Introduction to the Study of the Law of the Constitution

Chapter 1: The Nature of Parliamentary Sovereignty

Law_001-050.indd 3 1/27/12 1:07 PM Aim of chapter. Nature of Parliamentary Sovereignty . Chapter! mE NATURE OF PARLIAMENTARY SOVEREIGNTY The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions. My aim in this chapter is, in the first place, to explain the nature of Parliamentary sovereignty and to show that its existence is a legal fact, fully recognised by the law of England; in the next place, to prove that none of the alleged legal limitations on the sovereignty of Parliament have any existence; and, lastly, to state and meet certain speculative difficulties which hinder the ready admission of the doctrine that Parliament is, under the British constitution, an absolutely sovereign legislature. NATURE OF PARLIAMENTARYSOVEREIGNTY Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the "King in Parliament," and constitute Parliament.1 The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of 1 Conf. Blackstone, Commentaries, i. p. 153. CHAPTER 1 3 Law_001-050.indd 4 1/27/12 1:07 PM Unlimited legislative authority of Parliament . LAW OF THE CONSTITUTION England as having a right to override or set aside the legislation of Parliament. A law may, for our present purpose, be defined as "any rule which will be enforced by the Courts." The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus stated: There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament. Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation. This is not the place for entering into any details as to the nature of judiciallegislation;2 the matter is mentioned here only in order to remove an obvious difficulty which might present itself to some students. It will be necessary in the course of these lectures to say a good deal more about Parliamentary sovereignty, but for the present the above rough description of its nature may suffice. The important thing is to make clear that the doctrine of Parliamentary sovereignty is, both on its positive and on its negative side, fully recognised by the law of England. Unlimited Legislative Authority ofParliament The classical passage on this subject is the following extract from Blackstone's Commentaries:Sir Edward Coke,3 says: The power and jurisdiction of Parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. 2 The reader who wishes for fuller information on the nahtre of judge-made law will find what he wants in Dicey's Law and Public Opinion in England, App. Note iv. p. 481, and in Sir Frederick Pollock's Essays in Jurisprudence and Ethics, p. 237. 3 Fourth Institute, p. 36. PARTI 4 Law_001-050.indd 5 1/27/12 1:07 PM Historical examples of Parliamentary sovereignty . THE NATURE OF PARLIAMENTARY SOVEREIGNTY And of this high court, he adds, it may be truly said, "Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima." It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere , is entrusted by the constitution of these kingdoms. All...