This analytical article assesses the relative importance of the doctrine of parliamentary sovereignty on the doctrine of separation of powers and the rule of law in light of constitutional change.
The absence of a written (codified) constitution in the UK has placed emphasis on the doctrine of parliamentary supremacy. This is of particular interest, namely because in countries with codified constitutions, it is normally not Parliament, the legislature, which is supreme, but the constitution. The principle and scope of parliamentary sovereignty have therefore been subject to debate in the UK for centuries in the public law sphere. Lord Hodge’s recent dictum in Moohan confirms the notion that the courts could declare legislation unlawful in certain exceptional events.
Leading scholars such as A.V. Dicey have proposed an absolutist version of the doctrine, affirming its unprecedented legislative supremacy while denying limits of any kind on Parliament’s legislative authority. This article seeks to cover the extent to which Dicey’s absolutist theory enables Parliament to remain a dominant characteristic of our political institutions today. This will be counterbalanced by issues of traditional and recent constitutional importance such as the application and compatibility of the rule of law, Human Rights Act 1998 (HRA), the judiciary and implications of Britain’s entry into the European Communities in 1973. It will conclude that while Dicey’s thesis is of relevance, the changing nature of Britain’s constitutional arrangement as advanced by Bogdanor’s ‘New British Constitution’ mitigates the extent to which the complete absolutist description can be applied.
The meaning of Parliamentary sovereignty is complex. Dicey attributes both a positive and negative-specific definition. The latter means that there are no legal limitations upon the legislative competence of Parliament as expressed that no person or body outside the legislature ‘is recognised by the law of England as having a right to override or set aside the legislation of Parliament’, hence there exists no body or institution possessing the legal authority with the necessary legislative competence to suppress Parliament. The conventional view of unqualified legislative supremacy stems from Dicey’s positivist definition propounding that Parliament has ‘the right to make or unmake any law whatever’. Lord Reid qualifies Dicey’s negative definition stating in Madzimbamuto v Lardner-Burke that if Parliament chose to do anything (such things most people would regard as highly improper) the courts would not hold an Act of Parliament invalid. This would seek to uphold the application and indeed relevance of Dicey’s negative-specific definition.
Can Courts Strike Down Acts Of Parliament?
Critics have sought to uncover the common law basis of the constitution on the grounds that while previously it was undisputed that the courts cannot strike down Acts of Parliament, this argument is changing. This is because sovereignty is a creation of and is controlled by the courts. Subsequently, the courts may invalidate statutes contrary to fundamental common law rights (critics known as common law constitutionalists). They argue that there should be an incremental constitutional revolution chiefly aimed at replacing parliamentary sovereignty with a new constitutional framework where Parliament shares ultimate authority or may even be subordinate to the courts. This was evident in the Jackson case (discussed further below) where Lord Steyn embraced this theory in obiter comments. This indicates that the courts could challenge Parliament as they believe that although parliamentary supremacy is a fundamental principle of our constitution, ‘pure and absolute’ as Dicey had envisaged, it harnesses a certain iconoclastic attribute with the UK’s constitutional framework, enforcing a legal constitutionalist’s interpretation of the rule of law as the sovereign entity, rather than Parliament.
Although Dicey’s definition is highly relevant, it is undermined by principles underpinning our system of governance. The notion of representative democracy forms the basis of political restraint on Dicey’s absolutist version of parliamentary sovereignty. Professor T.R.S Allan’s points out that serious abuses of power would meet with popular resistance, curtailing the scope for reactionary legislation as the theoretical boundless sovereignty of Parliament would be accompanied by an ‘internal limit’. He stresses the importance of the popular public will. Thus, the purpose of representative democracy in holding free and fair elections every five years through the Fixed Terms Parliament Act 2011 means that real authority lies with the people through popular sovereignty. Mark Elliott adds complexity, correctly dismissing the credence of such legislation that is “utterly repugnant to the most fundamental of values.” He identifies the chasm between the theory (de jure) of parliament’s sovereign authority to legislate and the reality (de facto) of its more limited political power to do so. While Dicey’s definition is a determining principle insofar as it is legally insuppressible, it is debunked by our system of representative democracy where ultimate power lies with the people through popular sovereignty.
