What is Parliament? The Changing Concept of Parliamentary Sovereignty
| Published date | 01 October 1954 |
| Date | 01 October 1954 |
| Author | Geoffrey Marshall |
| DOI | 10.1111/j.1467-9248.1954.tb01091.x |
| Subject Matter | Article |
WHAT IS PARLIAMENT?
THE CHANGING CONCEPT
OF
PARLIAMENTARY SOVEREIGNTY
GEOFFREY
MARSHALL
University
of
Glasgow
Though it
is
a received maxim
in
civil science that the supreme legislature
cannot be bound; yet an implied exception must be understood, viz. that it is
restrained from subverting the foundation on which it stands.
(SHIPPEN,
Com-
mons Debate on the Septennial
Bill,
April 1716.)
The bald statement that Parliament is sovereign does not end the matter; for..
.
the really
vital
question remains: ‘What
is
Parliament?’
@.
V.
COWEN,
Porlia-
mentary Sovereignty and the Entrenched Sections
of
the South Africa Act,
195
1
.)
I
THE
sovereignty of Parliament is not a matter which is often asserted or
disputed in British courts of law. It has even been remarked by constitu-
tional lawyers as
‘a
curious fact that no direct authority in the shape of
decided cases can be adduced in support of the legislative omnipotence
of
Parliament. For almost three centuries it has been universally acknow-
ledged, and no doubt the only reason why during all that period it
has
never been called into question
in
a
court
of
law is that no one has ever
thought it worth while to dispute it.’l
On two occasions lately, however, issues have arisen for decision which
demanded specific judicial consideration
of
the doctrine
of
legislative
supremacy as claimed by the Parliament of the United Kingdom. The cases
are curiously linked, and it is worthawhile fitting some of the arguments
which they have thrown up into the context of certain recent changes in the
structure
of
the debate on legal sovereignty.
On 30 July 1953
a
Declaratory Order was sought in the Inner House of
the Court of Session in Edinburgh seeking to establish that the Proclama-
tion of Her Majesty as Elizabeth
I1
involved
a
contravention
of
Article One
Stephen’s
Commentaries on the
Laws
of
England
(21st
ed.,
1950,
vol.
iii,
p.
288).
Polltlcal
Studies,
Vol.
11.
No.
3
(1954,
193-209).
5540.2.3
0
194
WHAT
IS
PARLIAMENT?
of
the Treaty of Union.’
As
against a contention of the Lord Advocate that
the assumption
of
the title was expressly authorized by the Royal Titles
Act, 1953, which as an Act of Parliament could abrogate Article One, or
any article,
of
the Act
of
Union, it was argued for the Petitioners that Par-
liament was not sovereign in the sense that it could abrogate a fundamental
article
of
the Treaty of Union. Article One being
a
fundamental condition
of
Union, it was
ultra
vires
9f
the Parliament of the United Kingdom to
amend that article or to pass legislation contradictory of its provisions. The
Parliament of the United Kingdom which came into being on
1
May 1707
was, it was contended, created by the Treaty
of
Union which contained
articles limiting its powers
in
certain respects. The Scottish Parliament
prior to 1707 had not been sovereign, for underlying the constitutional law
of Scotland was the belief that the community was sovereign. That Scottish
Parliament could not therefore convey
to
the Parliament
of
the United
Kingdom a sovereignty which it never
possessed.
Article
XVIII
of the Act
of
Union intended that after 1707 the public law
of
the
two
countries would
be assimilated, but
only
by
Acts of Parliament which were not inconsistent
with the original treaty.
If
the English Parliament was sovereign prior to
1707, it was no longer
so
thereafter, as it then became subject to the funda-
mental articles
of
the treaty. These were ‘entrenched clauses’
similar
to
those in the South Africa Act, 1909. which the South African Supreme
Court had recently held could not be abrogated.2
The Declaratory Order sought was refused? but the Lord President
(Lord Cooper), though holding the action to
be
incompetent, made
a
number
of
observations on the doctrine of legislative supremacy in the
United Kingdom which are of considerable theoretical interest. They are
probably unique as an example
of
judicial dissent from the view that Par-
liament’has undoubted power to abrogate those articles
in
the Act
of
Union
(and in the Act
of
Union between Great Britain and Ireland, 1800) which
purport to
be
binding
‘in
all
time coming’?
The principle
of
the unlimited sovereignty
of
Parliament [said Lord
Cooper]
is
a distinctively English principle which has
no
counterpart in
Scottish
constitu-
tional law.
It
derives
its
origin
from
Coke
and
Blackstone.
and
was widely
’
MacCormick
&
Ant.
v.
Lord Advocate (Scottish
Law
Times Reports,
1953,
Pts.
414,
pp. 255 et
seq.).
’
Article One, it was held, did not
bear
upon the adoption of the Royal title.
‘
Dicey,
Low
of
the Constitution
(9th
4.). pp.
65-66.
Cf. p. 145, ‘Should the Dentists Act,
1878, unfortunately contravene the
terms
of
the Act of Union, the Act
of
Union would
be
pro
tanto
repealed.’
Sir
Ivor Jennings,
it
will
be
remembered, expressed doubts as to the con-
clusiveness
of
the historical
precedents
in his
Law
and the Constitution
(3rd ed., pp.
146-7);
cf. Jennings and
Young,
Constitutional
Laws
of
the Commonweulth
(1952):
‘.
.
.
Nor
is the
proposition [i.e. as
to
the repeal of ‘self-limiting’ laws] proved by the fact that provisions
of
the Acts of Union with Scotland and Ireland which some lawyers (not judges acting as such)
have regarded as intended
to
be
permanent, have in fact
been
repealed. Historical prece-
dents, even
if
actually in point. are not legal precedents’
(p.
124).
pp. 259,260.
To continue reading
Request your trial