What is Parliamentary sovereignty, anyway?

by Carl Gardner on February 23, 2016

Albert_Venn_Dicey_in_academic_robes - Version 2As we await David Cameron’s sovereignty plan this week, it might help to explain what we mean by “Parliamentary sovereignty”.

When we talk about Parliamentary sovereignty, we don’t mean a general notion of political sovereignty—a nation’s right to be recognised as a state, and its rulers’ power within its borders. All states have sovereignty in this non-legal sense. That’s not Parliamentary sovereignty.

Parliamentary sovereignty is a much more specific doctrine in our constitutional law. It means there are no legal limits on the power of Parliament at Westminster to make law in our legal system; Parliament has unlimited legislative competence.

Parliamentary sovereignty is often associated with Professor A. V. Dicey (that’s him in the picture), who gave the classic definition in his Introduction to the Study of the Law of the Constitution:

The principle of Parliamentary Sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

Note the references to English law. It’s often said Parliamentary sovereignty isn’t part of Scottish constitutional theory, a point made in the Commons yesterday in what the Speaker called a “cerebral” and “high-minded” argument between the SNP’s Joanna Cherry QC and the Conservative, Alberto Costa.

There are two aspects to Dicey’s doctrine:

  • that Parliament can make any law whatever, and
  • that no one (including the courts) can override or set aside Parliament’s law.

When we say Parliament can make any law whatever, we really mean it. It’s a radical idea, that many law students find hard to believe at first.

Acts of Parliament can breach international law, for instance. The case students usually learn as authority for this is Mortensen v Peters, in which a Danish ship’s captain found international law did not help him in a criminal court. Contemporary proof is the fact that Parliament doesn’t let prisoners vote even though this breaches Britain’s international human rights law obligations. Parliament can ultimately lay down the law regardless of human rights; and (something that comes as a surprise to many people) the Human Rights Act 1998 allows it do so.

Nor is Parliament’s legislative competence limited in time. It can legislate retroactively, changing the legal consequences of past actions. The War Damage Act 1965 is the Act usually cited as proof, but the War Crimes Act 1991 makes the point just as well.

That Act also shows Parliament’s lawmaking power is unlimited in space: it can legislate for things done anywhere. This has very real-world applications, as shown by legislation against child sexual abuse committed abroad and against torture by officials of any nationality, anywhere in the world. It doesn’t mean authorities in any other country have to do anything. But people who break these laws can be tried here, by our courts.

All of this is in contrast to legislatures whose power is legally constrained, usually by a written constitution. In the United States, for instance, free speech is famously protected by the First Amendment to the Constitution, which says

Congress shall make no law … abridging the freedom of speech, or of the press …

Those first five words show us that Congress is not sovereign like Parliament. The US Constitution is a higher law, limiting its legislative competence. It follows that American judges review the constitutionality of Congress’s laws, and set them aside if they are in breach—something Dicey’s second principle tells us can’t happen in our own courts.

The big legal debate of modern times is whether Parliamentary sovereignty’s what it used to be, now that we’re in the EU. Laws made by the EU institutions don’t have effect in this country in their own right, but they take legal effect here because of section 2(1) of the European Communities Act 1972. Not only that: the EU law rule that EU law is supreme over national laws is also imported into our legal system by the notoriously obscure section 2(4), part of which says

any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section

which means every Act of Parliament gives way (in the event of conflict) to EU law brought into our system by section 2(1).

The result of these provisions is that an Act of Parliament that conflicts with EU law must be disapplied by UK courts, as the Merchant Shipping Act 1988 was in the Factortame case. That was, in the early 1990s, breathtaking legal news. Dicey told us no one could override or set aside a law made by Parliament—not even the courts. Yet EU law means this now has to be done. The second limb of Parliamentary sovereignty seems no longer to hold.

Or does it? The real legal reason British judges disapplied the Merchant Shipping Act in Factortame was that the European Communities Act 1972 told them to. Without that 1972 Act, EU law would not be law in the UK at all and would not, in our legal system, have primacy. These things are true only because Parliament has willed it. So British judges did not act in right of themselves (so to speak) when setting aside the Merchant Shipping Act, or in right of EU law or of any higher principle: they were ultimately obeying Parliament’s self-denying ordinance. The whole legal story, from the incorporation of EU law (including the supremacy principle) to the suspension of the Merchant Shipping Act can be seen as an expression of Parliamentary sovereignty, not as a limitation on it. Its workings have changed a bit since Dicey, but reports of its death have been exaggerated.

