Tag Archives: Parliamentary sovereignty

by Constitutional Law Group | April 2, 2013 · 2:51 pm

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

I Parliamentary sovereignty in other countries

In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court: Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011; Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa, above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives. Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state: it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics, Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a) Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn (1778) Moor 14545 (Scotland)).

b) Racial segregation (upheld by the Supreme Court in Plessy v Ferguson 163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County 391 US 430 (1968)).

c) Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d) The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e) Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f) Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g) The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h) The widespread use of the death penalty,

i) The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j) Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k) Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.

Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Judiciary, UK Parliament

Tagged as America, comparative law, constitutional review, New Zealand, Parliamentary sovereignty

by Constitutional Law Group | February 11, 2013 · 2:40 pm

Stuart Lakin: Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle

While this was probably not its primary objective at the time, the Daily Telegraph scoop on MPs’ expenses in 2008 has led to the reinvigoration of debates about Parliamentary privilege. Since then, this area of law and Parliamentary practice has hardly left the news, both mainstream and legal. We have had the Chaytor decision, the arrest of Damien Green MP, the flouting of super-injunctions by MPs, phone hacking as a possible contempt of Parliament, questions about whether certain forms of contempt of Parliament (e.g. refusing to give evidence to a Select Committee) should be enforceable by the courts, and so on. The CLG held a brilliant seminar on this topic towards the end of last year.

The latest stage of this doctrinal resurgence is a Green Paper, Parliamentary privilege Cm 8318, published at the behest of the Government in April 2012 (all references in parenthesis below will be to this Paper unless otherwise indicated). The overarching question in the Paper, in the words of David Cameron, is:

“whether the balance is right in all cases between the necessary protection afforded by privilege, and the important principle that MPs and peers should be subject wherever possible to ordinary criminal and civil laws” (para 32, quoting a letter by the PM)

The Government broadly answers that question with a ‘yes’:

“The Government believes that, notwithstanding the discrete areas discussed in this paper where there may be a case for legislative change, the boundaries of parliamentary privilege have for the most part been very clear, and its operation has not been sufficiently problematic to justify such a radical departure from the UK’s basic constitutional underpinning.” (para 39)

Among some of the more interesting recommendations (or options) for legislative change (or maintenance of the legislative status quo) are the following:

- That codification of the law on privilege is not necessary (paras 37-39)

- That the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’ in Art IX of the Bill of Rights 1689 do not need to be clarified in legislation (para 59-61 and para 80-82)

- That a general rule might be introduced disapplying privilege in cases of alleged criminality, subject to certain excepted offences “where the alleged criminal offence related closely to the principal reason for the protection of privilege” (see, generally chapter 3)

- That a ‘safeguard’ should be introduced whereby the consent of the DPP (or equivalent) is needed before evidence of ‘proceedings in parliament’ can be used in a criminal prosecution (para 141)

- That, given the Speaker’s discretion on the use of the House sub judice rules, there is no need for legislative change on civil liability (e.g. for defamation or breach of court injunctions) (para 167)

- That, given the Chaytor decision, there is no need for legislation to clarify the exclusive cognisance of Parliament (para 206-217)

Discussion

In this post, I want to make three points about the issues covered in the Green Paper (and in debates about Parliamentary privilege more generally). First, I want to say something about the nature of the privilege debate: the type of reasoning that can inform this issue. I shall suggest that both the Green Paper and the decision in Chaytor correctly approach questions about the meaning and scope of Parliamentary privilege as a matter of constitutional principle. Apologies to readers for banging the same old drum!

Secondly, I want to consider the relationship between the privilege debate and debates about Parliamentary sovereignty. I shall argue that these two debates are coterminous: they each involve competing arguments of constitutional principle about, for instance, the separation of powers, democracy, and the rule of law. Both the powers of each House of Parliament to regulate its internal workings, and the powers of Parliament to legislate, will depend on the meaning that one ascribes to these principles.

Thirdly, I shall argue that constitutional principles of the sort just described, properly understood, recommend a narrow account of Parliamentary privilege and legislative power. The undoubted democratic justification for these Parliamentary powers must always be sensitive, I shall say, to the demands of individual rights and the principle of equality before the law. Judges must be left to strike the correct balance between these principles in each given case. (For a compelling recent argument to this effect, see Sir Stephen Sedley’s recent LRB piece on privilege and superinjunctions).

I shall take these three points in turn.

A. The Nature of the Privilege Debate

What is striking as one reads the Green paper is the normative character of its reasoning. Each of the different issues for consideration are presented in terms of a range of competing principles. We could begin with David Cameron’s words (above) which refer, in substance, to the balance between Parliamentary privilege and the principle of equality before the law. Take the following additional examples:

Freedom of speech is necessary for “free and frank debate” and to “freely represent the views of [an MP’s] constituents” (para 45).

“[I]t is unsatisfactory that anyone should not know, in any given circumstance, whether the actions they are undertaking are covered by absolute privilege.” (para 51)

“Though an individual’s right to approach their MP is an essential part of the democratic process, this has to be balanced against the rights of others, including potentially the right to a fair trial and the right to privacy. Extending qualified privilege to all forms of correspondence could…undermine the rule of law” (para 73)

“It can be argued that it is wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence.” (para 94)

“The draft clauses are therefore one way in which it might be possible to balance two competing requirements – ensuring that parliamentary privilege cannot be used to evade the reach of the courts where criminality is suspected, while protecting the right of free speech and debate in Parliament by minimising any chilling effect to free speech in parliamentary proceedings.” (para 101)

“the issues [in relation to super-injunctions] are similar to a longstanding concern about anonymity injunctions and the balance between the legal and human rights of others and the ability of parliamentarians to make statements about them in proceedings under the protection of absolute privilege. (para 164)

Any lawyer could be forgiven for thinking that they were reading passages from a Lord Steyn judgment rather than a set of governmental proposals. Expressed in this way, the debate about Parliamentary privilege is rightly cast as one of constitutional principle. Where one stands on the correct balance between the principles mentioned above (and other relevant principles), will depend, in part, on one’s general theory of the correct distribution of powers between Parliament and courts. Someone who believes that representative democracy is the paramount principle in the constitution will likely defend a robust account of Parliamentary privilege, one that elevates MPs’ freedom of speech and the exclusive cognisance of Parliament, over judicially enforceable individual rights. Someone who, by contrast, believes that the rule of law and individual rights lie at the foundations of the constitution may advance a much weaker account of Parliamentary privilege. He may think that democracy must sometimes give way to those principles – or that democracy entails the judicial protection of those principles. I shall explain in the third section below why I am with those who favour the latter account.

The Chaytor decision sets the tone for the Green Paper. Throughout its judgment, the Supreme Court places the concept of Parliamentary privilege in the context of the written and unwritten principles of the constitution. The threshold question of kompetenz-kompetenz (i.e. who gets to decide on the limits of Parliamentary privilege) is a good early example. That the courts have the power to decide on the scope of Parliamentary privilege is justified by the principle that the Houses of Parliament cannot be a judge in their own cause about the extent of their own jurisdiction (see paras 14-16 of Chaytor, applying the seminal case of Stockdale v Hansard). Similarly, the key finding in Chaytor that privilege applies only to the ‘core or essential business of Parliament’ stems from the principles that justify the very purpose of the Bill of Rights 1689: the need for collective deliberation and decision-making (para 62 of Chaytor). I shall return to this reasoning about the Bill of Rights in the next section when I turn to the notion of Parliamentary sovereignty.

Two points occur about the privilege debate just described. First, the type of reasoning in both the Green Paper and Chaytor is in stark contrast to more traditional debates on this topic. One customarily finds dry, textual debates about the meaning of the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’. People compile and compare lists based on the ‘ordinary language’ meaning of those statutory phrases. And when this exercise fails (as it inevitably does), they call for the creation of a new committee to draw up further lists. The Green Paper and Chaytor decision are refreshing for their rejection of that unreflective approach. As we have seen, they each focus instead on the constitutional principles that determine whether any given form of conduct should or should not be covered by Parliamentary privilege. It is little surprise that the Government has counselled against codification of the law of privilege in the Green Paper. Beyond relatively abstract statements of principle, constitutional law simply does not lend itself to this kind of formalism (a point made very well by Forsyth and Elliott in relation to administrative law in their recent post).

Secondly, we should welcome the open-minded approach taken both by the Government and the Supreme Court towards constitutional doctrine in general. Note the following phrase in the Ministerial Forward to the Green Paper:

“[The Chaytor decision] served as a reminder that even the most durable of constitutional tenets should periodically be reviewed.”

A more elaborate way of putting this same point is as follows. The correct understanding of the British constitution must depend on a constant reassessment of how the underlying principles of the constitution – democracy, individual rights, the rule of law, the separation of powers, and so on – impact on the practices of institutions, officials and individuals.

