Revisiting the ‘Manner and Form’ Theory of Parliamentary Sovereignty

Abstract

Perhaps the most long-standing debate concerning English Parliamentary sovereignty is whether Parliament’s legislative authority can be subject to certain formal or procedural requirements that must be fulfilled before a purported statute concerned by such requirements can be recognised as a statute or be enforceable, namely “manner and form” conditions. This article makes the argument that English Parliamentary sovereignty is reconcilable with the manner and form theory. It begins with a brief overview of the “traditional view” of Parliamentary sovereignty followed by an explanation of the manner and form theory. After setting out these two competing views of Parliamentary sovereignty, the argument will proceed along three propositions. Firstly, from a comparative perspective, the logical implications of the “Commonwealth cases” are that manner and form conditions would bind a legislative body which possesses the same characteristics as the English Parliament. Thus, these cases should be considered as persuasive. Secondly, in R. (Jackson) v. A.G. [2006] 1 A.C. 262 (H.L.), the majority of the Law Lords explicitly or implicitly accepted the manner and form theory. Such an acceptance would derive from their holding that, following the enactment of the Parliament Act 1911, Parliament has successfully redefined itself or created a new method of enacting legislation. And thirdly, the attitudes of that other key constitutional actor, namely Parliament, and of “senior officials” of the legislative branch suggest that the legislative branch would accept the manner and form theory.

This content has been updated on 4 July 2017 at 18 h 19 min.