This is the orthodox (and in my view correct) view of Parliamentary sovereignty today, and it’s the view declared in statute in 2011, wholly unnecessarily. Parliament can repeal the 1972 Act, with the result that EU law no longer applies in this country; or change its effect and reject a single EU law that it doesn’t like. If this were done while we were still in the EU, there’d no doubt be legal consequences in the European Court of Justice. But inside our own legal system, Parliament’s word would be law.

I’m a great fan of Parliamentary sovereignty, because of its democratic strength: it puts all constitutional power in our hands, unlike written constitutions that pay lip service to a mythical “People” but in truth empower judges.

The real danger to Parliamentary sovereignty isn’t Europe, but the gradual development of a hostile domestic judicial culture aiming to subject it to principles of higher “legality”. That’s why I fear any attempt to protect Parliamentary sovereignty by empowering judges.

{ 22 comments… read them below or add one }

1 Kim Edmonds February 23, 2016 at 09:46

The ancient problem with pure democratic authority is that it represents the will of the majority – which is great until the majority decide ( for example) that they would happily be rid of the Jews or that black people or women aren’t really people. It is because of real historical cases where these presumptions have been embraced by the majority, that the UK government was instrumental in setting up the European Court of Human Rights in the 1950s. The purpose of the external court is the “tap on the shoulder” from someone outside the rush to please the majority when the majority have it in for some minority group.

2 Carl Gardner February 23, 2016 at 11:06

Kim,

I accept that entirely. There are of course risks with Parliamentary sovereignty, yes, just as there are risks with other constitutional models (of forced inaction in the face of mass shootings, for example). But I think our constitution has proved itself as reliable as any other in terms of human rights protection, if not more reliable than most.

And please don’t get the idea that I’m hostile to the ECHR or the Strasbourg court: I’m not. I think we have just the right sort of arrangement for a modern democracy, subjecting ourselves in a serious but ultimately provisional way to international human rights standards.

The Strasbourg court is imperfect (like every court) and gets things wrong sometimes, as it did in my view with prisoners’ votes. But I strongly support Britain’s participation in the ECHR, and the Human Rights Act.

3 David Allen Green February 23, 2016 at 15:52

I promise I am not trolling, but:

Isn’t parliamentary sovereignty simply a principle of statutory construction and interpretation, which exists as long as the courts adhere to it?

The only output of parliament which is “sovereign” is primary legislation (no SIs, motions, resolutions, etc are in any meaningful way “sovereign”). And these only have the effect they do because the Crown-in-court gives effect to it. And if the courts developed the principle then….

Just a thought, on which I would welcome your view.

4 Carl Gardner February 23, 2016 at 17:07

David,

Well: top trolling, at any rate! Actually, I essentially agree with you.

It’s certainly what you might call a principle of judicial reception of Acts of Parliament: how judges respond to Parliament’s legislation and what they do with it. And I agree that ultimately this can be fairly called a question of interpretation, in the same sense that Marbury v Madison (the landmark US Supreme Court case establishing what American call “judicial review” of legislation) was about the interpretation of the Judiciary Act 1789, and of the Constitution, and that Costa v ENEL (the landmark European Court of Justice case establishing that EU law is supreme over conflicting national laws) was about the interpretation of the EEC Treaty. In a sense (and I agree it’s not a trivial sense) all questions about the legal meaning and effects of a piece of legislation are questions of its interpretation. So, yes.

And I agree that the doctrine is “held up” by judges, and continues only so long as judges recognise and enforce it. Whether Parliamentary sovereignty is a common law concept is disputed I think (I’ve heard Prof. Adam Tomkins of Glasgow argue that it’s a more fundamental constitutional principle than that) but whatever its nature is, I agree the courts could reduce or end their allegiance to it. In which case, it’d be history.

All my fear about it is caused by the fact that judges could decide one day no longer to respect Parliamentary sovereignty. There are one or two hints in recent case law that some of our judges might be dabbling in heresy (I’m especially thinking of Evans, the case about Prince Charles’s letters in which legislation was interpreted in, I thought, a highly surprising way, under the influence of “the principle of legality”). I don’t for a moment think our judges are wicked people trying to subvert democracy or grab power; but I do think judges are human, that high-minded judicial idealists are apt to trust themselves to know what’s best rather than politicians (who may appear stupid in comparison), and that they can be tempted to arrogate power to themselves, thinking that they’re merely using higher principles to limit the power of others.

