Manner and Form Theory – Procedural Limitation

1. Introduction

The Manner and Form Theory is an alternative understanding of parliamentary sovereignty. It is particularly associated with Sir Ivor Jennings and later constitutional scholars.

The basic idea is that Parliament may remain substantively sovereign while nevertheless prescribing certain procedural or formal requirements that must be followed when particular types of legislation are enacted.

In simple words:

Parliament may be able to make any law, but it may prescribe the manner and form in which certain future laws must be made.

For example, Parliament might provide that a particular type of Bill can become law only if:

• it receives a special majority;
• it is approved through a specified legislative procedure;
• a referendum is held;
• both Houses approve it in a particular manner; or
• specified procedural stages are completed.

The theory therefore distinguishes between substantive limitations and procedural limitations. The important constitutional question is whether a future Parliament is legally bound by such requirements. The UK position remains debated, although Jackson provides significant support for the possibility of Parliament altering the way in which legislation is enacted.

2. Meaning of "Manner and Form"

The two expressions have slightly different meanings.

Manner

“Manner” concerns the procedure or method through which legislation must be enacted.

For example:

• approval by both Houses;
• a particular number of readings;
• a special voting procedure;
• approval by another body.

Form

“Form” concerns the formal characteristics or legal form that legislation must possess to be valid.

Thus, a statute could theoretically require that future legislation concerning a particular constitutional subject must be enacted in a specified form.

3. Procedural Limitation

A procedural limitation does not necessarily prevent Parliament from making a particular law.

Instead, it regulates how Parliament must make that law.

Example

Suppose Parliament passes an Act stating:

“Any future Act abolishing this institution shall require approval by two-thirds of the House of Commons.”

Under the Manner and Form Theory, the future Parliament would still possess the power to abolish the institution. However, it would have to comply with the two-thirds majority requirement.

Therefore:

Substantive power remains → procedural requirements change.

This is the central distinction between the Manner and Form Theory and a theory of substantive entrenchment.

4. Relationship with Parliamentary Sovereignty

Traditional Diceyan parliamentary sovereignty says that Parliament can:

• make or unmake any law;
• legislate on any subject; and
• cannot normally bind its successors.

The Manner and Form Theory attempts to reconcile parliamentary sovereignty with some degree of procedural entrenchment.

According to this theory, Parliament does not surrender its substantive law-making power. It simply determines the conditions under which its legislative power must be exercised in particular circumstances.

The House of Commons Library describes the theory as allowing Parliament to impose procedural or formal requirements on future legislation without necessarily restricting Parliament's substantive law-making power.

5. Procedural Limitation vs Substantive Limitation

Example

Procedural:

“An Act changing this constitutional rule must receive a two-thirds majority.”

Substantive:

“Parliament shall never be permitted to abolish this constitutional rule.”

The first is a manner and form requirement; the second is a much stronger substantive limitation.

6. Historical Development

The theory is strongly associated with Sir Ivor Jennings, who challenged the simplistic idea that parliamentary sovereignty necessarily means that every future Parliament must be able to legislate in exactly the same way.

Jennings argued that Parliament could potentially alter the conditions under which it legislates, while remaining sovereign.

Later scholarship developed this idea further. Contemporary discussions distinguish between purely procedural requirements—which are more readily reconciled with parliamentary sovereignty—and requirements such as self-entrenched referendums or supermajorities, which may substantially constrain Parliament's future legislative freedom.

7. Case Law

Case 1: Vauxhall Estates Ltd v Liverpool Corporation (1932)

Facts

The case concerned legislation dealing with compensation for compulsory acquisition.

The earlier legislation contained provisions intended to protect certain rights against inconsistent later legislation.

A later Act was inconsistent with those earlier provisions.

Decision

The Court of Appeal treated the later legislation as capable of overriding the earlier statute.

Importance

The case supports the traditional doctrine of parliamentary sovereignty rather than a strong version of the Manner and Form Theory.

It indicates that an earlier Parliament cannot simply prevent a later Parliament from legislating inconsistently with it.

The case therefore provides an important contrast with the later Manner and Form approach.

8. Case 2: Ellen Street Estates Ltd v Minister of Health (1934)

Facts

The case involved the interaction between an earlier statute and a later statute concerning compensation for compulsory acquisition.

The earlier legislation contained provisions designed to protect its operation against inconsistent future legislation.

Judgment

The Court of Appeal held that the later Act prevailed.

Maugham LJ stated the traditional principle that Parliament could not bind itself as to the form of subsequent legislation.

Importance

Ellen Street Estates is frequently cited against the strong version of the Manner and Form Theory.

It supports the orthodox proposition that:

One Parliament cannot bind a future Parliament as to the form of legislation.

However, the statement concerning “manner and form” was arguably obiter, because the case did not involve a genuine procedural requirement imposed upon a future Parliament.

Therefore, the case should not be treated as conclusively resolving the modern Manner and Form debate.

9. Case 3: British Coal Corporation v The King (1935)

Facts

The case concerned the Statute of Westminster 1931 and the relationship between the Imperial Parliament and the Dominions.

The legislation included provisions concerning requests and consent by Dominion legislatures.

