Law Sessions With Jennifer Housen’s Podcast

Parliamentary Power: The Manner and Form Debate Explained

Subscriber Episode • • Jennifer Housen • Season 4 • Episode 3

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This session explores the concept of manner and form within the principle of parliamentary sovereignty, examining whether UK legislation can be entrenched against future changes. We delve into theoretical perspectives, Commonwealth case law, and modern challenges to Dicey's traditional doctrine of parliamentary supremacy.

• Entrenchment describes legal devices inserted into Acts of Parliament to make future amendment or repeal more difficult
• The UK lacks true entrenchment possibilities under current constitutional arrangements because Parliament cannot bind its successors
• Human Rights Act represents "soft form entrenchment" as it seeks to bind both previous and successive parliaments
• Commonwealth cases like AG for NSW v Trethowan demonstrate entrenchment in jurisdictions with written constitutions
• Statute of Westminster Section 4 provides interesting test case for Parliament limiting its own power over dominions
• Parliamentary sovereignty has faced erosion through devolution, EU membership, and human rights legislation
• Theory remains that Parliament retains power to repeal previous acts, but practical limitations have emerged


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to this third segment in this public law law session on parliamentary sovereignty. Immediately before the break, of course, we looked at Dice's exposition in respect of parliamentary sovereignty, we looked at the three-part criteria and we looked at how this has basically panned out in recent times. What I want us to consider during this segment in particular is to look at this whole concept of manner and form, which falls under this principle of parliamentary sovereignty. And the idea of manner and form is whether or not the UK is in a position where can a particular piece of legislation or can a particular law be such that it needs a specific way to be changed? Well, based on what we've said till now, the small point is that if you consider a piece of legislation, by and large, a subsequent statute will repeal it expressly, or indeed it will repeal it impliedly. The concept, because when you look at jurisdictions which do in fact have a codified constitution, it may very well be that there are provisions which are entrenched. So how does this entrenchment work and what are the implications for the UK? So what is it when we talk about entrenchment?

Speaker 1:

Entrenchment is the term which is used to describe some sort of legalistic device which is inserted into an Act of Parliament in order to make it more difficult, or sometimes impossible, for a future Parliament to amend or repeal the Act. Now the question is is it possible to entrench an Act of Parliament on the present constitutional arrangements in the UK? Well, the question rests wholly on the issue of how far, if at all, parliament can and might limit its legislative power. If, as been illustrated in the Parliament Acts 1911 and 1949, parliament can make the passage of legislation easier, does it not follow that it can make it more difficult? Now there are some commentators who suggest that Parliament could redefine itself so as to preclude itself constitutionally from certain legislation. Now, while this sounds logical, it may also be seen as a flawed view, since a traditional theory would ensure that future parliaments would not be bound. Dicey seems to argue that it is perhaps a ridiculous theory that Parliament could not, by its own actions, divest itself of power. The short point, of course, is no. When one looks at entrenchment, there's no way that you can say that this Act of Parliament is the law and it remains like this.

Speaker 1:

Now I will touch on. As I say, when we come to look at the Human Rights Act, for example, you do see what is considered a soft form entrenchment because in Section 3 of that Act it actually says something along the lines of any legislation prior to the HRA and subsequent to the HRA must of course comply with the HRA. So it is seeking to bind successive parliaments, as well as previous parliaments, in respect of acts being passed should comply with the HRA. But the fact of the matter is, the HRA itself is only but an ordinary piece of legislation and therefore that's why we see it gets the term soft form entrenchment. It's as if it's seeking to bind.

Speaker 1:

But let's look at how this has panned out in other Commonwealth jurisdictions. We start off with the case of Attorney General for New South Wales and Trethowen. It's a 1932 case which highlights the issue of entrenchment in the case of a former UK colony which had a written constitution. Now this constitution was considered to be a higher form of law and therefore amendments to the constitution had to be carried out in accordance with the procedure which was set out in the constitutional document and, of course, based on any amendments that were made from time to time. Now, perhaps this case is only illustrative of the fact that in order to subject ordinary acts of the UK Parliament to a higher form of law would require the UK to adopt a written constitution because, frankly, the current way it is now, there is no higher form of law. Now traditionalists consider this case to be irrelevant, arguing that the New South Wales legislature was subordinate to the constitution, unlike ours. So arguably, it would seem that Attorney General for New South Wales and Trithowan has very little implications for the UK.