We’re in quite a fluid moment, I think, where judges could bit by bit go in a more Evans-like direction, and I fear they might do so if a series of changes ends up shifting the culture (or if you like, the politics) of the judiciary. I really think politicians have to avoid encouraging this, and worry that David Cameron’s generation of MPs are so obsessed by Eurojudges that they’re insufficiently wary of our local ones.

5 David Allen Green February 23, 2016 at 17:49

Thank you Carl.

The phrase “sovereignty of parliament” is a misleading one. What is it means is the absolute priority which should be accorded to primary legislation. And that is, as I contend above, a matter of statutory interpretation.

For example: we both know the “implied repeal” cases – long after Coke, and indeed after Dicey. The Courts did not give effect to to a provision in primary statute (for the good if trite reason that it was contradicted by a subsequent provision). If were taking the sovereignty of primary legislation seriously in any absolute sense, then the courts would have just been faced with a insoluble contradiction. But an Act was disapplied, and without ECA and no ship called Factortame in sight.

I blame Dicey.

Diceyan dogma dies hard; but it may only be a phase constitutional law was going through, for just over a hundred years (and even then there were the implied repeal cases and Factortame), and – if our Scots colleagues are right – it was only valid in one part of the United Kingdom anyway.

The sovereignty of parliament is a principle which seems misunderstood by its supporters and opponents alike. I am ultimately neutral. It is for me another constitutional principle which may (or may not) be applied by the courts: the important thing for me is how liberal the “end results” of court decisions are when dealing with the rights of the individual against those with coercive legal powers. That is more important than according parliament any absolute power, either in theory or in practice.

6 Asif February 23, 2016 at 18:03

Practically speaking, the parliament of Uk is not sovereign. They limited the sovereignty with the incorporation of ECA1972. Arguably, they are supreme because they can get out of EU anytime they want, But are they going to bet that? I highly doubt it. The voting system is simply the consolation prize. A mental satisfaction to feel sovereign again!!

Asking a robber to mug you or you getting mugged is the same thing. You’re losing anyway. haha

Jokes apart, if people have the right form of government, parliamentary sovereignty doesn’t matter anyway.

7 Carl Gardner February 23, 2016 at 18:33

David,

By referring to the implied repeal cases I assume you mean the very interesting Vauxhall Estates and Ellen Street Estates cases in the 1930s (which I can’t find on BAILLI but which are discussed at para. 42 here). I’d say what happened there is that a very interesting argument was unsuccessful because judges thought Parliament can only have intended the later Act to prevail; whereas when the European Communities Act 1972 came along, it was obvious to judges that Parliament must have intended that Act (so long as it is in force) to condition future legislation.

I fear you might one day be proved right about Parliamentary sovereignty being a phase. I don’t think we’re quite in Matthew Arnold or Philip Larkin territory yet, but there are one or two straws in the wind.

The good news is that the Liberal Democrats, who determinedly and (to their credit) openly want to change the entire basis of this country’s constitution, have been scotched. The bad news is, first that the left and centre left seem to have lost the belief that the traditional British constitution is an ideal vehicle for social democratic progress, a belief I’m sure Michael Foot held, and a belief I share; and second, that even the bloody Tories are now constitutional heretics, wanting all sorts of strange and unhelpful tinkerings.

I hope for a serious revival in constitutional conservatism, and may soon begin agitiating for one. In case anyone’s wondering, I certainly don’t see the awful prospect of a Leave vote in the EU referendum as opening up any such possibility: in fact I think the downside risk is greater. If we leave Europe, and certainly if we also in some way try to “loosen” our relationship to the ECHR (an attempt I think we agree is odd and unwise) I think Britain’s centre and left will become even more committed to enshrining (aaagh!) higher legal principles in our constitution.

Fair enough for you, as a liberal, to want liberal end results. Perhaps the most important thing for me is that the our constitution as a whole delivers outcomes that have democratic legitimacy, and that social progress is not closed off by the higher wisdom of judges who consider themselves liberal minded.