Judgment

The Privy Council considered the extent to which the Imperial Parliament could be legally restricted by procedural requirements.

Viscount Sankey expressed the orthodox view that the Imperial Parliament could not be legally bound by such requirements.

Importance

The case is important because it illustrates the traditional position that Parliamentary sovereignty prevents one Parliament from legally binding its successors.

It therefore represents an important challenge to the broad Manner and Form Theory.

10. Case 4: Attorney-General for New South Wales v Trethowan (1932)

Facts

This was an Australian case decided by the Privy Council.

New South Wales legislation required a referendum before certain constitutional provisions could be amended or repealed.

The legislature attempted to repeal the requirement without following the prescribed procedure.

Judgment

The Privy Council upheld the procedural requirement.

Importance

Although Trethowan was not a UK parliamentary case, it is highly significant for the development of the Manner and Form Theory.

It demonstrates that a legislature may potentially prescribe a special procedure for future legislation, particularly where the constitutional system recognises such procedural limitations.

It is therefore frequently used as comparative authority in discussions of whether the Westminster Parliament could similarly impose procedural conditions.

11. Case 5: Bribery Commissioner v Ranasinghe (1965)

Facts

The case concerned the Ceylon Constitution and legislation relating to the composition and legislative procedure of Parliament.

The relevant constitutional instrument imposed certain requirements concerning the legislative process.

Legislation was enacted without complying with those requirements.

Judgment

The Privy Council held that the legislative requirements had to be followed.

Lord Pearce explained the importance of compliance with the conditions governing the exercise of legislative power.

Importance

Ranasinghe is a leading authority for the proposition that where a constitutional instrument prescribes the conditions under which legislative power must be exercised, legislation that fails to comply with those conditions may be invalid.

The case is particularly important for understanding the conceptual distinction between:

“Parliament has no power to legislate”

and

“Parliament has power to legislate, but must exercise that power in the prescribed manner.”

The latter represents the essence of the Manner and Form approach.

12. Case 6: Jackson v Attorney General (2005)

Case

R (Jackson) v Attorney General [2005] UKHL 56

This is the most important modern UK case for the Manner and Form Theory.

Facts

The case concerned the validity of the Hunting Act 2004.

The Act had been enacted using the procedure under the Parliament Acts 1911 and 1949, without the consent of the House of Lords.

The claimants argued that the Parliament Act 1949 itself was invalid because the 1911 Act did not permit its own amendment through the special procedure.

Issue

The central question was whether Parliament had validly altered the manner and form by which legislation could be enacted without the consent of the House of Lords.

Judgment

The House of Lords rejected the challenge and upheld the validity of the Hunting Act.

Several judgments accepted, expressly or implicitly, that the Parliament Acts had altered the legislative procedure.

Lord Bingham, Lord Nicholls, Lord Steyn and others offered different constitutional explanations, but the case provides important support for the proposition that the legal identity and procedure of Parliament can be altered by legislation.

Importance

Jackson is crucial because it demonstrates that Parliament can, at least in some circumstances, change the method by which legislation becomes law.

It therefore provides substantial support for the procedural aspect of the Manner and Form Theory.

However, the judgments did not establish a single, comprehensive doctrine permitting every imaginable procedural restriction.

13. Case 7: Thoburn v Sunderland City Council (2002)

Facts

The case concerned the relationship between ordinary legislation and certain constitutional statutes, particularly legislation implementing European Union law.

Lord Justice Laws developed the concept of constitutional statutes.

Judgment

The Court stated that certain constitutional statutes would not ordinarily be subject to implied repeal in the same manner as ordinary statutes.

However, Laws LJ also indicated that Parliament could not simply stipulate the manner and form of all future legislation.

Importance

Thoburn is therefore important because it shows the limits of procedural entrenchment in UK constitutional law.

It recognises a distinction between ordinary and constitutional legislation but does not establish a general rule that Parliament can permanently control the legislative procedure of its successors.

14. Case 8: R (HS2 Action Alliance Ltd) v Secretary of State for Transport (2014)

Facts

The case concerned the proposed HS2 railway project and the relationship between domestic constitutional principles and European Union law.

The Supreme Court considered parliamentary procedures and constitutional principles.

Importance

Although not a pure Manner and Form case, HS2 is significant in the broader discussion of constitutional requirements governing Parliament and legislation.

The Court recognised that fundamental constitutional principles can play an important role in assessing the relationship between legislation, parliamentary procedure and judicial review.

It illustrates the continuing development of the UK constitution beyond a simplistic Diceyan model.

15. What Does Jackson Actually Establish?

The significance of Jackson needs careful explanation.

It does not necessarily mean that Parliament can impose any procedural restriction it wants.

Instead, it demonstrates that:

1. Parliament can create alternative legislative procedures.
2. The Parliament Acts altered the relationship between the Commons and Lords.
3. Legislation enacted through the statutory procedure can constitute valid primary legislation.
4. Parliament may, in certain circumstances, alter the legal method through which legislation is enacted.

The exact boundaries of this principle remain debated.

The House of Lords did not establish that all forms of supermajority, referendum or external-consent requirements would automatically bind future Parliaments.

