Parliamentary Sovereignty: Muhammad Naimur Rahman Barrister-at-Law, Lincoln's Inn Lecturer, Eastern University

Parliamentary
Sovereignty
Muhammad Naimur Rahman
Barrister-at-Law, Lincoln’s Inn
Lecturer, Eastern University
Sovereignty and Law
 According to AV Dicey, the doctrine of
Parliamentary sovereignty is the corner stone
of the unwritten UK constitution.
 Sovereignty can be divided into two types:
◦ Political Sovereignty
◦ Legal Sovereignty
Sovereignty and Law
 Sovereignty can be divided into two types:
◦ Political Sovereignty - Political sovereignty lies with
the people, i.e. the electorate – Thomas Paine, John
Locke
◦ Legal Sovereignty - Legal sovereignty lies with the
Parliament
Legislative Sovereignty
 Jurisprudential View
◦ John Austin - laws are nothing more than the
commands of the sovereign
◦ HLA Hart - self-embracing sovereignty and
continuing sovereignty
 self-embracing sovereignty – permit the delimitation of
legislative power in the future – not the traditional view
 continuing sovereignty – AV Dicey advanced it.
A.V. Dicey’s analysis of sovereignty
 There are three elements to legal sovereignty:
◦ ‘Parliament can legislate on any subject-matter’
◦ ‘No Parliament can be bound by its predecessor nor
bind its successor’
◦ ‘Nobody – including a court of law – can challenge
the validity of an Act of Parliament’
‘Parliament can legislate on any
subject-matter’
 The power to legislate – Freedom to make any
kind of law
• “What the Parliament doth, no authority upon earth
can undo” – Blackstone’s Commentaries
Some examples of the UK
Parliament’s Wide-spread power:
◦ Descent of the Crown – Act of Settlement 1700
◦ Septennial Act 1716 – Parliament’s duration increased from 3 to 7 years
◦ Legislate extra-territorially – s.1 Aviation Security Act 1982 – hijacking
 Immaterial whether the overseas’ court would recognize it – Manuel v
Attorney-General (1982)
◦ Legislate retrospectively – War Damage Act 1965 overruled Burmah Oil
Company v Lord Advocate 1965
◦ Relinquish power by grants of independence – Nigeria Independence
Act 1960
◦ Legislate to alter its own powers – Parliament Acts 1911 and 1949
◦ Legislate conflicting with international law – Mortensen v Peters (1906);
Cheney v Conn (1968)
◦ Legislate against fundamental civil liberties – R v Jordan (1967)
◦ Salisity Stevens 1882 – ‘all blue-eyed babies be put to death’
◦ Ivor Jennings 1959 – ‘ban smoking in the streets of Paris’
‘No Parliament can be bound by its
predecessor nor bind its successor’
 Parliament cannot be bound.

 This is ensured through the doctrine of
implied repeal.
The Doctrine of Implied Repeal
 “Parliament’s hands cannot be tied.”
◦ Ellen Street Estates v Minister of Health (1934) –
Lord Maugham – it would be impossible to enact
that there shall be no implied repeal.
 Vauxhall Estates Ltd v Liverpool Corporation
(1932)
◦ Just an approach to statutory interpretation, not
essential to Parliamentary sovereignty, although
consistent.
Implied Repeal
 Implied Repeal makes entrenchment
impossible.
 Constitutional Statutes – Thoburn - just an
argument – never been considered

• TSR Alan – the idea that entrenchment cannot be
possible does not make any constitutional sense
anymore.
‘Nobody can challenge the validity of
an Act of Parliament’
◦ The manner in which sovereignty is upheld is
through judicial decisions.
◦ Pre-1688
 Courts could invalidate an Act if they conflicted with
the natural law – Dr. Bonham’s case (1610)
◦ Post-1688
 Dalkeith – Lord Campbell – enrolled bill rule
 Pickin v British Railway Board (1974) HL – Lord Reid
confirmed Lord Campbell
Enrolled Bill Rule
 Under this doctrine, once a bill passes a
legislative body and is signed into law, the
courts assume that all rules of procedure in
the enactment process were properly
followed.
 That is, "[i]f a legislative document is
authenticated in regular form by the

appropriate officials, the court treats that
document as properly adopted."
Enrolled Bill Rule
 The doctrine was adopted in The King v. Arundel. It
was based on the proposition that when an Act was
passed and assented to, it was affixed with the Great
Seal, the "effective legal act of enactment“. It was "a
regal act, and no official might dispute the king's
word."
 The enrolled bill rule was restated by Lord Campbell
in Edinburgh & Dalkeith Railway Co v Wauchope . In
that case it was complained that the passage of a
private bill was defective because proper notice had
not been given. The House of Lords rejected the
notion that the validity of an Act could be questioned.
Attacks on Parliamentary Sovereignty
 Grants of independence
◦ s.2 Canada Act 1982 – ‘no Act of the UK Parliament
passed after the Constitution Act 1982 comes into
force shall extend to Canada as part of its law’
◦ Blackburn v Attorney-General (1971) – Lord Denning –
legal theory must give way to practical politics.
◦ Freedom once given cannot be taken back.
◦ However, legally speaking, they can be revoked in the
eyes of UK courts
 Acts of Union with Scotland and Northern
Ireland – probably outside the courts’
jurisdiction

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Parliamentary

 Parliament cannot be bound.

argument – never been considered

authenticated in regular form by the

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