5. Parliamentary and constitutional supremacy

How Parliament won supremacy in England

Taxes need consent: By the fourteenth century it was settled that the King could not raise direct taxes without the consent of Parliament. Control of money gave Parliament power over law-making.

Tudor and Stuart struggles: In the seventeenth century Crown and Parliament fought over whether the King could make law alone. In the Case of Proclamations (1610) the judges held that the King cannot change the law by proclamation. In the Ship Money case, R v Hampden (1637), the court upheld the King's power to levy ship money, a decision Parliament later reversed.

The Bill of Rights 1689: After 1688 the Bill of Rights confirmed that Parliament was superior to the Crown. By the nineteenth century parliamentary supremacy was the orthodox view.

The two parts of the doctrine

Unlimited law-making power: Parliament can make any law. Sir Ivor Jennings said Parliament could make it an offence for Frenchmen to smoke in the streets of Paris. English courts would apply it, though French courts would not.

No body can question an Act: The courts will not hold an Act invalid. A statute prevails over other kinds of law. Parliament cannot bind its successors.

The enrolled Act rule: In Edinburgh and Dalkeith Railway v Wauchope (1842) and Lee v Bude and Torrington Junction Railway (1871) the courts refused to look behind an Act to see how it was passed. In British Railways Board v Pickin (1974) the House of Lords confirmed this.

Statute beats treaty: In Cheney v Conn (1968) a taxpayer argued that his tax was being spent on nuclear weapons contrary to international law. The court held that what a statute enacts cannot be unlawful.

Legal power and convention: In Madzimbamuto v Lardner-Burke (1969) the Privy Council said that many things are called unconstitutional because there are strong moral or political reasons against them, but if Parliament does them the courts will not hold the Act invalid. In Manuel v Attorney-General (1983) the court would not look behind an Act that stated Canada had requested and consented to it.

Limits debated: In R (Jackson) v Attorney-General (2005) some Law Lords suggested, without deciding, that there may be limits even to the power of the United Kingdom Parliament.

Constitutional supremacy elsewhere

The United States: In Marbury v Madison (1803) the Supreme Court held it could declare an Act of Congress void if it conflicts with the Constitution. This is the model of constitutional supremacy.

Sierra Leone

Legislative power in Parliament: Section 73 vests legislative power in Parliament, which is the supreme legislative body for Sierra Leone.

But the Constitution is supreme: Section 171(15) says the Constitution is the supreme law and any inconsistent law is void to the extent of the inconsistency.

Judicial review of Acts: Section 124(1)(b) lets the Supreme Court decide whether an enactment was made in excess of power, and section 127 lets any person ask the Supreme Court for a declaration that an enactment is inconsistent with the Constitution.

Entrenchment: The Constitution can only be amended by special majorities, and the entrenched provisions also need a referendum (section 108). Parliament cannot change them by ordinary Act.