B. Parliamentary Privilege and Parliamentary Sovereignty

The two points I have just made about the privilege debate bring me to my second argument in this post. It is that debates about Parliamentary sovereignty (i.e. the legislative powers of Parliament) should be conducted in precisely the same way as debates about Parliamentary privilege. Indeed, these two debates, I suggest, are coterminous: they revolve around the same types of principles, and they generate identical accounts of the proper scope of Parliament’s powers (or each type) vis-a-vis courts.

Before I develop this argument, let me first contrast the privilege debate described in the last section with traditional Parliamentary sovereignty debates. Where the debate about Parliamentary privilege in the Green Paper and Chaytor is principled and open-minded about the tenets of the constitution, the sovereignty debate in the UK is typically unprincipled and dogmatic (can you imagine a periodic review on the question of the whether or not Parliament is still sovereign?!) Parliamentary sovereignty, it is often contended, is just a fact about law and the constitution; it requires no justification in its defence, and no argument of principle can dislodge it from its preeminent position. This latter approach is, of course, the legacy of influential figures such as Dicey. Dicey is often lauded as the Father of the constitution, but he is really the Father – or at least one important ancestor – of a morally sterile mode of constitutional argument, one that embraces empirical observation of what ‘actually happens’ in the constitution (as if everybody agrees on this!) over normative argument about why and how different facts about the constitution are morally significant.

This blog is not the place to delve too deeply into the case for one or other of these approaches (or some other approach) to constitutional analysis. I have had a tentative go at this elsewhere. For now, I shall take my lead from the Green Paper and the Chaytor decision, and explain how the principled arguments of the Government and Supreme Court about Parliamentary privilege can be applied equally to the issue of Parliamentary sovereignty.

Our starting point is John Locke, the Glorious Revolution of 1688, and the Bill of Rights 1689. Locke’s arguments in his Second Treatise on Government are often thought to have precipitated the Glorious Revolution, or at least to have provided the ex post facto justification for it. At the heart of Locke’s argument is a repudiation of the idea of absolute authority. His immediate target was Monarchical power. But his argument against absolute authority is wider than that. It is an argument against any form of absolute authority, and an argument in support of authority limited or defined by law. Locke gives his own detailed account of the nature of those limits. Parliament (or ‘the Commonwealth’), he said, must act in a way that honours peoples’ natural rights of liberty and quality, and the fundamental law of nature (the preservation of life). But again, we should not lose sight of Locke’s bigger point. It is this: an authority only has the legal power to act in a way that accords with the principles or reasons that justify the existence of that authority (whatever those principles or reasons might be).

The Bill of Rights 1689, I suggest, is an attempt to enshrine the broad Lockean principle just stated. Art IX tells us – to put it a plainly as possible – that Parliament has the legal right to do its particular job, and that, in so far as it is doing that job, no person or body has the legal power to interfere; but Art IX also suggests that there may be a need for some other person or body to interfere if Parliament does things that are not part of its job. This is precisely the way that the Supreme Court approached the Bill of Rights in Chaytor. As noted above, Lord Phillips said, first, that Art IX should be given a “narrow ambit restricted to the important purpose for which it was enacted” (para 62 of Chaytor); and secondly, that it must be the courts that decide what that purpose is, and whether or not Parliament has acted contrary to it. Crucially, Lord Phillips’s point speaks as much to Parliamentary sovereignty as it does to Parliamentary privilege. The idea that Parliament can do anything in its legislative capacity is equally inimical to the Lockean principle as the idea that Parliamentarians are protected by privilege for any type of conduct. There is no principled basis, in my view, on which to treat these two sets of Parliamentary powers differently. (It therefore makes no sense to suggest, as the Government occasionally does in the Green Paper (e.g. para 23), that Parliamentary privilege is justified by Parliamentary sovereignty. This is entirely circular.)

Three points need to be made on the back of these conclusions. First, a clarification. I said above that the Bill of Rights 1689 enshrines the Lockean principle; it does not create that principle. In other words, even without the Bill of Rights, the powers of Parliament and courts would depend on the principles that justify the existence, role and functions of those institutions in the constitution. The need for principled justification of the powers of Parliament and courts is fundamental to the constitution; it is not something that any Act of Parliament or judicial ruling can dispense with.

That first point leads to a second. Given that Parliament’s powers arguably derive from the principle of democracy (properly understood), it is doubtful whether it even has the legislative power to control some of the issues canvassed in the Green Paper. If, as I shall argue in the next section, the principle of democracy needs to be understood in the light of individual rights and the rule of law, then some individual rights (and corresponding civil or criminal law duties) may be among the principles that define Parliament’s powers (of each type). In familiar public law parlance, certain proposals/recommendations in the Green Paper are arguably ultra vires the powers of Parliament.

That second point raises a third. The conclusion that Parliament and courts must act in accordance with the principles that justify their existence, role and functions still leaves much work to do. We need to advance arguments about which principles, understood in which way, have which effect in the constitution. There is plenty of room for disagreement on these questions. My point in this section is that these questions apply as much to the issue of Parliament’s legislative power as they do to the issue of Parliamentary privilege.

C. Parliamentary Power and the Role of Courts

And so we come to the crunch question. What are Parliament’s powers (of each type) vis-a-vis courts in the British constitution? Those who take an expansive view of the ‘core or essential business of Parliament’ rely, whether explicitly or implicitly, on a particular model of democracy, rights, the rule of law and the separation of powers. Democracy, they suppose, means that elected representatives should be free to say or do whatever is necessary to promote the collective interest. Individual rights and the principle of equality before the law must yield to that democratic imperative. The role of courts, they say, is simply to implement Parliament’s will (or to acquiesce to the different forms of conduct of MPs): judges have no legitimate power to question any aspect of Parliament’s work.

These arguments, I think, misunderstand the principles of the constitution. If democracy has any value at all, it must be that each member of a political community is treated as an equal in the way that political decisions are taken. On this understanding, democracy entails that individuals enjoy certain political rights against Parliament, rights that protect them against discriminatory or arbitrary treatment (the right not to be defamed or subjected to hate speech may well be among such rights). Closely allied to that conception of democracy is an egalitarian model of the rule of law. The legal rights and duties that flow from Parliamentary enactments or judicial decisions must be applied rigorously and consistently to institutions, officials and individuals alike. As Dicey himself said: noone is above the law. And to return to Locke: “where law ends, tyranny begins”.

These understandings of democracy, rights and the rule of law recommend a narrow account of Parliamentary privilege and Parliamentary legislative power (or perhaps even the negation of the former). Whether or not an individual MP, or Parliament as a legislature has the power act in a given way must depend on how that form of action impacts on individual rights. Only exceptionally, if ever, can the interests of the many override these rights. What concrete implications do these arguments of principle have for the questions raised in the Green Paper? To take the central question of the Paper, I do not think that MPs should enjoy blanket protection against any form of criminal or civil liability. Much is made in the Green Paper (and elsewhere) of the ‘chilling effect‘ on MPs of potential liability (para 100); but an MP’s licence to operate outside the law, I suggest, is a far more chilling prospect. A judgment must be made in each case on whether MPs have acted lawfully or not. For example, MPs should be free to debate hate speech, but not to engage in hate speech (see para 118-119). The criminal law concept of mens rea should apply in Parliament as everywhere else.

What, then is the role of courts. Should Parliament itself have the power to punish/prevent the infringement of individual rights through its contempt jurisdiction (and should Parliament have the power to determine the legality of its own enactments); or should courts have this power? The answer, I think, is clear for at least two reasons. First, Parliament cannot be a judge in its own cause about the legality of its Members’ conduct, or the legality of its own enactments. An independent branch of government must perform this role (can Chaytor be read as a British Marbury v Madison?) Secondly, specifically in relation to privilege, for Parliament itself to exercise coercive powers, and impose coercive penalties and punishments would surely fall foul of ECHR art 6 and its common law equivalent. If Parliament was once the ‘High Court’ of Parliament, that is manifestly no longer the case.

Stuart Lakin is a Lecturer in Law at the University of Reading

Suggested citation: S. Lakin ‘Parliamentary privilege, Parliamentary sovereignty, and Constitutional Principle’ UK Const. L. Blog (11^th February 2013) (available at http://ukconstitutionallaw.org)

Mike Gordon: What is the Point of Exceptional Circumstances Review?

