The "Manner and Form" Theory of Parliamentary Sovereignty

Abstract

Michael Gordon has defended the popular “manner and form” theory of parliamentary sovereignty, claiming that it provides the best explanation of recent constitutional developmentsin the UK and is normatively superiorto rival theories. I argue that the manner and form theory is inconsistent with parliamentary sovereignty. I accept that parliamentary sovereignty is consistent with mandatory requirements for legislating that are purely procedural or formal, in that they do not diminish Parliament’s substantive power to change the content of the law however and whenever it chooses. But it is not consistent with some procedural requirements that Gordon and others include within the category of “manner and form”. The clearest example is a self-entrenched referendum requirement, forbidding Parliament from amending or repealing a particular law without the explicit approval of a majority of electors. By diminishing Parliament’ssubstantive power to change the law, this would plainly be inconsistent with comprehensive, continuing parliamentary sovereignty. It does not follow that self-entrenched referendum requirements are undesirable. But if one were enacted and accepted as binding by senior legal officials, including the courts, the UK Constitution would have fundamentally changed from one based on comprehensive parliamentary sovereignty to one based on legislative sovereignty being occasionally shared by Parliament and the electorate. I also argue that requirements for super-majorities within the Houses of Parliament should be regarded as inconsistent with parliamentary sovereignty. As for explaining recent constitutional developments in the UK, my theory of “pure procedure or form” is equal to the task, as well as superior in other respects both theoretical and practical. The article includes discussion of the desirability of the courts determining whether or not requirements governing procedure or form are legally binding, and of the legal consequences of their non-entrenchment.