The Ultimate Power – Parliament
However, Burmah Oil Co v Lord Advocate confirms Dicey’s positive definition preserving the principle of parliamentary sovereignty. This shows that the ultimate law-making power lies with Parliament. The ultimate judgment of the House of Lords held that government was liable to pay compensation, but the government after the case produced a bill enacted the War Damages Act 1965. This was a piece of idiosyncratic legislation that nullified the decision of the House of Lords, confirming the validity of Dicey’s definition.
Nevertheless, parliamentary sovereignty can be seen to operate in the political sphere rather than purely constitutionally based one. Geoffrey Marshall advances a legal constitutionalist interpretation stating in a society that upholds individual liberty, it cannot be within the (legal) capacity of government to deprive citizens of rights. This presupposes a higher form of law, stressing the implicit importance of the principle of the rule of law as the fundamental constitutional and legal apex. Marshall’s statement “it is one of the defining conditions of the practice of democracy that the powers of an elected government be not absolute,” compares the potency of democracy with that of the hampering effect on individual liberty vis-a-vis Dicey’s absolutist doctrine. Thus, democracy as a system of government provides a useful platform within which constraints may be made on the principle of parliamentary sovereignty.
Conversely, Goldsworthy’s thesis repudiates Elliott’s argument by underlining the notion that there is in fact no inconsistency between theory and reality. He argues that Parliament is subject to political and moral constraints in theory and reality. Elliott stresses the importance of the scope of parliamentary sovereignty though practical political terms, with a focus on the practice of democracy, failing to consider the doctrines purpose, which is to make clear that there are no other institutions/bodies that possess the legal authority to disapply statutes/Acts of Parliament. This article concurs with Goldsworthy in that if the ‘gap’ of Parliament’s political, legal and moral authority were to be closed, then it is for the courts to decide which constraints should be judicially enforceable.
The rule of law, as a guiding constitutional principle that has competing conceptions of its meaning, plays a substantive role in relation to the doctrine of parliamentary sovereignty. The lack of a fixed express definition of the rule of law means that the concept is broad and has been intrinsic to legal and political philosophy, offering a substantive constitutional direction of what makes a satisfactory legal system. It is universally understood that Dicey hardly contested the conflict between parliamentary sovereignty and the rule of law. He also did not expressly evaluate the circumstances if and when Parliament passes legislation infringing fundamental human rights. Therefore, he could not have foreseen the relative tension between parliamentary sovereignty and the rule of law. The rule of law, as Bogdanor states, now has broader interpretation and implies recognition of those basic human rights which ought to be acknowledged in any liberal society.
The Rule Of Law
Dicey’s application of the rule of law states that no one should be punished other than for a distinct breach of law. This concise requirement implies that Dicey was a champion of the law as being transparent, clear and certain – requirements that Lord Bingham contemporarily extrapolates. Nevertheless, Dicey’s application of the practical implications of parliamentary sovereignty concerning human rights has been questioned. The debate surrounding the conflict between Parliamentary supremacy and the rule of law is fomented by terrorism legislation. The Anti-Terrorism Crime and Security Act 2001 gave the Secretary of State the power to detain those foreign nationals he certified as suspected international terrorists. They were detained despite being charged with no offence. In the infamous Belmarsh case, Lord Nicholls qualifies Dicey’s application of the rule of law rightly saying that the “indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.”
Furthermore, The Police and Criminal Evidence Act 1984 provides that an arrest may be enacted without a warrant, as long as there were reasonable grounds for suspecting that an individual to be committing an offence. This objective analysis given a practical meaning is contrary to Dicean thinking that “no man should be made to suffer […] for a distinct breach of law,” mitigating the intrinsic qualitative moral and transparent basis required in the rule of law.
Which One Takes Precedent?