16. Double Entrenchment

A particularly important concept is double entrenchment.

Suppose Parliament passes an Act stating:

“This provision cannot be amended unless a two-thirds majority approves the amendment.”

That is a procedural restriction.

But suppose the Act also states:

“This two-thirds requirement itself cannot be amended except by a three-quarters majority.”

This creates a stronger form of procedural entrenchment.

The question then becomes:

Can Parliament legally protect the procedural requirement itself from ordinary amendment?

This is one of the most difficult questions raised by the Manner and Form Theory.

17. Referendum Requirement

Another example is a statutory requirement that a future constitutional change must first be approved by the electorate.

For example:

“Parliament shall not repeal this Act unless the proposal has first been approved by a national referendum.”

Under a broad Manner and Form Theory, this could be regarded as a procedural requirement.

However, it can also be argued that a mandatory referendum substantially affects Parliament's substantive legislative authority because Parliament can no longer change the law entirely by its own decision.

This is why scholars disagree over whether referendum requirements are genuinely “manner and form” restrictions. Recent scholarship has specifically argued that some supermajority and referendum requirements go beyond pure procedure because they diminish Parliament's substantive law-making power.

18. Supermajority Requirement

A Parliament could theoretically attempt to require:

• 60%;
• two-thirds; or
• three-quarters

support for particular constitutional legislation.

The Manner and Form Theory would regard this as a procedural requirement.

But there is an important constitutional objection.

If a future Parliament cannot change the law using an ordinary majority, then its effective legislative power has been reduced.

This creates tension between:

Manner and Form Theory

and

absolute parliamentary sovereignty.

19. Procedural Limitation and Constitutional Statutes

The concept of constitutional statutes, developed particularly in Thoburn, has some connection with the Manner and Form debate.

A constitutional statute may receive special treatment because it is regarded as constitutionally fundamental.

However, constitutional status does not necessarily mean that the statute is absolutely entrenched.

The key distinction is:

Constitutional importance does not automatically equal procedural immutability.

Therefore, a constitutional statute may still be amended or repealed, although the method and legal consequences may differ from ordinary legislation.

20. Advantages of the Manner and Form Theory

1. Protects Constitutional Stability

Important constitutional rules can receive greater protection against sudden legislative change.

2. Allows Democratic Entrenchment

Parliament can require additional democratic procedures for major constitutional changes.

3. Preserves Substantive Sovereignty

The theory can be understood as allowing Parliament to retain substantive legislative power while regulating the method of exercising it.

4. Recognises Constitutional Evolution

It provides a theoretical explanation for developments such as the Parliament Acts.

5. Prevents Arbitrary Constitutional Change

Important constitutional arrangements may require broader agreement before alteration.

21. Criticisms

1. Conflict with Parliamentary Sovereignty

If Parliament can permanently bind future Parliaments, this appears inconsistent with the orthodox Diceyan principle.

2. Difficult Substance/Procedure Distinction

It is sometimes difficult to determine whether a requirement is genuinely procedural or actually affects substantive legislative power.

3. Risk of Excessive Entrenchment

A legislature could potentially make constitutional change extremely difficult.

4. Judicial Difficulty

Courts would have to determine whether Parliament had complied with a procedural requirement.

This could give judges an important role in deciding whether an Act of Parliament is valid.

5. Lack of Definitive UK Authority

The UK courts have not conclusively established a comprehensive general doctrine permitting every type of manner and form restriction. The modern position is therefore still subject to constitutional debate.

22. Six Major Cases – Quick Revision Table

23. Overall Position in UK Constitutional Law

The UK position can be summarised as follows:

Orthodox view

Parliament cannot bind its successors.

A later Parliament can repeal or override an earlier Act.

Manner and Form view

Parliament may prescribe the procedure through which certain future legislation must be enacted.

Modern position

The case law, especially Jackson, suggests that Parliament can in some circumstances alter the legislative process. However, the courts have not definitively accepted an unlimited general power of procedural entrenchment. The distinction between a genuinely procedural requirement and one that effectively restricts substantive legislative power remains crucial.

24. Conclusion

The Manner and Form Theory provides an important alternative to the traditional Diceyan understanding of parliamentary sovereignty.

Its central proposition is that:

Parliament may remain sovereign as to the substance of legislation while imposing procedural or formal conditions on the manner in which certain future legislation must be enacted.

The theory is particularly important in discussions of constitutional entrenchment, parliamentary procedure, supermajorities, referendums and the Parliament Acts.

The traditional cases such as Vauxhall Estates and Ellen Street Estates support the orthodox view that one Parliament cannot ordinarily bind its successors. By contrast, comparative authorities such as Trethowan and Ranasinghe demonstrate that procedural limitations can be legally enforceable in constitutional systems recognising them. Most importantly for the UK, Jackson v Attorney General demonstrates that Parliament can, at least in some circumstances, create and use a modified legislative procedure.

Therefore, the best way to understand the doctrine is:

Parliamentary Sovereignty → Substantive legislative power remains → Manner and Form → Procedure may be regulated → But the extent of enforceable procedural entrenchment in the UK remains constitutionally contested.