A great deal of the controversy surrounding the recent case of Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, already much discussed on this blog, stems from the notion of ‘exceptional circumstances review’. The Supreme Court’s decision that it has the authority as a matter of common law to reject Acts of the Scottish Parliament (ASPs) in exceptional circumstances raises a range of important constitutional questions: is the Supreme Court’s interpretation of the Scotland Act 1998, and in particular section 29, compelling, or could the legislation be read to exhaust the possibility of common law limits on ASPs? Is it normatively attractive for courts to arrogate to themselves the final say over the constitutionality of legislation enacted by a democratic legislature? Is the power outlined by the Supreme Court in Axa only effective against the primary legislation enacted by devolved legislatures, or is the sovereignty of the UK Parliament also now threatened?

Doubtlessly other critical questions can also be identified, and yet, as important as these issues are, this post will focus on a more general matter. Is the very notion of exceptional circumstances review, detached from some of the particularities of the UK constitution, a useful one? Such an approach seems appropriate in light of Lord Hope’s comments in Axa that in developing such a power, the Supreme Court was in ‘uncharted territory’, with the issue therefore having ‘to be addressed as one of principle’ [48].

It might initially be objected that the point of exceptional circumstances review is obvious – it serves to prevent gravely iniquitous legislation from being recognised as law – rendering further reflection on its purpose essentially redundant. Yet while we may all agree that the avoidance of bad law is a worthwhile objective, it is not at all clear that giving courts the authority to review legislation in exceptional circumstances is an effective way to achieve it. Two particular issues with the concept can be discerned.

1) What circumstances count as exceptional?

The very notion of exceptional circumstances is inherently vague, offering little indication as to the scope or content of the power claimed. Even if we accept that such a power would be exercised only in genuinely exceptional situations (although as Jeffrey Goldsworthy and Mark Tushnet have both argued, it is in the nature of courts to seek to test the boundaries of a power once obtained, and in so doing expand its scope beyond what was originally envisaged), we will necessarily be reliant on judicial evaluations of exceptionality. And while such judgments may well be contestable, perhaps the bigger problem is that they are likely to be difficult to predict.

If we return to Axa for a moment, the consideration there given to exceptional circumstances offers sparse guidance as to the situations in which the Supreme Court’s new authority will be invoked. The rule of law is cited by both Lord Hope [51] and Lord Reed [149] as constituting the ‘ultimate controlling factor’ at the root of the court’s new power, but the deployment of such a disputed, fluid concept only serves to amplify, rather than cure, the already conspicuous uncertainty. An alternative (or perhaps complementary?) foundation suggested by both judges is that of fundamental individual rights, yet even if an account of such rights could be agreed, little clarity is gained unless we can also establish the level of interference that will be unjustifiable.

Beyond Axa, other immutable values that require absolute protection might also be identified; Lord Steyn, for example, argues in R. (Jackson) v Attorney General [2005] UKHL 56 that ‘oppressive and wholly undemocratic legislation’ could not be tolerated [102]. Yet the difficulty persists in relation to this formulation too, for the truly critical problem is not in identifying appropriate abstract values, but that those values must remain abstract to attract broad acceptance. Indeed, it is when we come to differentiate between those violations of the rule of law, or fundamental rights, or democracy that are tolerable, and those that are exceptionally intolerable, that consensus is liable to break down, with the corollary that the likelihood of judicial intervention becomes hard to foresee.

The uncertainty inherent in determining what is an exceptional violation of constitutional principle makes this power remote from ordinary citizens and inadequate for political decision-makers. Citizens will find it a challenge to determine whether legislation that offends their conception of justice will be similarly received by the judiciary, making a decision to seek judicial review fraught with complexity. Legislators and officials will glean little useful guidance as to how they should properly exercise their power from the underdeveloped premise that flawed legislation may be exceptionally struck down. And with so little which is clear and certain settled in advance, any judicial decision to exercise, or not to exercise, this authority may appear arbitrary to aggrieved parties. There is therefore little to recommend the cultivation of a power of exceptional circumstances review over the protection of fundamental values through some variety of Bill of Rights, regardless of how imperfect we might believe such rights instruments to be.

2) Is this a legal power at all?

One potential response to what has been argued above is that such a power to reject legislation should only be used where there is no uncertainty. The judicial exercise of such a power would, in other words, be justified where there existed comprehensive agreement as to the exceptional deficiency of some specific legislative act. But how, in practice, would it ever be possible for the circumstances of such agreement to be satisfactorily established?

We might then, in contrast, question whether such a power which can only be imprecisely formulated is really a legal power at all. This is not to claim that such a vague power is conceptually incapable of being considered legal, but to query whether the Supreme Court has actually articulated exceptional circumstances review as a legal doctrine. It seems clear that this is a power designed not to be used. It would be extremely difficult for courts to settle definitively the kind of constitutional crises in which an exceptional power to reject legislation could conceivably be invoked. Would we really seek to challenge a genuinely fundamental repudiation of constitutional values through litigation? Even if an expedited means of bringing legal proceedings were available, courts are simply not equipped to prevail over other institutions of government in brute constitutional conflicts, and would be unlikely to be able to provide any effective relief in times of severe political strife. While this power remains unused, however, it also goes essentially unchallenged, and maintains a degree of relevance in constitutional discourse, even if this is only notional.

It might, then, be better to understand judicial assertions about exceptional circumstances review as an emanation of inter-institutional manoeuvring, rather than a claim about the power of the courts under the present constitutional order to reject legislative acts in crisis situations. Courts as institutions lack a formal outlet through which they can encourage the legislature, or the government that controls it, to take rights, or the rule of law, or democracy, seriously. Yet it is possible for the courts to communicate with the other institutions of government through their reported judgments, and a threat to establish a supervisory jurisdiction over legislative functions could be seen to have a similar effect as such encouragement. In light of this, it is perhaps significant that the only specific example of exceptional circumstances offered both in Axa [51] and Jackson [102] is legislative action to oust or abolish the courts’ ordinary power of judicial review over administrative action, with the notion of the rule of law arguably used here as a conduit to protect the judges’ jurisdiction against encroachment by other institutions. A court may purport, therefore, to be developing a jurisdiction to reject legislation in extreme situations, yet we can make sense of such endeavours without concluding that this is a power they do in fact possess as a matter of constitutional law.

Yet if judicial claims about the potential for exceptional circumstances review are simply a means of reemphasising the importance of a number of fundamental constitutional values to the other institutions of government, are they really of any great interest? After all, when it is considered that these fundamental principles must already underpin the existing constitutional settlement, and be embedded to a substantial extent in constitutional practice, the judicial reiteration of their significance may appear to be a rather banal message, in contrast with the controversial means of its delivery. Further, given the abstraction necessarily involved in their formulation, the invocation of such elementary principles, devoid of critical detail, will do little to assist with the resolution of the sort of difficult constitutional questions which must be confronted in mundane, as well as exceptional, situations.

What then, we might wonder, is the point of exceptional circumstances review?

Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

1 Comment

Filed under Judiciary, UK Parliament

Tagged as Axa Insurance, constitutional review, Exceptional Circumstances Review, Jackson, Parliamentary sovereignty

by Constitutional Law Group | June 15, 2012 · 12:44 pm

Cormac Mac Amhlaigh: W(h)ither Sovereignty?

Harbingers of the demise of sovereignty are not new. At least since Karl Marx prophesized the withering away of the state, the heralding of the end of sovereignty has been an almost recurrent theme in political theory. In recent times, however, these prophecies have become increasingly insistent and have, perhaps for the first time, emanated predominately from the field of public law. In the European context, the debate about whether and to what extent EU membership compromises state sovereignty has been a central preoccupation of scholars of European integration for a generation, a debate which has intensified in the aftermath of the Euro crisis. In the U.K., a host of developments, both European and domestic, continue to fuel the discussion as to whether Parliament is indeed still sovereign, a notable recent catalyst being the ECtHR’s role in clipping Parliament’s wings over issues such as immigration and prisoner voting.

The concept of sovereignty, including its institutional expression in parliament in the UK constitution, provides part of the deep grammar of public law. Thus for public lawyers, the question of the fate of sovereignty is of central concern to our discipline. However, if it is a commonplace that sovereignty is somehow affected by recent political developments, what is less clear, is how. Logically speaking there are three possible answers to this question: sovereignty hasn’t changed, is undergoing a slow and steady demise or is evolving and adapting to new realities. Holders of the no-change position have disputed that sovereignty has changed at all. They rely on Schmittian scenarios of unilateral Member state withdrawal from the EU, or repeal of the various ‘constitutional statutes’ of which a substantial part of the UK constitution is apparently made, if for no other reason than to allow Parliament to flex its sovereign muscle, to argue their case. Others dispute the continuing relevance of sovereignty to the contemporary world, seeing demise as the only possibility. Given the supposedly categorical nature of the concept – either you have it or your don’t – then the notion of sovereignty evolving rather than simply being surrendered doesn’t make sense, and so we must get used to our new post-sovereign realities, recalibrating our practices, including public law, accordingly.