In determining whether the rule of law or parliamentary supremacy takes primacy Lord Hoffmann expressly states that Parliament can “if it chooses, legislate contrary to fundamental principles of human rights […] which is contrary to the rule of law.” This is concurred by Jeffrey Jowell, who states that “it is no longer self-evident, therefore, that our courts would inevitably concede Parliament’s right to ride roughshod over fundamental rights and […] constitutional principles.” However, this has been challenged by the controversy underpinning control orders under the Prevention of Terrorism Act 2005 that gave the Secretary of State power to impose control orders on terrorist suspects, subject to judicial review, on the basis of reasonable suspicion concerning terrorist activities. The House of Lords’ decision stated, contrary to Parliament that the control orders imposing an 18-hour curfew was a deprivation of liberty. This brings the question of whether the rule of law could operate as a substantive constitutional guarantee, or in other words act as a constraint on Parliament.
An analysis of the Human Rights Act 1998 (HRA) further delves into the question as to whether the court can operate as a substantive constitutional guarantee. The HRA was an attempt to resolve this illogicality without formally undermining the doctrine of the sovereignty of Parliament. Its purpose was in essence to bring rights home. The HRA offers a middle way between parliamentary sovereignty and a written constitution in that it is an ‘intermediate stage’ between ‘parliamentary supremacy and constitutional supremacy’. Therefore, the HRA can be seen as being wedged between the conflicting notions of parliamentary sovereignty and the rule of law as Mark Elliott states that the rule of law and HRA work in tandem. Moreover, Hilaire Barnett states that the fundamentals concerning the application of the HRA go a long way towards providing a charter of rights. But what Barnett does not expressly address is the extent to which the charter of rights constitutes a definitive legal framework that subjects Parliament to enact legislation compatible with it.
Court Vs Parliament
However, even Dicey’s negative definition that “[No] court within the [UK] [can] set aside […] an Act of Parliament” no longer holds substantive meaning. This was based on the notion that the then Law Lords, for the first time expressly cast doubt into the supremacy of parliament noting [obiter] that Parliaments ability to pass law might be limited in substance. Lord Steyn stated in Jackson that while the supremacy of Parliament is still the general principle of our constitution, it is a construct of the common law it may be subject to exceptions.
Nevertheless, although the court casts into doubt the validity and scope of parliamentary sovereignty, can such legislation be declared unlawful? In ex parte Witham, the court recognised that the Lord Chancellors acted ultra vires by setting fees contravening s130 of the Supreme Court Act 1981, was impliedly limited by the common law right to access to the courts. This decision was a direct application of the rule of law to ensure that no one was above the law. Thus, the court appeared to show that if fundamental common law rights were at threat, every citizen had a right of unimpeded access to the court, implying that judges are increasingly likely to not shirk away from the prospect of declaring such legislation unlawful.
Bogdanor’s New British Constitution renders Dicey’s analysis irrelevant due to a plethora of constitutional changes that have occurred, placing restraints on the doctrine. European affairs have proved to be a conflict to parliamentary sovereignty, increasing the involvement of courts. By adhering to the European Communities Act 1972 (ECA 1972), it effectively bound future Parliaments to the Community as English law was viewed inferior and subordinate to EU law, showing that Parliament has limited its powers. The House of Lords (ACHL) judgement in Factortame (no 2) is testimony to the challenge that EU membership poses for parliamentary sovereignty. The HL disapplied parts I and II of the Merchant Shipping Act 1988 (due to express conflict with European Community law and the Common Fisheries Policy) as it prevented Community Law from having full effect. Lord Bridge’s dictum illustrates the clear jurisprudential tensions that lie with conventional understandings of parliamentary sovereignty, creating the question as to the extent to which the quality of parliamentary sovereignty had been reduced. This act of disapplying parts of the Act which was seen as incomprehensible not only places the doctrine in a tenuous state but also, I believe, expresses ramifications about the rate at which Britain is becoming more of a constitutionally defined state insofar as the judiciary having the statutory right to issue declarations of incompatibility with regard to Parliaments ability to legislate without interfering with the ECA 1972.
