Richard Kay

Document Type

Article

Disciplines

Comparative and Foreign Law

Abstract

The doctrine of parliamentary sovereignty in the United Kingdom may be alive but it is not exactly well. Over the last 40 years, the notion that Parliament may make binding law on any question whatsoever has been buffeted by various political and judicial developments and attacked by numerous academic commentators.' Looking back, the 1950s might seem a sort of golden age of the doctrine. But the first line of Sir William Wade's great article, 'The Basis of Legal Sovereignty', published in 1955, declared that a recent judgment had 'turned the thoughts of many lawyers to the subject of legal sovereignty'. Dicey's 'classic exposition', he said, 'is now widely controverted'. Wade's immediate focus was the judgment of the Appellate Division of the Supreme Court of South Africa in Harris v Minister of the Interior, issued in March 1952. That court held that the Parliament of South Africa could not, by ordinary legislation, change the law on the registration of 'non-European' voters in the Cape Province. That legislation was part of an unrelenting attempt to reduce the electoral influence of non-whites. The Appellate Division held that this kind of law could only be enacted by the special procedure explicitly prescribed for such measures in the South Africa Act 1909, the United Kingdom statute that operated as South Africa's constitution. This procedure called for a two-thirds majority vote of the two houses of Parliament sitting together. Further trouble for parliamentary sovereignty was signalled the following year, in MacCormick v Lord Advocate. The Scottish Court of Session had rejected a challenge to the legal effectiveness of the Royal Titles Act 1953, that had relied on the statute's claimed inconsistency with the 1707 Treaty of Union between Scotland and England. While agreeing that the petition should be rejected, Lord President Cooper, indulging in an extended dictum, doubted that 'the Parliament of Great Britain should be "absolutely sovereign" in the sense that that Parliament should be free to alter the Treaty at will'. Wade quoted from Cooper's judgment on the first page of his article. He went on to list several academic commentators who had predicted that the Diceyan 'bedrock will turn out to be quicksand'. So the validity of Parliament's claim to the right to 'make or unmake any law whatever' was indeed in the air in 1955.' The burden of Wade's exposition was to rehabilitate the rule and, at the same time, to provide a new explanation for it.

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