An emerging more nuanced view is that sovereignty is indeed evolving but not to such an extent that it is no longer relevant. This ‘late sovereignty’ position holds that the concept still retains its purchase on law and politics, both domestic and supranational, but that its has evolved from the Westphalian paradigm of hermetically sealed sovereign states to incorporate transnational actors such as the EU and ECtHR and their influence on domestic public law. This evolution denotes a change in the nature of sovereignty claims from categorical to more relative claims of authority such that simultaneous sovereignty claims, both national and supranational, are not incommensurable.

This more nuanced account which views sovereignty in phases from early, high to late forms, implicitly relies on a conception of sovereignty which is flexible and context-specific, rather than immutable and rigid meaning the same thing in all times and places.

As the grammar of public law, the concept of sovereignty entails a series of rules governing the idea of ultimate authority in legal and political practice providing the ground rules of ‘sovereignty games’. The constitutive rules of sovereignty games constitute the actors participating in the game, that is those agents which makes ultimate authority claims, as well as providing the primary indicator that a particular ‘game’ is being played – that a sovereignty game and not some other sort of game, such as post-sovereignty, is being played. The regulative rules provide standards against which to measure how well the game is played and as such provide criterion for what constitutes a ‘good’ or legitimate claim to ultimate authority. It is the evolution of this grammar, the constitutive and regulative rules of sovereignty games, which mark the passage from high to late sovereignty.

The rules of sovereignty games played during the high sovereignty era, then, were played primarily by sovereign states, making claims to ultimate authority over a territory and people (the constitutive rules of high sovereignty), justified according to notions of constituent power, popular sovereignty, divine right or even mere convention (the regulative rules of high sovereignty). In late sovereignty games, the grammar has evolved such that the constitutive rules of late sovereignty games relate not, or not exclusively, to territory and people, but to functional domains such as trade, the environment or human rights. Furthermore the constitutive rules of late sovereignty games imply that the actors making such claims to ultimate authority no longer fit the mould of the sovereign state. Thus, the EU makes claims to ultimate authority over certain sectorally defined functions without being, or claiming to be, a sovereign state.

The regulative rules of late sovereignty games, that is, the criteria for what constitutes a ‘good’ sovereignty claim, have also evolved. First of all, the repertoire of reasons that count as ‘good’ or legitimate claims to ultimate authority has expanded beyond those of high sovereignty. For example, the justification of ultimate authority claims by the EU over specific functional domains does not rely on constituent power or popular sovereignty, the reason of choice in the high sovereignty era, but rather on grounds of functional necessity. Thus, the paradigmatic EU late sovereignty claim, the claim to the primacy of EU law by the ECJ, was justified, not according to the will of a European people(s) but with reference to the need to achieve the objectives and aims of the EU Treaties. In this way, the reasons which justify and legitimate late sovereignty claims have expanded beyond popular sovereignty to include what Fritz Scharpf has called ‘output legitimacy’.

Moreover, conventional justifications of ultimate authority in particular contexts have also shifted in the era of late sovereignty. Whereas the vestiges of high sovereignty are still traceable in the sovereignty claims of EU Member states, they are arguably not unaffected by the transition from high to late sovereignty in Europe. This is because the conventional justification for sovereignty in a specific national context in the high sovereignty period no longer provides the justification for national sovereignty in late sovereignty. Two examples of recent EU Member state sovereignty claims serve to illustrate this point; the German Federal Constitutional Courts (GFCC) Lisbon decision and the UK Parliament’s European Union Act 2011, both of which have received attention in previous posts on this blog.

In June 2009, the GFCC handed down its decision on a challenge to German ratification of the Lisbon Treaty of 2008 finding that such ratification would not per se violate the German constitution. Significantly, the Court found that, notwithstanding the constitution’s ‘openess’ to European integration, that there were absolute limits on the level of integration possible under the German constitution. The rationale for this conclusion was based on a strong assertion of German sovereignty, references to which were littered throughout the judgment. In particular the court justified German sovereignty according to the principles of constituent power, popular sovereignty and the self-determination of the German people which created a particularly robust constitutional identity reflected in the provisions of the German constitution. This identity set absolute limits to the level of integration possible under the constitution. Nothing, not even the constitutions ‘openess’ to European integration, could undermine this identity.

Similarly, the European Union Act of 2011, can be read to entail sovereignty claims on behalf of the UK vis-à-vis European integration. In particular two features stand out in this regard, the s. 18 ‘sovereignty clause’ which states that EU law falls to be recognised and available in law in the United Kingdom only by virtue of Acts of Parliament as well as the various ‘referendum locks’ triggering a referendum inter alia whenever further powers are transferred to Brussels. In terms of justifications of these claims to UK sovereignty, the sovereignty clause has been justified according to nebulous references to the common law’s recognition of Parliamentary sovereignty, whereas the referendum locks are implicitly invoking the will of the people and theories of popular sovereignty and constituent power.

On an initial reading, these assertions of national sovereignty by Germany and the U.K. are unremarkable. They seem to be rather typical assertions of national state sovereignty according to the classic tropes of high sovereignty games. A closer reading, however, shows that given the context within which they were made, are better understood as forms of late sovereignty claims prompted by the process of European integration.

Firstly, with respect to the GFCC’s Lisbon decision, the assertion of German sovereignty based on the people and a German constituent power marks a shift from the conventional justifications of German state sovereignty in the post-war era. In the reconstruction of post-war Germany, and particularly in the drafting of the new constitution, the previously unhappy experiences with popular sovereignty based on a constituent power were suppressed in favour of a strong assertion of the rule of law and the supremacy of the constitution over the political process, which was instrumentalized by a powerful Constitutional Court which frequently undid the will of Parliament. As Christoph Mollers has argued, this was copper-fastened in the basic law itself through an absolute prohibition on the holding of referendums or plebiscites. It was also explicitly recognized by the GFCC itself in the Lisbon decision where it found that:

‘The [post-war constitution] … breaks with all forms of political Machiavellianism and with a rigid concept of sovereignty which until the beginning of the 20^th century regarded the right to wage war – even a war of aggression – as a right due to sovereign state as a matter of course’ (para. 199).

Thus, the post-war German constitutional landscape was marked by a ‘constitutional patriotism’ crystallizing around the constitution and the rule of law rather than strong assertions of popular sovereignty or constituent power. Against this background the justificatory claims of German sovereignty in the Lisbon decision, mark a shift from the constitutional patriotism which has underpinned and justified German sovereignty in the post-war era in the light of the integration experience to an assertion of constituent power and popular sovereignty in the late sovereign period. Similarly in the UK, the sovereignty clause and the referendum locks in the European Union Act 2011 mark a shift in conventional justifications of UK sovereignty. Conventionally, UK Parliamentary sovereignty was, as Wade argued, justified according to its social ‘facticity’ rather than by references to the common law as the Ministerial statements surrounding the sovereignty clause seem to suggest (and the Courts have recently supported with gusto). More strikingly, perhaps, however is the novel justification of UK sovereignty, not based on Parliamentary sovereignty, but by reference to popular sovereignty based on a constituent power as evidenced in the referendum locks. As Martin Loughlin has argued, the idea of a constituent power is almost completely alien to modern British constitutional practice. Thus, this shift in the justifications of national sovereignty in Germany and the UK in the face of European integration qualify these claims as ‘late’ rather than ‘high’ sovereignty claims.

Sovereignty is still prevalent in our political vocabulary and is still providing the grammar of the practices of public law. However, if we scrape beneath the surface, we can see how the grammar of this constitutive concept is itself subtly evolving. This evolution is essential for understanding constitutional change in the contemporary world.

Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.

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Filed under European Union, UK Parliament

Tagged as European Union Act 2011, Lisbon Case, Parliamentary sovereignty, Relationship Between European and National Law, Sovereignty

by Constitutional Law Group | June 13, 2012 · 9:17 am

Stuart Lakin: How to Defend a Theory of the British Constitution

In two recent contributions to this blog, Professors Goldsworthy and Oliver have put forward two quite different bases for Parliament having sovereign power (and for courts not having the power to strike down legislation). For Goldsworthy, Parliamentary sovereignty is a fact about the constitution: it reflects the beliefs of most officials about the power of Parliament vis-a-vis courts. For Oliver, by contrast, Parliamentary sovereignty is a pragmatic necessity based on the practical need for mutual respect or comity between Parliament and courts

Which, if either, of these accounts is correct? In this post, I want to say something about how to answer that question. The topic, we might say, is constitutional methodology. My aims are twofold. First, I want to introduce this topic and some of the problems it throws up. Secondly, I want to offer an outline defence of one particular method of doing constitutional theory. I shall suggest after Ronald Dworkin that the theories of Goldsworthy and Oliver (along with every other theory of the constitution) must be understood as rival interpretations of British constitutional history and practice. A theory is correct, I shall say, if it provides the most morally appealing interpretation of the constitution.

