3 Divergent opinion on the scope of
Parliamentary sovereignty
22. In order to evaluate the stated purpose and likely
effect of the Parliamentary sovereignty clause in the EU Bill,
it is first necessary to understand, at least in outline, the
debate currently taking place among academic commentators and
some judges about what Parliamentary sovereignty in the UK really
means. The debate is relevant to our inquiry because it has a
bearing on:
— whether
to conclude that Parliamentary sovereignty is being eroded—the
concern asserted by the Government in the Explanatory Notes[17]—or
evolving;
— whether the Government is correct to
say that Parliamentary sovereignty is a "common law principle"
that can "be put on a statutory footing",[18]
described by Professor Tomkins as a matter of "great controversy";[19]
and
— whether a statutory provision derogating
from EU law, and excluding the application of the ECA, would be
enforced by the courts.
What is meant by Parliamentary
sovereignty?
23. In the light of the evidence submitted to the
inquiry we concluded, agreeing with Professor Bradley,[20]
that the term "Parliamentary sovereignty" bears a number
of meanings which can get confused. We prefer to use the term
the "legislative supremacy of Parliament" in this Report
for the reasons so clearly set out by Professor Bradley:
"Dicey's Law of the Constitution
made famous the phrase 'the sovereignty of Parliament', but a
more exact term for the legal doctrine is 'legislative supremacy',
whereby the power of the Queen-in-Parliament to legislate is subject
to no legal limitations, and the courts have no power to review
the validity of Acts of Parliament. This doctrine is always considered
to be subject to the limitation that Parliament is unable to bind
its successors (a matter to which I return briefly below). An
advantage of using the term supremacy rather than sovereignty
is that it enables the supremacy of EU law to be balanced against
the supremacy of national law."[21]
An unsettled constitution
24. The British constitution, many commentators agree,
is in a state of flux. Professor Tomkins in his evidence spoke
of a "prolonged moment of constitutional fluidity",[22]
and many of the witnesses enumerated significant constitutional
reforms that have taken place in the UK over recent years. These
include the devolution settlements, the Human Rights Act 1998
and the Constitutional Reform Act 2005, the last of which incorporated
the principle of the rule of law in statute for the first time,
and reinforced the principles of the separation of powers and
independence of the judiciary by removing the judicial powers
of Lord Chancellor and creating the Supreme Court. The 2005 Act
did not disturb the Act of Settlement 1701, however, which included
ultimate provision for Parliament to petition the Sovereign for
the removal of judges.
Acts of Parliament v the common
law
25. On one side of the debate are those who argue
that the absolute sovereignty of Parliament as understood by Dicey
remains unqualified, or at least should remain unqualified,
by recent constitutional reforms or change in judicial climate.
So Parliament can legislate however it chooses, for example to
stop judicial review by the High Court. And if it did so, the
judges would have to observe the terms of such legislation so
long as they were unambiguously expressed. As Professor Tomkins
says at paragraph 6 of his written evidence:
"What the doctrine establishes is the legal
supremacy of statute. It means that there is no source of law
higher than—i.e. more authoritative than—an Act of
Parliament. Parliament may by statute make or unmake any law,
including a law that is violative of international law or that
alters a principle of the common law. And the courts are obliged
to uphold and enforce it."
The late Lord Bingham was emphatic that judges should
be subservient to the legislative supremacy of Parliament, as
quoted here in the written evidence of Professor Tomkins:
"It has to my mind convincingly been shown
that the principle of parliamentary sovereignty has been recognised
as fundamental in this country not because the judges invented
it but because it has for centuries been accepted as such by judges
and others officially concerned in the operation of our constitutional
system. The judges did not by themselves establish the principle
and they cannot, by themselves, change it."[23]
Professor Jeffrey Goldsworthy, who submitted written
evidence[24] and whose
book on Parliamentary sovereignty was described by Lord Bingham
as "magisterial",[25]
is also a notable proponent of this view.