8 Robert Kaye February 23, 2016 at 18:37

I thought John Finnis had quite a good response to the argument that Parliamentary Sovereignty cannot have a legislative basis, and therefore must be down to judicial interpretation (and is therefore judge-made and could be judge-scrapped):

“Lord Steyn’s dictum in Jackson v AG that the judges created the supremacy of Parliament should be simply rejected, along with its suggested corollary that what they created they can abolish. What Coke was doing in The Case of Proclamations did not become part of the constitution until it was adopted by the polity, by a process that includes the Petition of Right he drew up for his fellow MPs to present to the King in 1628, the civil war Parliament and then the Glorious Revolution enforced by the Dutch navy and armed forces helping install a partly Dutch royal house and the constitutional settlement of the Bill of Rights 1689 and the Act of Succession 1701 securing a Hanoverian monarchy and judicial security of tenure. Judicial adoption of these rules has been essentially, and reasonably, retrospective.”

9 Carl Gardner February 23, 2016 at 18:44

Asif,

Practically speaking, maybe not. But it’s vital to be clear about what the position is, legally speaking. You may never want a divorce, but it matters that you can get one. As for whether we are going to petititon for divorce, we’ll find out on June the 24th.

I’d say our current constitution is the right form of government, for this country anyway.

10 David Allen Green February 23, 2016 at 18:47

Carl

There is a lot we agree on.

However: just on the “implied repeal” cases (which you correctly identify, and I apologise for not doing so myself) and Factortame, I think it may be intellectual gymnastics to say that they are “what parliament intended”.

In my view, you can only apply the Diceyian theory of parliamentary sovereignty to the “implied repeal” and Factortame cases by closing one eye, squinting the other, and pretending the things fit in the wrong-shaped box.

Would it not instead be better to drop the “intention of parliament” fairy tale?

Dressing-up the setting-aside of primary legislation in some elaborate garb of what parliament somehow *really* intended (other than what it intended with the primary legislation it did actually pass, and which is – well – being set aside) is only done for theoretical convenience and neatness.

The theory of absolute sovereignty to parliamentary sovereignty – like the absolute freedom of contract, its near historical and doctrinal contemporary – was a mere phase in the history of law, and it wasn’t always true then.

11 Carl Gardner February 23, 2016 at 18:51

Robert,

That’s very interesting, thanks. I really must catch up with what Finnis has been saying recently. And that fits I think with Adam Tomkins’s theory (I hope I’m being fair to him) that what judges are really doing by respecting Parliamentary sovereignty is to acknowledge an indisputable constitutional fact, or at any rate the fundamental constitutional bedrock.

I’m tempted to say it’s what Kelsen would see as our Grundnorm or what Hart would see as our ultimate rule of recognition, but I suppose we do also have to account for the status of common law precedent as law.

12 Tristan February 23, 2016 at 19:12

This is a really interesting debate and I just wanted to add a few comments about the nature of Parliamentary sovereignty, in particular, from the change between Carl and David (two of my favourite tweeters!):

In some of the exchanges it was suggested that sovereignty is a product of the common law, a rule of interpretation, and as such can be modified by the courts acting alone.

It is better to understand sovereignty as a higher constitutional principle. HLA Hart called this the “rule of recognition”. This is made up of a consensus of officials in a system (and a minimal level of acceptance by the public). As such, it is neither the courts nor Parliament acting alone that can change or modify it: it requires both.

This can be seen in the case law too. Thus, Factortame is best seen as the courts acknowledging a shift in the rule of recognition, initiated by Parliament with the ECA. Similarly, in the famous Jackson case, the court was once again confirming a shift in the rule of recognition: this time the “definition” of Parliament, which was initiated by the courts when passing the Parliament Acts. In contrast, AXA is an example of the courts making the first move and Parliament (tacitly) accepting this.

To add to this theory: Alison Young argues that we have a system of “bi-polar” sovereignty. This means not only that sovereignty is ‘shared’ between courts and Parliament but that, in some ways, both assert themselves as being sovereign, without being able to “make good” on that claim. Parliament can overturn the decisions of Parliament and if the courts go too far, could precipitate constitutional crisis. In this tension, however, there is a constitutional dialogue that promotes and develops good constitutional principles and a check and balance between democratic accountability and the protection of rights and minority interests.

Hope that was interesting! 🙂

13 Phil February 23, 2016 at 23:48

I like Tristan’s resolution of the courts/Parliament chicken/egg problem, particularly for the way it stresses the consensus-based nature of the ‘rule of recognition’. Hart was notoriously reluctant to define his ‘officials’, and perhaps this discussion shows how that vagueness could be productive. If we bring political as well as legal professionals under the umbrella of ‘officials’, we can imagine a real-world ‘rule of recognition’ being constituted by shared elements in both of those groups’ practices.