Constitutional Methodology: Some Issues and Problems

Public lawyers disagree about many aspects of the constitution. They disagree, for instance, about whether, or in what sense, parliament is sovereign. They disagree about whether judges have the power to invalidate statutes. They disagree about the nature of the judicial role in judicial review proceedings. And they disagree about whether individuals have rights that cannot be removed by parliament. What is sometimes less obvious is that public lawyers also disagree about how to answer those types of questions. They disagree, that is, about what makes it the case that parliament has absolute legislative powers, or that parliament’s powers are limited by judicially enforceable legal rights and principles, or that some other distribution of rights, duties and powers obtains in the constitution.

Here are just three of the different constitutional methods that one can detect in the public law literature, beginning with an elaboration on the work of Goldsworthy and Oliver (above).

1. Goldsworthy implies in his work that constitutional theory is descriptive and morally-neutral in character. Parliament is sovereign, he says, because this is what most officials accept (i.e. say, believe, or otherwise practice). It is the Hartian ‘rule of recognition’ in the constitution. Whether Parliamentary sovereignty is morally acceptable is irrelevant to its existence. Those theorists who argue for a judicial strike-down power, he says, are simply making a factual mistake about the practice of officials.

2. Oliver argues in her work that constitutional theory involves a pragmatic (non-principled)judgement about what works in the constitution. The reason that Parliament is sovereign, and that judges respect that sovereignty, she says, is that a range of undesirable consequences would flow from any attempt by judges to upset that arrangement (e.g. damage to the reputation of the courts, institutional gridlock). A distinction has to be made, Oliver contends, between the theoretical/principled case for judges having a strike-down power and the practical workability of them having such a power.

3. For theorists such as Allan, Jowell, Craig and Laws, constitutional theory is thoroughly normative in character. The legislative powers of Parliament, and the adjudicative powers of judges, they argue, depend on the moral principles that justify those powers. It follows that if Parliament possesses absolute legislative power, there must be a compelling moral basis for such power. Allan, in particular, contends that there is no plausible justification for Parliamentary sovereignty. A more convincing moral reading of the constitution, he says, points to a theory of liberal constitutionalism and ‘strong’ judicial review.

Even taking this very small sample of different approaches to constitutional theory, it is not difficult to see the potential for confusion. If different theorists are using different methods to identify the powers of Parliament and courts, then their disagreements suddenly look rather futile. Indeed, it might be said that they are not disagreeing at all: that they are talking past each other or pursuing different projects. We can reinforce that gloomy diagnosis by imagining the following dialogue between Goldsworthy and Allan:

G - Parliament is sovereign because this is what most officials accept.

A - It doesn’t matter what most officials accept. My constitutional method does not depend on acceptance by officials, but on the normative justification for the legal powers of institutions. Parliamentary sovereignty cannot be justified. The principles of the rule of law and the separation of powers demand that judges have the power to invalidate legislation.

G – You are making a factual mistake. For centuries, judges and theorists have denied that judges can strike down legislation.

A – That may be so, but what judges and theorists accept, or have historically accepted, may diverge from the true normative powers of institutions.

G and A – (Audible sigh)

There is clearly something deeply unsatisfactory about this imaginary exchange. Each theorist begins their analysis in a different place: one begins their analysis with acceptance; the other begins with justification (incidentally, this is precisely the way that I read the actual exchanges between Goldsworthy and Allan). Is there any hope of resolving such a fundamental difference in approach? Before I attempt to provide a positive response to that question, let me first consider a possible negative response.

It may be that some constitutional theorists, at least, are indeed pursuing different projects. Goldsworthy and Allan (along with most other constitutional theorists, we can suppose) seem to be interested in identifying the true rights, duties and powers of institutions and individuals in the British constitution. In other words, they are trying to offer a theory of the normative effects of British constitutional practice. Other theorists seem to be less interested in, or less sympathetic to, that project. For political constitutionalists such as Bellamy, constitutional theory involves constructing an ideal model of the relationship between Parliament and courts. The theory of Parliamentary sovereignty, he implies, may or may not reflect the prevailing balance of power in the constitution, but it is the theory that approximates most closely to the ideals of political constitutionalism. In a different vein, Griffith can be read as bringing the perspective of a political scientist to constitution analysis. His interest is in the realpolitik of the constitution (i.e. where the sources of brute power can be found). Thus, it is the Government rather than Parliament, he says, that possesses sovereign power (perhaps it would be Rupert Murdoch or Tesco today…). There are hints of Griffith’s approach in the work of Oliver (above). By her claim that there is a gap between the reality of institutional powers in the constitution and the (normative) theory of those powers, Oliver is perhaps similarly attempting to offer the descriptive view of a political scientist rather than the normative view of a constitutional theorist. I shall resist that reading of Oliver in the section that follows.

Interpreting the British Constitution

I now want to offer a positive response to the question that I posed above (viz. is there any hope of resolving the fundamental difference in approach taken, for instance, by Allan and Goldsworthy?) Let me first try to sharpen the inquiry a bit. Our interest is in whether theorists who seem to employ very different methods of constitutional analysis (as illustrated in 1-3 above) can intelligibly disagree with each other. At the same time, we want to be in a position to say that one theory of the constitution provides the correct theory, or a better theory than some other theory. The object of the inquiry, then, is to arrive at some common framework, or some common measure of success for all theories of the constitution. It is the interpretive approach mentioned at the start of this blog item that, I think, holds the key to this ambition.

Rather than attempt a long and detailed exposition of Dworkin’s interpretive approach, let me spell out as plainly as possible a) how I think this approach makes disagreement between Goldsworthy, Oliver and Allan possible; and b) how, according to this approach, one of these theories can potentially provide the correct understanding of the constitution.

In answer to a), the level at which the disagreement between Goldsworthy, Oliver and Allan can take place must be more abstract than we have so far considered. In the imaginary dialogue above, both Goldsworthy and Allan make arguments that are internal to their preferred constitutional method: Goldsworthy argues on an empirical level about official acceptance, while Allan argues on a normative level about how to justify institutional powers. The real disagreement between Goldsworthy and Allan, I suggest, concerns the deeper question of why the powers of Parliament and courts should depend either on empirical argument or normative justification (or, to include Oliver’s approach, pragmatic judgment). These are rival approaches to constitutional analysis which each require a positive argument in their favour. Goldsworthy must explain why acceptance by officials is the decisive factor; Oliver must explain why pragmatic judgment is the decisive factor; and Allan must explain why moral justification is the decisive factor. By extension, each theorist must try to show why the factors identified by other theorists are erroneous.

This brings us to b). It will be tempting for some theorists to claim that their favoured method of constitutional analysis is descriptively correct: that their method is not so much a theory as a factual statement of the way the constitution works. This recalls the claims made by Griffith (and perhaps Oliver) above. It also recalls the way that Herbert Hart sought to characterise his approach to legal theory (it is not altogether clear to me whether Goldsworthy endorses that characterisation). Unfortunately, such a descriptive claim is doomed to fail. Every theorist presumably believes that his or her method provides the correct understanding of the constitution, and that other methods provide an inferior understanding. Every method identifies particular facts, features or standards of constitutional practice as representing the reality of the constitution. There is no way that any theorist can stand above or outside these mainstream debates. They must defend their method with arguments like every other theorist. That defence, I suggest, can only be an interpretive (or justificatory) one. Each theorist must attempt to show that their preferred method provides the most morally appealing interpretation of British constitutional history and practice.

These responses to a) and b) now require some unpacking. What exactly does an interpretive defence of any particular constitutional method involve? Goldsworthy, Oliver and Allan (along with all other constitutional theorists), I suggest, must show two things at once. They must first show that their preferred method has independent moral appeal as an account of law, government and the state. If a theorist relies on (or presupposes) a defective general legal and political theory, then we can almost certainly discount their theory as a viable account of the constitution. Secondly, assuming that their underlying legal and political theories are sound, a theorist must then show that their preferred method is capable of making sense of the salient facts and features of British constitutional practice. In other words, they must show that they are advancing, not a Utopian theory, but a theory of the particular constitutional practices and traditions in Britain.

What might an interpretive defence of the methods of Goldsworthy, Oliver and Allan look like?