26. On the other side of the debate are those whose
view is that the sovereignty of Parliament is a construct of the
common law. As such it is open to revision by the courts in circumstances
where, say, a court has to reconcile contradictory statutory provisions,
or a higher law, such as a fundamental human right, is violated.
Professor Allan, who subscribes to this view, explained it as
follows:
"The nature and scope of legislative supremacy
are matters of common law in the sense that they are questions
to be resolved, necessarily, by the courts in order to determine
contested and doubtful cases. Such cases depend for correct resolution
on consideration of all the pertinent reasons. The present context,
concerning the implications of British membership of the EU, vividly
illustrates the dependence of Parliament's continuing legislative
authority on judicial interpretation of the nature of the UK legal
order, viewed as a whole.
"The Thoburn judgment provides a
good illustration of the operation of the common law constitution.
In seeking to accommodate the European doctrine of the primacy
of EU law with the supremacy of Parliament, as a matter of domestic
constitutional law, Lord Justice Laws made—or rather proposed—a
very modest change to the general rule permitting implied repeal:
it would be necessary for Parliament expressly to amend
or repeal the ECA before it could be overridden by a later statute."[26]
Professor Craig shared Professor Allan's belief that
Parliamentary sovereignty was a construct of the common law[27]
and that "it was not beyond peradventure"[28]
that the courts would disapply a statutory provision which was
violative of fundamental rights. In answer to a question from
the Chairman,[29] Professor
Craig reconfirmed his previously stated view that the legislative
supremacy of Parliament was ultimately to be decided by the courts
as being "derived from normative arguments of legal principle,
the content of which can and will vary across time". He also
reconfirmed that "on this view, there is no a priori
inexorable reason why Parliament merely because of its very existence
must be regarded as legally omnipotent", a view which he
shared with Professor Allan.
Professor Bradley expressed a "qualified belief
in Parliamentary sovereignty".[30]
Underpinning the evidence of all three witnesses was the view
that Parliament could not be supreme—that is, having the
capacity to make any law whatsoever—simply by dint of being
Parliament: a further, normative justification was required.[31]
A corollary of this view was that the courts could in extreme
cases, for example where the rule of law was infringed, disapply
the offending provision of an Act of Parliament.
The Jackson case
27. The scope of the legislative supremacy of Parliament
issue was considered by the appellate Committee of the House of
Lords in the case of Jackson v Attorney General[32]
in 2005, which concerned a challenge to the constitutional validity
of the Hunting Act 2004. Professor Tomkins commented that, although
"the case had nothing to do with EU law [...] it is the most
recent leading decision on the law of parliamentary sovereignty
[and] is directly relevant to a number of the issues raised in
the Committee's call for evidence".[33]
For this reason we cite the relevant passages from the judgements
here, and return to it in a subsequent section of the Report.
28. In Jackson three of the law lords, albeit
obiter (that is, not in relation to the question the court
was being asked to decide), suggested that in certain circumstances
the courts had inherent powers to disapply legislation.
Lord Steyn said:
"We do not in the United Kingdom have an
uncontrolled constitution as the Attorney General implausibly
asserts. In the European context the second Factortame
decision made that clear: [1991] 1 AC 603. The settlement contained
in the Scotland Act 1998 also point to a divided sovereignty.
