Constitutional Supremacy and Parliamentary Sovereignty

No person or body has the right to override or set aside its legislation. British Railways Board v. Pickin, [1974] AC 765, is the modern authority.

No Parliament may bind its successors. From which follows the doctrine of implied repeal: a later Act prevails over an earlier inconsistent one.

The three modern qualifications

One: constitutional statutes. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), holds that there are classes of legislative provision which cannot be repealed by mere implication, and that the European Communities Act 1972 was a constitutional statute of that class. That qualifies the third limb: express repeal is still effective, implied repeal is not.

Two: the Human Rights Act. Section 3 requires legislation to be read compatibly with the Convention rights so far as it is possible to do so, and Ghaidan v. Godin-Mendoza, [2004] UKHL 30, shows how far that can go. Section 4 permits a declaration of incompatibility, which section 4(6) provides does not affect the validity, continuing operation or enforcement of the provision. That qualifies the second limb in practice and not in law.

Three: judicial doubt. In Jackson v. Attorney General, [2005] UKHL 56, several of their Lordships observed, in passages not necessary to the decision, that the sovereignty of Parliament might not be absolute in every conceivable case. That is obiter and it is the furthest any British judge has gone.

Against those three sits the strongest recent evidence for the doctrine: the statute database records sections 2, 3 and 6 to 9 of the Human Rights Act 1998 as excluded, from 25 April 2024, for the subject matter of the Safety of Rwanda (Asylum and Immigration) Act 2024. A Parliament that can switch off the interpretive obligation for a subject is a sovereign Parliament.

A worked example

Parliament enacts that a named class of persons shall not be entitled to bring proceedings in any court.

India. The Act offends articles 14 and 21 and is void under article 13(2), and access to justice is a basic feature. Article 32 gives the person a direct remedy in the Supreme Court.

Canada. Section 52(1) makes it of no force or effect for inconsistency with section 15 and section 24(1) of the Charter, unless the legislature invokes the section 33 override, which reaches section 15.

United Kingdom. The Act is valid. A court will strain to read it compatibly under section 3 of the Human Rights Act, and if that is impossible will declare an incompatibility under section 4 and apply the Act.

The cases

Facts. British Railways Board v. Pickin, [1974] AC 765, arose from an allegation that a private Act had been obtained by fraudulently misleading Parliament, pleaded to resist the operation of a section of the Act.

Held, by the House of Lords. The plea was struck out. A litigant is not entitled to go behind the Act to show that a section should not be enforced, nor to examine proceedings in Parliament to show that the promoters caused him loss by misleading it.

Why it matters here. It is the clearest modern statement that no British court may refuse effect to an Act of Parliament on any ground.

Facts. I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, concerned whether laws inserted in the Ninth Schedule after 24 April 1973 were absolutely protected by article 31B.

Held, by nine judges. They are open to challenge on the ground that they damage or destroy the basic structure, the test being the effect of the law on Part III rights read with the basic structure doctrine.

Why it matters here. It shows Indian constitutional supremacy operating even against a provision expressly designed to exclude it, which is the opposite of the British position under Pickin.

Distinctions

What beginners get wrong

"The Human Rights Act made the British constitution supreme." It did not. Section 4(6) says in terms that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision.

"Article 13 is the only source of Indian judicial review." It is the source for Part III. Review for legislative competence rests on articles 245 and 246, and review of amendments on the basic structure doctrine.

"Parliamentary sovereignty means Parliament is unlimited in practice." It means it is legally unlimited. Politically it is constrained by elections, by devolution, by international obligations and by the practical costs of legislating against the courts.

Limits and criticism

Constitutional supremacy transfers power to judges, which is the countermajoritarian objection.

Parliamentary sovereignty leaves minorities unprotected against a determined majority, and the Safety of Rwanda Act 2024 is the current illustration.

Neither doctrine describes practice on its own. India's supremacy failed between 1975 and 1977; British sovereignty has been qualified by devolution, by the Human Rights Act and by Thoburn without ever being abandoned.

Quick revision

1. Article 13(1) and (2) of the Indian Constitution; article 12's wide definition of the State; article 13(3)(a)'s wide definition of law.
2. Section 52(1) of the Constitution Act 1982; Article VI of the United States Constitution.
3. Dicey's three limbs: any law whatever; no body may override; no Parliament binds its successors.
4. British Railways Board v. Pickin, [1974] AC 765: no going behind an Act.
5. Qualification one: constitutional statutes, Thoburn, [2002] EWHC 195 (Admin).
6. Qualification two: sections 3 and 4 of the Human Rights Act 1998, with section 4(6).
7. Qualification three: obiter doubts in Jackson, [2005] UKHL 56. Against them: the exclusion of Human Rights Act sections by the Safety of Rwanda Act 2024.

Test yourself

1. State Dicey's three limbs and give the modern qualification of each. Parliament may make or unmake any law whatever: qualified politically by devolution and by international obligation, not legally. No person or body may override its legislation: qualified in practice by section 3 of the Human Rights Act 1998, though section 4(6) preserves the statute's effect. No Parliament may bind its successors: qualified by Thoburn, which holds constitutional statutes immune from implied repeal though not from express repeal.

2. Set out the Indian provisions that establish constitutional supremacy. Article 13(1) voids pre-Constitution laws inconsistent with Part III to the extent of the inconsistency; article 13(2) forbids the State to make a law taking away or abridging Part III rights and voids any such law to the extent of the contravention; article 12 defines the State widely, to include Parliament, the State legislatures, and all local or other authorities within India or under the control of the Government of India; and article 13(3)(a) defines law widely enough to include subordinate legislation, custom and usage.

3. Does a declaration of incompatibility change the law? No. Section 4(6) of the Human Rights Act 1998 provides that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, and is not binding on the parties. What changes the law is Parliament, or a minister by remedial order under section 10, and in A v. Secretary of State for the Home Department, [2004] UKHL 56, Parliament replaced the scheme within months.

4. Why is I.R. Coelho the opposite of Pickin? Because in Coelho the Supreme Court of India held that laws placed in the Ninth Schedule after 24 April 1973, a device enacted precisely to exclude judicial scrutiny, remain open to challenge for damage to the basic structure; in Pickin the House of Lords held that a litigant may not go behind an Act at all, even to allege that Parliament was fraudulently misled into passing it.