Goldsworthy’s argument might (and, in part, does) go something like this. That the powers of Parliament and courts depend on a consensus of acceptance among officials can be justified by such values as certainty, clarity and constitutional stability. If members of each branch of government must agree to the powers of Parliament and courts, then the risk of a constitutional crisis is minimal. Neither Parliament nor courts can unilaterally unsettle the system. A theory based on official consensus also fits the day-to-day practice of judges and officials. Judges give effect only to the clear meaning of statutory text or to clear rules contained in previous judgments. There is no sense in which judges make moral judgments either about the proper powers of institutions or about the substantive content of the law.

Oliver’s argument might go something like this. That the powers of Parliament and courts depend on pragmatic, all things considered judgments can be justified by the values of comity and mutual respect. If courts and Parliament do not trample on each other’s territory, then things will work out better in the long run. Courts will maintain their authority, and there is less scope for a clash between branches of government. A theory based on comity and respect fits the day-to-day practice of courts and officials. Judges frequently defer to the opinion of officials, and they suppress any thought of striking down legislation. Likewise, Parliament and the Government generally refrain from criticising judges or judgments.

Allan’s argument goes something like this. That the powers of Parliament and courts depend on moral principles can be justified by values such as integrity, equality and a range of basic liberties. The very point of law and government is to ensure that people are treated in accordance with these fundamental principles. It follows that the state does not have the power to act in a way that contravenes such principles. A theory based on moral values and principles fits the democratic structures of government. It also fits the way in which judges bring arguments of constitutional principle to their adjudicative task.

These are merely sketches of what an interpretive defence of these different constitutional methods might look like. The crucial point to note for our purposes is how each theorist must go about defending their constitutional method and the theory they derive from it, and how they must go about attacking other methods and theories. Constitutional theory, I have suggested (at greater length than I initially hoped), must be interpretive (rather than descriptive, conceptual, logical or whatever).

Stuart Lakin is a Lecturer in Law at the University of Reading

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Filed under Judiciary, UK Parliament

Tagged as Constitutional Theory, Courts and Parliament, Parliamentary sovereignty

by Constitutional Law Group | May 3, 2012 · 6:13 pm

Dawn Oliver: Parliamentary Sovereignty: A Pragmatic or Principled Doctrine?

Imagine that Parliament has recently passed a provision authorising the indefinite detention without trial of suspected terrorists. The measure was passed during a public panic about terrorism. Public opinion and the press and parliamentarians of the party in government which promoted the legislation were strongly in favour of using such powers. The Home Secretary orders the detention under that provision of suspect A. A applies to the court for release on the ground that the provision in the Act is contrary to fundamental common law principles and the European Convention on Human Rights. The court finds that the Act is indeed defective in these ways, that compliance by state bodies with fundamental common law principles and the ECHR is a requirement of the rule of law (as it is understood by the courts), a constitutional principle which binds all bodies including Parliament. The court orders the minister to rescind his order for the detention of A and orders the prison governor to release A.

What would happen if the minister refused to obey the court order? It would be easy to reply: ‘The minister would be committed for contempt of court if he refused to release or order the release of the suspect, of course’, implying that this is an obvious answer to an obviously stupid question. But the implications of such a finding for the relationships between politicians and the courts need to be thought through before such an answer is accepted.

Our system, particularly because we lack a written constitution which is considered by the institutions of government and by the public to legitimate such activities of the courts, depends for its working in part upon mutual respect between institutions, particularly between the courts on the one hand and Parliament and executive bodies on the other. Lord Carswell had this in mind in his speech in the Jackson case when he referred to the mutual respect which has long existed between the legislature and the courts, and he expressed reluctance to endanger that tradition.

According to M v Home Office, a court might, having made an order which a minister disobeyed, just declare the minister to be in contempt. A mere declaration would not do the court’s authority any good at all in this hypothetical situation. It is unlikely that the press or the members of the House of Commons would take the court’s side and press the government to respond positively to the declaration. If the declaration were ignored, the lesson that the executive learned would be that it can get away with such responses to the courts. Would we want that?

Alternatively the court could commit the Home Secretary to prison for contempt. The Minister of Justice might then order the prison governor to release the Home Secretary on the basis that it was unconstitutional, anti-democratic and unlawful – a breach of the rule of law as understood by politicians – for the court to refuse to give effect to an Act of Parliament. The prison governor might obey the Minister of Justice and release the Home Secretary while continuing to detain A, and so himself be committed for contempt, along with the Minister of Justice. The battle would continue, with press and public opinion probably behind the ministers.

So such a court order might turn out not to be practically enforceable if resisted by government on the ground that it was not legitimate for the courts to change the law unilaterally in such a way. Or, if the order was enforced, the backlash might be that Parliament legislates to politicise the judicial appointment system, the courts could then be packed with judges sympathetic to the government, the Court Service could come under ministerial directions as to the deployment of judges and the listing of cases so as to ensure that ‘unreliable’ judges did not sit on certain kinds of case, ouster clauses could become commonplace. And so on. I think the courts would be defeated, and in the end the Supreme Court would exercise its power under the Practice Statement of 1966 to reverse its position and reinstate the doctrine of parliamentary supremacy. But by then untold damage would have been done to the respect in which the courts are held in government, in Parliament and by the general public and to good relations between those institutions. The rule of law itself (as generally understood in legal circles) would have been weakened. The culture would have changed.

The relationship between the executive and the courts in the UK, lacking as it does a written constitution which defines that relationship, depends upon reciprocity, trust, cooperation – the basic elements of human social interaction. Any system of government involves such interaction. If those collapse then the very constitutional system itself might collapse into recurring conflicts between the courts and the executive, tit for tat battles, ostracism of the courts by ministers, and mistrust. It is by no means certain that the rule of law would win over politics and parliamentary supremacy in such a situation.

But, you will be thinking, surely this hypothetical is fanciful: normally ministers do obey court orders. Yes – and that is part of the culture of the rule of law. But if the courts were to challenge parliamentary supremacy, ministers would be able to invoke a whole lot of arguments in support of their refusal to obey the court, arguments which do not apply in relation to other cases – democracy, separation of powers, etc. Indeed it is likely that there would be a great hue and cry against the courts not only from the government, but from MPs, the press and the public. In my view therefore it could well be extremely unwise, damaging to the authority of the judiciary and the rule of law itself and to the stability of our constitutional arrangements, and counter- productive for the courts to strike down a provision in an Act, however much it is contrary to some of the elements of the rule of law and other constitutional ‘principles’. Bear in mind that the duties of judges are not limited to upholding individuals’ rights. They include ensuring the practical working of constitutional arrangements, for instance relationships with the EU and between the UK and devolved bodies, which in turn facilitate the rule of law. There are in other words respectable consequentialist reasons for judges in the UK accepting parliamentary sovereignty and holding back from making judgments that might be impossible to enforce against the executive in such a nuclear option situation, especially when we take into account the non-legal environment in which government and Parliament operate in the UK and which uphold constitutional principles.

So in my view a ‘principle’ that the rule of law is the controlling principle and might entitle courts to disapply statutory provisions – as Lord Hope indicated in Jackson – would come up against the typical, pragmatic and wise English response: that is all very well in principle and theory, but what about the practice? The practice of striking down legislation in our unwritten constitution and constitutional culture would not work.

Thus I suggest that an important rationale for the British courts’ recognition of Acts of Parliament as the highest form of law is based in comity between institutions and workability: pragmatic principles established over centuries that the courts will refrain from questioning the legal validity of Acts passed by the UK Parliament, and members of the two Houses of Parliament will respect the courts and their decisions and will not seek to undermine them and the rule of law.

I suspect therefore that the dominant though unarticulated reason why courts in the UK accept parliamentary sovereignty is that it represents a way of avoiding a conflict between the courts and the executive which the courts could not win. It could well be different if the UK had a written Constitution which mandated the courts to refuse to give effect to ‘unconstitutional’ laws. But that is not the current position.

This is not something that the judges, or others as far as I know, have discussed publicly. But Lord Justice Stephen Sedley had the following to say in his LRB review of Vernon Bogdanor’s book The New British Constitution (2009).

‘…what would happen in real life if the higher courts treated … a withdrawal of their jurisdiction [by a provision in an Act which ousted judicial review of a tribunal’s decisions on asylum claims] as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out’.

Sedley discussed the issue again in Ashes and Sparks (2011). Commenting on what would have happened if the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill had been passed, if the courts had refused to give effect to it, and if the Home Secretary had been found to be in contempt for disobeying their order, he wrote:

‘And then? There would be no winner, no famous victory even, in such a confrontation. Even so …. it was not necessarily a bad thing that [the proposed ouster clause] had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place’.

Interestingly, in relation to our close constitutional cousin, New Zealand, Matthew Palmer has recently written that:

‘Institutionally, over the long term and particularly in New Zealand, the independence of the judiciary depends on the forbearance of the political branches of government. Cabinet and Parliament have the formal tools available in New Zealand’s constitution to undermine the independence of the judiciary if they wished: through appointments, dismissals, under-resourcing or restructuring various benches.’

