As 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 earlier this week 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 Britiain’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 andagainst 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.
Read more analysis in ‘Up in the air – As Brexit looms, GCs face leap into the unknown.’