as out of place in the modern UK

Relationship between Rule of Law and PS, according to Lady Hale

Rule of law may trump sovereignty

Stable Elements of PS

·       Courts cannot strike down legislation

·       Parliament can legislate on anything

·       No written constitution limits Parliamentary competence

Evolving elements of PS

·       Manner and form possible, especially with Parliament Acts

·       Constitutional statutes protected from implies repeal (Thoburn)

·       Impossible to ignore referendum results

·       Parliament cannot fully oust judicial review (Privacy International)