Palmer suggests that the approach of parliamentarians is based in part on the high standing of the judiciary in public opinion; that standing could be damaged by a series of negative public reactions to judicial decisions and ‘… whether consciously or unconsciously, the judiciary, especially at the level of Heads of Bench and the Supreme Court, understands and should understand the importance of public opinion, according to a medium and long-term perspective, for the sustenance of its branch of government’.

Griffith was right in ‘The Political Constitution’ that many parts of our constitution (not all) are the outcome of conflicts. The restoration of parliamentary sovereignty would be the outcome of a conflict between the courts and the executive, but the courts would have lost authority and face in the course of that conflict.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.

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Filed under Judiciary, UK Parliament

Tagged as Jackson, New Zealand, Parliamentary sovereignty, Rule of Law, Sir Stephen Sedley

by Constitutional Law Group | March 9, 2012 · 4:51 pm

Jeffrey Goldsworthy: Parliamentary Sovereignty’s Premature Obituary

At the end of a long review of my book Parliamentary Sovereignty, Contemporary Debates (CUP, 2010, hereafter PS), Vernon Bogdanor concludes that I have “suffered one of the worst fates that can befall a philosopher”: I have “become the prisoner of a doctrine” – that of parliamentary sovereignty (“Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty” (2011) Oxford Journal of Legal Studies 179, hereinafter Bogdanor ). Apparently, self-imposed mental barriers prevent me from perceiving how the British constitution has changed.

What are Bogdanor’s reasons for this conclusion?

First, he puzzles over my claim that at present Parliament “cannot” limit its own substantive powers: is the impossibility a logical or contingent one? Since it cannot be a logical impossibility, he infers that I must mean that “it would be perfectly possible for Parliament to pass immutable laws but there are very good reasons why, as a matter of fact, it has never done so.” On this view, my “conception is a utilitarian one”, and is open to refutation “were it to be shown that the consequences would not necessarily be undesirable.” (Bogdanor,183) But this rests on a misunderstanding of my position. It is true that I believe there are good reasons of political morality for Parliament not being able to limit its own substantive powers, which I discuss in my book (PS, 7, 53-5, 116, 125-9). But I maintain that Parliament cannot lawfully limit its own substantive powers, because there is currently a fundamental legal rule (a rule of recognition) to that effect, whose existence is constituted by its being generally accepted by legal officialdom. That rule can be changed, but only by a change in official consensus, and not by Parliament acting unilaterally (116, 137-8). That is what I mean by “cannot”.

Secondly, Bogdanor believes that Parliament’s sovereignty has been limited by the European Communities Act 1972 (“EC Act”) (Bogdanor, 182). He acknowledges my suggested interpretation of the somewhat cryptic Factortame judgment, as construing the EC Act as imposing a kind of “manner and form” requirement that Parliament must use explicit language in order to legislate inconsistently with applicable EC law and with that Act (184). (He does not mention that I also offer two other, alternative interpretations of the judgment that are equally consistent with parliamentary sovereignty as I define it. (PS, 289-90, 296-8)) But he prefers the alternative view put forward by counsel in the Thoburn case, which he says “deserves more consideration than it has so far received.”(Bogdanor, 184) According to this view, the EC Act altered Britain’s fundamental rule of recognition with the effect that Parliament cannot unilaterally derogate from EC law. Consequently, “national courts would have to apply EC law in preference to inconsistent national law”(185). “If that is so”, he says, the EC Act limits Parliament’s substantive power. (186)

I freely acknowledge that this is a possible interpretation of the Factortame judgment, as I did in my book where I attributed it to Paul Craig (PS 287). There, I said that if Parliament can legislate inconsistently with applicable EC laws only if it first enacts legislation withdrawing Britain from the EC, “then the EC Act would have subjected Parliament’s lawmaking power to a limitation of substance”, which “could not be explained in terms of a mere requirement as to the form of British legislation.” (287-8) However, I argued that this interpretation was implausible because “it is the business of the government and Parliament, not the courts, to decide whether or not Britain should abide by its treaty commitments.” (287) In other words, if Parliament were to pass a law that explicitly contradicts applicable EC law, but without withdrawing Britain from the EC, and therefore violates Britain’s treaty commitments, that would be its business, not the courts’. They do not have legal authority to enforce treaty commitments in the face of a statute to the contrary. Nor is there much evidence that, on this point, there has been the requisite change in official consensus for the rule of recognition to have changed, as Bogdanor suggests it has (Bogdanor, 184). My argument then proceeded on that basis.

It is, of course, possible that the courts would take the opposite view, preferred by Bogdanor. But the fact that I offer reasons for disagreeing with a view that he thinks “deserves more consideration than it has so far received” (184) hardly suggests that I am imprisoned by a doctrine in the sense that I am unable to see beyond it. Nor does the fact that it is a possible view prove that it is the correct one, or that if Parliament’s substantive power have been limited in this respect they must be limitable in other respects as well (186). That is precisely what is in contention.

Thirdly, Bogdanor suggests that Parliament has also succeeded in limiting its substantive powers by enacting what he calls “binding” referendum requirements in s.1 of the Northern Ireland Act 1998 and ss.2-4 of the European Union Act (‘EU Act’) (187-8). But neither of these referendum requirements strikes me as “binding” Parliament in the requisite sense. This is because they are not self-entrenched: they can be repealed or amended by ordinary legislation, without any referendum being held (PS, 144). I emphasized the importance of self-entrenchment in PS (at 144), and in my written evidence to the House of Commons European Scrutiny Committee, which Bogdanor refers to (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 10; Bogdanor, n38). It might be argued that they are binding on Parliament until it repeals or amends them (Bogdanor, 189). But that argument would invite two responses. First, if Parliament were to legislate inconsistently with these requirements – for example, by legislating for the ratification of a treaty covered by s. 2 EU Act without any referendum first being held as required by that section – it is very likely that the referendum requirement would be regarded as repealed pro tanto by implication. That conclusion follows from the principle established in McCawley v R [1920] AC 691 (PC). But say I am wrong about this, and the courts were to hold that Parliament must follow a two-step rather than a one-step procedure, and expressly amend or repeal such requirements before legislating inconsistently with them. My second response is that this would amount to a requirement that Parliament must expressly amend or repeal such requirements, rather than doing so by implication (through the enactment of inconsistent legislation). According to my theory, a requirement that Parliament must expressly repeal or amend a provision is merely a requirement as to form, and not as to substance. This is not a minor, incidental aspect of my theory: it is central to it, and is discussed at length in my book (PS 179-82, 195, 289-90). It forms part of my argument that the EC Act, as construed in Factortame, is consistent with parliamentary sovereignty. Thus, a referendum requirement is perfectly consistent with my conception of parliamentary sovereignty, provided that it is not self-entrenched and can therefore be repealed or amended, whether impliedly or expressly, by ordinary legislation.

Bogdanor continues his discussion of referendum requirements by confusing (as many British writers do) two different arguments that attempt to justify them, which in my book I distinguish: the manner and form argument, and the reconstitution argument (Bogdanor, 189-190; see PS, 139, 155-60, 167, 171-73 and 198-99). The reconstitution argument construes referendum requirements as changing Parliament’s composition, by making the electorate part of Parliament for particular purposes. That is quite different from arguing that Parliament has subjected itself to a requirement governing the procedures or forms by which it must legislate. Bogdanor argues against the reconstitution argument (as I do), but then seems to assume that he has refuted the manner and form argument (Bogdanor, 189-90). Then follow sweeping claims: that Parliament in the EU Act has partially renounced its sovereign power to legislate; that since it has done so on that topic, it could do so on others as well; and therefore that it could gradually bind itself to a whole new constitution. But as I have shown, all this rests on a misunderstanding of the extent to which Parliament has already been able to bind itself. In statutes like the Northern Ireland Act and the EU Act it has not bound its substantive powers in any constitutionally significant sense.

Fourthly, Bogdanor argues that the judges have limited Parliament’s powers: it cannot protect Ministers or public authorities from judicial review, by conferring unfettered discretions or enacting ouster clauses (191). He asserts that Padfield and Anisminic make this “clear”, although he later says that “there is no case which allows one to confirm this interpretation.” (191, 192) I discuss Anisminic in my book, in a passage that Bogdanor does not mention (PS 285-6). All I can do is repeat what I said there: the House of Lords justified its decision on the orthodox ground of presumed legislative intention, and even if this was a “noble lie”, “the fact that a lie is felt to be required indicates that the judges themselves realise that their disobedience is, legally speaking, illicit” (PS, 286).