The New Legal Order
The House of Lords declared that legislation relating to part-time employees violated a European Union directive, with The Times prefiguring the advancement of judicial checks vis-à-vis to provisions offending a bill of rights stating that “Britain may now have, for the first time in its history, a constitutional court.” This is advanced by Stephen Sedley stating that the political landscape has reached a severe critical mass and this, per se, places the doctrine of parliamentary sovereignty in danger.
However, this article seeks to discount the former argument and indeed repudiate J.D.B. Mitchell in viewing parliament permanently in light of pooling its sovereignty and notion of joining a new legal order. It is argued that there is no genuine question of legal discontinuity vis-à-vis parliamentary sovereignty. It may appear that although Parliament may have prima facie limited its powers insofar as it voluntarily agreed to do this by applying the ECA 1972 provisions. Lord Bridge reasons that “whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.” He also states regarding the right of Parliament to bind its successors that “the new doctrine makes sovereignty a freely adjustable commodity whenever Parliament chooses to accept some limitation.” It is argued that the doctrine of parliamentary sovereignty, therefore is not entirely curtailed; Parliament may retract its sovereignty by repealing the ECA 1972 and leaving the European Union. Furthermore, it is not a case where the process of placing constraints on parliamentary sovereignty that naturally equate to a “revolution” but rather the contrary, in that Factortame as T.R.S. Allan notes, represents a rational attempt to explore the boundaries of legislative sovereignty within a contemporary constitution. Thus, no genuine question of legal discontinuity arises.
The Thoburn case and HS2 vividly illustrates a potential breaking down of sovereignty. Here, the common law established what the definition of a constitutional statute was without any statutory guidance. Laws LJ endorsed the notion of the primacy of EU law (through s18 EU Act 2011) because of primary legislation espoused in section 2 of the ECA 1972. Laws LJ’s analysis of the European Communities Act’s status as a ‘constitutional’ statute has limited meaning in that it is dependent on Parliament’s accordance and toleration of EU law. Mark Elliott states that the elegance of Laws LJ’s analysis stems from its capacity to accord a pragmatic, day-to-day primacy to EU law, whilst insisting that, in theoretical terms, Parliament’s sovereignty is undiminished thanks to its capacity to amend the ECA and override EU law.
To conclude, Dicey’s conception of parliamentary sovereignty may be seen as a paradox insofar as partly weak yet necessarily important, but his positivist notion that parliament can still ‘make or unmake law’ does still contribute to its existence of Parliament remaining a dominant playmaker of our political institutions – at least from a political constitutionalist understanding, hence still a determining principle. Therefore this article endorses the notion that although Parliament prima facie may appear supreme, endorsing the relevance of Dicey’s doctrine, the view that all the power resides with Parliament is not entirely true with the courts’ increasing significance, the HRA, the rule of law and Britain’s obligation to the European Community.
From a purely rights-based analysis it would appear therefore that Parliament has the ability to offer minimal protection with regard to the issue of fundamental human rights, hence a common law, legal constitutionalist reading is preferred. The notion of incorporating the concept of parliamentary sovereignty as a higher order of law markedly conflicts with fundamental rights, must be offset by political practical notions of popular sovereignty with a stress towards a broad commitment to democracy rather than the potentially arbitrary use of parliamentary sovereignty.
Whilst Dicey’s thesis is of relevance, Bogdanor’s contemporary analysis is advanced in light of our organic constitutional arrangement, which mitigates the extent to which the complete absolutist description can be readily applied. Therefore, this article has argued, along the grain of scholarship of legal commentators that Dicey’s positivist meaning of parliamentary sovereignty is still determinative. It is common consensus that his negative guidelines have diminished or are no longer applicable. Nevertheless, the framework of the doctrine has been well preserved and this per se upholds the contemporary relevance of Dicey’s definition as a substantive guiding beacon and instructive mechanism forming the basis of Parliament’s ability to legislate.