Moreover, the European Convention on Human Rights as incorporated
into our law by the Human Rights Act, 1998, created a new legal
order. One must not assimilate the ECHR with multilateral treaties
of the traditional type. Instead it is a legal order in which
the United Kingdom assumes obligations to protect fundamental
rights, not in relation to other states, but towards all individuals
within its jurisdiction. The classic account given by Dicey of
the doctrine of the supremacy of Parliament, pure and absolute
as it was, can now be seen to be out of place in the modern United
Kingdom. Nevertheless, the supremacy of Parliament is still the
general principle of our constitution. It is a construct of the
common law. The judges created this principle. If that is so,
it is not unthinkable that circumstances could arise where the
courts may have to qualify a principle established on a different
hypothesis of constitutionalism. In exceptional circumstances
involving an attempt to abolish judicial review or the ordinary
role of the courts, the Appellate Committee of the House of Lords
or a new Supreme Court may have to consider whether this is a
constitutional fundamental which even a sovereign Parliament acting
at the behest of a complaisant House of Commons cannot abolish."[34]
Lord Hope said:
"Our constitution is dominated by the sovereignty
of Parliament. But Parliamentary sovereignty is no longer, if
it ever was, absolute. It is not uncontrolled in the sense referred
to by Lord Birkenhead LC in McCawley v The King [1920]
AC 691, 720. It is no longer right to say that its freedom to
legislate admits of no qualification whatever. Step by step, gradually
but surely, the English principle of the absolute legislative
sovereignty of Parliament which Dicey derived from Coke and Blackstone
is being qualified.
"For the most part these qualifications
are themselves the product of measures enacted by Parliament.
Part I of the European Communities Act 1972 is perhaps the prime
example. Although Parliament was careful not to say in terms that
it could not enact legislation which was in conflict with Community
law, that in practice is the effect of section 2(1) when read
with section 2(4) of that Act. The direction in section 2(1) that
Community law is to be recognised and available in law and is
to be given legal effect without further enactment, which is the
method by which the Community Treaties have been implemented,
concedes the last word in this matter to the courts. The doctrine
of the supremacy of Community law restricts the absolute authority
of Parliament to legislate as it wants in this area."[35]
And Lady Hale said:
"The concept of Parliamentary sovereignty
which has been fundamental to the constitution of England and
Wales since the 17th century (I appreciate that Scotland may have
taken a different view) means that Parliament can do anything.
The courts will, of course, decline to hold that Parliament has
interfered with fundamental rights unless it has made its intentions
crystal clear. The courts will treat with particular suspicion
(and might even reject) any attempt to subvert the rule of law
by removing governmental action affecting the rights of the individual
from all judicial scrutiny. Parliament has also, for the time
being at least, limited its own powers by the European Communities
Act 1972 and, in a different way, by the Human Rights Act 1998.
It is possible that other qualifications may emerge in due course.
In general, however, the constraints upon what Parliament can
do are political and diplomatic rather than constitutional."[36]
We note in passing that, consistent with the reasoning
of Lord Bridge in Factortame, all three judges directly
or indirectly cite the ECA as an early example of the restriction
of Parliamentary sovereignty, albeit as a result of a (voluntary)
Act of Parliament.
By contrast, Lord Bingham observed in Jackson
that:
"The bedrock of the British constitution
is, and in 1911 was, the supremacy of the Crown in Parliament.
It is, as Maurice Kay LJ observed in para 3 of his judgment, unnecessary
for present purposes to touch on the difference, if any, made
by our membership of the European Union. Then, as now, the Crown
in Parliament was unconstrained by any entrenched or codified
constitution. It could make or unmake any law it wished. Statutes,
formally enacted as Acts of Parliament, properly interpreted,
enjoyed the highest legal authority."[37]
17 Paragraph 106 of the Explanatory Notes. Back
18
Paragraphs 8 and 106 of the Explanatory Notes. Back
19
Q 106. Back
20
Ev 24. Back
21
Ibid. Back
22
Q 93. Back
23
Ev 6. Back
24
Ev 31. Back
25
Goldsworthy, Jeffrey, The Sovereignty of Parliament: History
and Philosophy (OUP, 2001). This book was followed by Parliamentary
Sovereignty: Contemporary Debates (Cambridge Studies in Constitutional
Law, CUP, 2010). Back
26
Ev 27. Back
27
Q 7. Back
28
Q 7. Back
29
Q 8. Back
30
Q 49. Back
31
Q 8. Back
32
[2006] 1 AC 262. Back
33
Ev 4. Back
34
[2006] 1 AC 262, Paragraph 102. Back
35
Ibid, Paragraphs 104 and 105. Back
36
[2006] 1 AC 262, Paragraph 159. Back
37
Paragraph 9. Back
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