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1. Identify the main points of the orthodox theory of Parliamentary sovereignty.
The orthodox theory, as espoused by Dicey, is represented by three points:1
- (1) Parliament can make and unmake any law whatsoever, on any subject-matter.
- (2) No body, including a court of law, can question the validity of Parliament’s Acts.
- (3) Parliament cannot bind its successors or be bound by its predecessors.
2. Explain the historic importance of the Bill of Rights in terms of parliamentary sovereignty.
During the 17th century, there were tensions between the Crown and Parliament, with both institutions seeking to establish themselves as the seat of sovereign power. The courts were often called upon to decide the validity of laws passed by the Crown and by Parliament. The Bill of Rights is significant because during the Glorious Revolution, William and Mary of Orange were invited to take the throne of England (from Mary’s father, James II) on condition that they accept what came to be set out in the Bill of Rights. This document had the effect of ensuring Parliament’s superiority over the Crown, thereby establishing Parliament as the sovereign power.
3. How does the doctrine of implied repeal ensure that Parliament is not bound by its predecessors and does not bind its successors?
The doctrine of implied repeal is a construct of the courts. When faced with two conflicting or contradicting pieces of legislation on the same point or issue, the courts are instructed by this doctrine to take the more recent Act as the accepted law. This is said to impliedly repeal the earlier Act.
4. Explain the rules relating to ‘manner and form’ provisions.
Manner and form provisions are those that purport to offer a degree of procedural entrenchment to a given piece of legislation. They do this by effectively binding future Parliaments as to the manner and form in which such legislation can be repealed. Examples of such provisions might include the requirement that a referendum be held before a particular law is repealed, or a requirement that repealing legislation be approved by two-thirds of the legislative chamber, rather than the simple majority. There are no examples of such laws in the UK but Chapter 4 discusses the case of Attorney-General for New South Wales v Trethowan, which considers similar provisions in the dominion constitutions.
5. What is the Enrolled Bill Rule?
This is a rule, evident from the case of Edinburgh and Dalkeith Railway v Wauchope, which states that once an Act of Parliament has been passed by the House of Commons, the House of Lords, and has received Royal Assent, it is to be regarded by the courts as a valid piece of legislation. They have no power to declare Acts invalid, with Parliament reserving the power to alter laws or rectify issues with legislation.
6. Explain the significance of the judgment in Dr Bonham’s Case.
Dr Bonham’s Case pre-dates the Bill of Rights 1688 and, therefore, the effect of orthodox parliamentary sovereignty. These limitations notwithstanding, the case was notable for the manner in which it explained that ‘when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void’.2
7. How did Wade view the sovereignty of Parliament? What, according to Wade, is needed for there to be a change in this allocation of sovereign power?
Wade viewed parliamentary sovereignty as the ultimate political fact of our constitution, based on the political settlement that had been established by the Glorious Revolution and the Bill of Rights 1688. The consequence of this view is that Parliament cannot act alone to alter the nature of its sovereignty. Only through a constitutional revolution – the courts changing their allegiance to an alternative sovereign power – can this be changed.
1 See: Av Dicey, Introduction to the Study of the Law of the Constitution (JWF Allison ed, rst published 1885, OUP 2013)
2 (1609) 8 Co Rep 114