Speaker 1:

But what you get from theorists who are somewhat more self-embracing is that at common law there's a rule that legislation may be enacted only in such manner and form as prescribed is the law, and a measure passed in the normal way, ignoring this procedure, has not been passed in the manner and form prescribed by the law and thus is not valid. However, it is highly doubted that the UK courts would be prepared to investigate whether or not procedures have been complied with, because when one looks at the framework of the UK, it simply appears untenable. But it is a good argument, because when what you look from persons who advance this theory is that if there is an Act of Parliament, so if it is that an Act of Parliament is the law, and if an Act of Parliament says that this Act cannot be repealed, then isn't this current Act, the law, and if you seek to repeal it you're going against the law. Strong arguments, but arguably not likely to hold water.

Speaker 1:

Now, efforts of Parliament to divest itself of power are seen in the case of, say, the independence of Commonwealth countries. We have seen some concerns where cases have come before the court. Now, section 4 of the Statute of Westminster provides that no UK Act extends over a dominion, which is where you have the first stage of independence of a nation seeking independence. So section four of the statute of Westminster says that no UK Act extends over dominion unless it is expressly declared in the act that the dominion has requested and agreed. This is important Requested and agreed to it. Now there are two problems which are associated with this. The first is could Parliament ignore this and directly legislate without its request? So, could the UK Parliament legislate without the request of the Dominion? What about the traditional view that a future Parliament can be bound? Well, let's look at the cases In the case of Bribery Commission and Ranas Singh, which is a Privy Council case which held that the legislature of Ceylon, now Sri Lanka, was bound by the terms of the constitution of the country and the court would not uphold legislation that had not been Harris and Minister for the Interior.

Speaker 1:

However, the High Court, in another case, manuel and the AG, lord Justice Slade made an interesting obiter statement with regard to Section 4 of the Statute of Westminster. He said that all Section 4 required was that a statement which I had said before was important. He said all that was required was that a statement which I'd said before was important, important. He said all that was required was that a statement that the dominion had requested and consented to the act be contained in the act. However, he said that if section 4 had stated that the dominion must actually request on consent, then the courts would have been entitled to investigate to ensure that the Dominion had in fact done so. If it had not requested and consented, then the UK Parliament would not have had the power to legislate for this Dominion. Now, this is probably unsustainable and when the case was appealed to the Court of Appeal, the Court made no comment on this statement.

Speaker 1:

Well, to directly address the question, under the present constitutional arrangements it would not appear possible to entrench an Act of Parliament according to the traditional view of parliamentary sovereignty. However, this could perhaps be questioned, in particular with regard to the doctrine of implied repeal. In view of the constitutional impact on the UK following its membership of the EU. The question again does the traditional theory remains impregnable? Well, we have seen that in the late 20th and early 21st century the idea of parliamentary supremacy has undergone erosion in practice, albeit it stands fairly firm in theory, because the theory is that an act of parliament can always wipe out a previous act of parliament.

Speaker 1:

So there's always this uh view that, um, the european communities acts can be repealed, the Human Rights Act can be repealed. So when you look at the kind of erosion, the things that I would suggest are important are one, devolution of power to regional assemblies, and we see Scotland with the Scottish Parliament, wales and of course, the Welsh Assembly and Northern Ireland Now. Secondly, in connection with institutions of the European Union, in particular the Court of Justice of the EU, which asserts the power to exercise some judicial review over the UK. This again appears to be some erosion. And lastly, when one looks at the Human Rights Act, then the European Convention of Human Rights and its incorporation under the Human Rights Act also provide a basis for saying that the parliamentary sovereignty principle has by and large been eroded. Take a break, a very short break and when we return, we will conclude with looking at the impact that contemporary issues have had on parliamentary sovereignty, immediately after this short break.