Commentary by Gabriella ATKINS
Following Alex Ireland’s article last week, we thought an analysis of the concept of Parliamentary Sovereignty in Britain might be useful to some readers given it is a cornerstone of the Brexit debate.
The principle of Parliamentary Sovereignty is one of the three foundations upon which the UK constitution rests. The UK constitution is unwritten which means that, unlike countries such as Germany, Italy, France and the United States, our constitution cannot be found in a single document. Instead it is composed of multiple strands of law, principles and tradition which join together to create the UK constitution. But what is a constitution? In general terms it is the rules by which a society is governed and agrees to be governed by. Often following a revolution (France, the US) countries draw up a written constitution in which they contain the terms by which the country will be governed, but in the UK there has been no such overhaul and thus our constitution has remained unwritten. The advantage this gives is flexibility to adapt to society’s norms but that same flexibility means all laws are created the same and can theoretically be revoked by the same procedure – the Human Rights Act 1998 is technically no better protected than one regulating traffic. Whether our constitution arises from a lack of major revolution or is the reason for a lack of major revolution is a matter of interesting academic debate but is beyond the scope of this article.
Dicey is a political theorist who’s Introduction to the Study of the Law of the Constitution (1885) provide a benchmark from which constitutional studies begin. He identifies that the UK constitution is composed of three main pillars: the rule of law, the separation of powers and parliamentary sovereignty. These principles are not codified institutions with narrow theoretical frameworks in which they operate but instead are broad overarching principles which move and adapt to the wants and needs of society. All three are required in order to ensure that the constitution remains a democratic institution where the people are ruled by consensus in line with a predictable set of rules and laws. The following diagram set out the three pillars but remember that these are flexible and move and change according to society’s demands:
Separation of Powers
The separation of powers is the principle that the three components which make up the state – the executive, the legislature and the judiciary – are separate institutions with individual powers which should remain discrete. The legislature is the law-making body, consisting in the UK of the Queen-in-Parliament (the Crown, House of Commons and the House of Lords). The executive is the body which implements the law, in the UK the Crown, Prime Minister, Cabinet and the Civil Service. The judiciary interpret and enforce the law, the courts in the UK. Unlike countries such as France and the US where a strict separation of powers is codified in their national constitution, the separation of powers in the UK is more overlapped as some of the legislature are also in the executive – for example the Prime Minister sits in the House of Commons.
Rule of Law
The definition of the rule of law has aroused much academic debate. Dicey states that the rule of law is composed of three principles: the supremacy of regular law over arbitrary power; equality before the law; and equality between the law. Broadly this means that: all acts by government officials must have basis in law; the law applies to everyone equally; there is no higher form of constitutional law which cannot be repealed by parliament. More recently Lord Bingham has extended Dicey’s initial principles to define the rule of law in terms of eight principles:
- The law should be accessible, clear and predictable
- Legal issues should be resolved through legal processes rather than administrative discretion
- Law should apply equally to all
- Law should adequately protect human rights
- There should be access to justice without inordinate delay or expense
- Public officials should exercise their powers in good faith
- Legal and adjudicative processes should be fair
- States should comply with obligations under international law
According to Dicey, parliamentary sovereignty is the most important of the three principles. Dicey’s theory accords to an unlimited parliamentary sovereignty in which Parliament is the supreme law-making body. Furthermore no Parliament may bind a successor or be bound by a predecessor – a process known as entrenchment and the reason why the Human Rights Act cannot be offered greater protection. Finally no one can challenge the validity of an act of Parliament. Dicey’s formulation is only theory and in practice there are limitations to these powers, namely in the form of judicial review, but it is important to remember that this is always in the minds of the courts when they pass judgments. Judges are acutely aware when they are stepping over their powers and moving into the grounds of legislating as opposed to creating law by precedent.
When discussing ‘sovereignty’ in terms of the Brexit debate it is this theory of parliamentary sovereignty which is referred to when campaigners lament the loss of control to the EU. The issue first came to light in the early 1990s in the series of Factortame cases in which a UK act regarding fishing boats was overruled by the Court of Justice of the European Union following complaints by Spanish fishermen. However it is too simplistic to say that parliamentary sovereignty no longer exists because there is a form of law to which the UK owes deference. To take the issue of human rights as an examples: section 2(1) Human Rights Act 1998 only creates a duty to take into account European Court of Human Rights (ECtHR) jurisprudence when deciding matters. This has subsequently been interpreted as courts following a clear and consistent line of ECtHR jurisprudence (Alconbury) and if the ECtHR decision conflicts with a Senior Court decision the UK courts are to follow domestic precedent (Kay v Lambeth). Furthermore the ‘mirror principle’ outlined in ex parte Ullah indicates that the level of protection in the UK is to be no less, but no more than that afforded by the ECtHR. The act creates judicial powers to interpret legislation so that it is compatible with ECHR (s 3 HRA 1998) or pass a declaration of incompatibility (s 4 HRA 1998) which then triggers a convention that the minister responsible will modify the legislation.
So to argue that parliamentary sovereignty has vanished simply because the UK is a part of the EU is wrong. Parliamentary sovereignty on a national level still exists and any potential devaluation in its power is more attributable to the flexible nature of the UK constitution which leads to a cyclical shift in power between the rule of law, separation of powers and parliamentary sovereignty. Furthermore it is not simply something that you either have or do not have – look at other international treaties the UK is a signatory to and the obligations it owes there. For example, NATO, UN, Kyoto Protocol. For NATO our country would go to war…does the EU demand that same obligation?