Not sure if parliamentary sovereignty can be fitted into the Kelsenian framework, though. As I understand him – which is mainly via a respectful but puzzled Hart – Kelsen argued for the unity of all law, supranational legal systems very much included. The situation in which the ECHR can rule against Britain, the Supreme Court can rule that the ECHR ruling probably ought to be applied in some way, and Parliament can show absolutely no interest in applying it, is a standing affront to a Kelsenian model. I suppose we can imagine an Anglo-Kelsenian schism rejecting any kind of international seamless robe of law on the grounds that we’ve got our own, English seamless robe – very much in the spirit of the Henrician declaration This realm of England is an Empire – but that would be quite a small splinter movement.

14 John Doe February 24, 2016 at 00:28

I think it’s worth adding to Carl’s – excellent, if sadly unpopular in modern times – take on written constitutions that it’s not just judges that they empower. When they’re entrenched (i.e. they require supermajorities to change) they also give the generation that creates them the power to project its values far into the future. As a result you end up with places like the US deciding fundamental questions about the nature of government through the lens of a 200-year-old political compromise, made in a time of political upheaval that is long gone.

This isn’t just clear in places like the right to bear arms but in more pedestrian matters – can anybody seriously argue that it should take two thirds of both Houses of Congress and three quarters of the states to change the age at which someone is eligible to become President?

15 Gareth February 24, 2016 at 21:22

Very enjoyable discussion, thank you.

First, please excuse any legal ignorance on my part: I’m not a lawyer and I’m commenting as I enjoy history.

I’d always believed that sovereignty lay with the ‘Crown in Parliament’, an artefact of the historical process of conflict and compromise as related in Lord Steyn’s dictum quoted in Robert’s comment above. Doesn’t this help reconcile any conflict between parliamentary sovereignty and judicial authority (or higher legal authority arrogated to judges) in that the latter is derived from a Crown whose legal authority is only made effective when exercised through or in conjunction with Parliament?

Token of this is that until the Blair Government the Lord Chancellor although active and effective head of the judiciary was primarily a political appointment and before everything a parliamentarian.

16 Kris February 24, 2016 at 22:13

Dear Carl

It’s almost as if you’ve been teaching Constitutional law to LLB students for years!

In the immortal words of Ruth Bader Ginsberg, “I concur”.

17 Carl Gardner February 27, 2016 at 14:56

John Doe,

I very much agree with you about a written constitution being one generation’s power-grab from those to come. This is quite a useful way of thinking of the contrast with Parliamentary sovereignty, where today’s generation has all legal power.

And your saying how hard it can be to change things under a written constitution reminds me of two things. First, Popper explaining in The Open Society and its Enemies how Plato’s vision of the Republic was of a political system designed to prevent change; and second, Justice Scalia telling the Oxford Union (in this 60 Minutes portrait of him, just before 4 minutes in) that the US Constitution should not be seen as justifying social changes since the intention behind it was to impede change.

18 John Doe March 2, 2016 at 10:08

Carl,

I haven’t read Popper or watched the 60 minutes episode in question- thanks for the tips.

19 Jasp June 20, 2016 at 13:33

Just a fresh law student here and need some opinions.. Assuming UK decides to leave the EU, do you guys think Westminister Parliament will regain its supremacy?

20 Carl Gardner June 20, 2016 at 13:43

Parliament’s sovereign now, Jasp. To think it’s not is a radical misunderstanding.

21 Citizen August 8, 2016 at 09:43

Post referendum it has been stated that the sovereignty of parliament does not extend to giving away e.g. to the EU the power of the people to elect their rulers; that parliament’s sovereignty is lent to it by the people and returned to the people at every general election; and that parliament therefore cannot frustrate the will of the people as expressed adequately by the referendum majority.

It may be said that if parliament refuses to implement the vote to leave the EU, the consequence would be a general election. But a general election would by no means guarantee a parliament with a Leave majority even if no voter changed their mind: in 2015 with fewer votes than the losing 2014 Yes vote, the SNP won all but three Scottish Westminster seats under first-past-the-post, with the Unionist majority divided.

Is there any agreed legal answer to this problem?

22 James Connolly November 4, 2016 at 18:05

So Parliament doesn’t derive it’s sovereignty from the people but from the court’s willingness to enforce the laws it creates? And as the courts sit in the name of the monarch, does that mean effectively the monarch is still sovereign? The decision to take the Article 50 trigger away from the executive and give it to Parliament is a mess of contradictions then.

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