Fifthly, Bogdanor argues that if Parliament were to enact a statute subverting the foundations of the rule of law, it is possible that the judges would refuse to obey it. He refers to recent events and judicial statements (such as in the Jackson case) as possibly portending that outcome. It would shatter the official consensus on which (he and I both agree) the doctrine of parliamentary sovereignty has rested, and could lead to a constitutional crisis in which Parliament and the judges disagree about ultimate legal authority (Bogdanor, 193). His conclusion is that, since the question of what Parliament “can” do depends on the reaction of the courts, and we cannot predict what their reaction would be, it is impossible to say that Parliament “can” enact such a statute (193, 194).

Here again, Bogdanor is confusing what Parliament “can” or “cannot” do in a practical sense, with what it can or cannot do in a legal sense. I would say the following, to any judges who think that if Parliament were to enact a statute subverting the rule of law, they should hold the statute to be invalid.

“There is no basis in the constitution as it currently stands for you to do this: the long accepted rule of recognition gives Parliament sovereign lawmaking power. Therefore, you would be attempting to bring about constitutional change, so that what Parliament can legally do today, it could no longer legally do.

You can attempt such a change, but you cannot plausibly claim legal authority to do so by invoking the theory of “common law constitutionalism” – the theory that parliamentary sovereignty is a doctrine of the common law, which the judges created and can therefore unilaterally modify or repudiate. I have refuted that theory, and judicial support for it in Jackson’s case (such as in the judgment of Lord Steyn) is therefore based on demonstrable falsehoods. Obiter dicta that can be shown to be false should be accorded no authority.

There is no other basis in the constitution for your claiming authority unilaterally to change the constitution in this way. That does not mean you cannot successfully initiate such a change, but it does mean that the political branches of government must be persuaded, inveigled, bamboozled, or bluffed into acquiescing in it. But what if they are not? What if they resent and resist your efforts to change the constitutional rules that were previously accepted, and take strong action to defeat it, possibly including the impeachment of ‘over-mighty judges’? That might be regrettable, but if you tear up the consensus that currently supports the fundamental rules of the system, you are hardly well placed to complain if it is replaced by a power struggle you are ill-equipped to win. In the absence of consensus, your own legal authority as well as Parliament’s would be up for grabs. (This passage is adapted from PS, 55)

It might nevertheless be a good idea, before such a statute is enacted, for you to hint that you might refuse to obey it. The political branches may be just as concerned as you about the dangers of a constitutional crisis, and they might back down and decide not to enact it (as they did in 2003 when a sweeping ouster clause was withdrawn after protests by senior judges). But no matter how you couch such a threat, do not confuse in your own minds what would amount to judicial disobedience of the law, with the judicial exercise of constitutional authority. One of the practical restraints on Parliament’s exercise of lawmaking power is the possibility that it might not be obeyed. In an extraordinary case judges, like ordinary citizens, might be justified in disobeying a valid statute – and a fortiori, in hinting that they might disobey it. But it simply does not follow that it would be a good idea to abandon the doctrine of parliamentary sovereignty. What would replace it? A rule that the judges can subject Parliament’s authority to whatever limits they see fit (perhaps under the vague label “the rule of law”)? Remember that hard cases make bad laws. It would be better to retain the doctrine of parliamentary sovereignty, subject to the possibility of civil or even official disobedience in extraordinary situations, than to attempt to replace it with a rule of judicial supremacy capable of imposing fundamental constitutional changes on the nation.” (See also J. Goldsworthy, The Sovereignty of Parliament, History and Philosophy (OUP, 1999), 267-71)

Sixthly, Bogdanor argues that the concept of parliamentary sovereignty is of little value in analysing what Parliament can or cannot do. Indeed, the concept creates puzzles that would dissolve if it were abandoned (Bogdanor, 193-4). He recommends that we simply ask what rules govern Parliament’s composition, powers and procedures; whether they impose formal or substantive limits on legislation; how they are determined; and how they can be changed. The concept of sovereignty, he claims, plays no constructive role in answering these questions (194).

It was one of the purposes of my book to answer most of these questions. It is not clear to me whether Bogdanor disagrees with my answers, or with the way I use the concept of parliamentary sovereignty in arriving at or expressing them. For example, I reject the theory of “common law constitutionalism”, and in his book The New British Constitution (Hart, 2009) he seems to agree with me (at 82-3).

I am extremely sceptical about Bogdanor’s claim that the doctrine of parliamentary sovereignty is now useless for theoretical or practical purposes. For centuries, it has been generally understood that Parliament has sovereign lawmaking authority. This meant that there were no substantive limits to its authority, and it could not subject itself to such limits except by abdicating its authority with respect to territories capable of being excised from its jurisdiction. On the other hand, there was some uncertainty about its ability to subject itself to binding rules as to the procedure for or the form of legislation. A crucial question is: to what extent have recent developments changed these understandings?

A minimalist approach to answering that question, which I favour, construes somewhat cryptic developments, such as the effect of the EC Act as interpreted in Factortame, as altering previous understandings only to the minimum extent that is necessary to accommodate those developments. Factortame can be construed as using the EC Act as a very strong rule for interpreting later statutes, or alternatively, as imposing a binding rule as to the form of later statutes (PS 287-98). The minimalist approach leaves intact as much of the previous understanding as possible, for a number of reasons. An established rule of recognition is constituted by a consensus among legal officials, which it would be dangerous to construe as having radically changed unless there is reasonably clear evidence of the change. To the extent that an established rule of recognition remains unchanged, there is greater certainty about the allocation of constitutional authority, compared with a fluid situation in which it is regarded as having been repudiated but not yet replaced by any clear alternative. Uncertainty about such matters is more likely to cause conflicts between the branches of government. In addition, both of the major theoretical alternatives to orthodox (“continuing”) parliamentary sovereignty (“self-embracing” parliamentary sovereignty, and common law constitutionalism), which authorise either Parliament or the Supreme Court unilaterally to limit Parliament’s substantive powers, could in principle lead to very undemocratic constitutional change (116, 137-140).

Alternatively, a maximalist approach of recent developments can be taken, according to which the doctrine of parliamentary sovereignty is now dead, if not yet buried. But if so, what has replaced it? The problem is that if Parliament is no longer sovereign, almost everything is up for grabs. Bogdanor’s suggestion that we simply ask what Parliament can and cannot now do strikes me as naive. There is no strong evidence that orthodox parliamentary sovereignty has been supplanted by either of the usual alternative theories. As previously noted, Bogdanor does not seem to embrace common law constitutionalism, the theory that it is up to the courts in developing “the common law” to decide what limits Parliament’s powers. Does he, then, embrace the theory of self-embracing sovereignty, the idea that Parliament can limit its own powers in any way it chooses? He would not, of course, approve of the term “sovereignty”, which he does not find useful. But he might still endorse the idea that Parliament has the power to limit its own powers (Bogdanor, 183), notwithstanding the dangers of that idea (PS, 116, 137-138).

Can Parliament – in the legal sense of “can” – limit its substantive powers, such as by enacting a fully binding, self-entrenched, referendum requirement? I say it cannot – unless the rule of recognition is changed. This is a possibility I discuss: indeed, I suggest that if a binding referendum requirement were enacted only after being itself approved in a referendum, this would help to justify and fortify a change in the rule of recognition (PS 139-140). As I put the point in my written evidence to the House of Commons European Scrutiny Committee (to which Bogdanor refers),

“To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting the future enactment of legislation without a referendum first being held, that statute should itself be put to a referendum. The support of a majority of voters for such a referendum requirement would greatly add to the strength of the case in favour of its future enforcement notwithstanding Parliament’s later change of mind, indicated by its attempt to legislate without complying with that requirement. This is because obtaining the support of the voters for a requirement that their support be required in the future overcomes a principled objection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority – the expressed will of the people.” (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 11; Bogdanor, n38.)

I am surprised to be accused of having argued myself into a blind alley – becoming imprisoned by the doctrine of parliamentary sovereignty – when I have suggested how, in this way, the doctrine could most legitimately and effectively be superseded. But, until a new constitutional settlement is clearly endorsed by the people, it would in my opinion be dangerously destabilizing to declare that parliamentary sovereignty is dead.

Jeffrey Goldsworthy is a Professor of Law at Monash University

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Filed under European Union, UK Parliament

Tagged as European Communities Act 1972, European Union, European Union Act 2011, Parliamentary sovereignty, Relationship Between European and National Law

by Constitutional Law Group | January 12, 2012 · 4:42 pm

Mike Gordon: The European Union Act 2011

The European Union Act 2011 (EUA) is an unprecedented constitutional experiment. This post will outline the two main innovations of the Act: (1) the section 18 ‘sovereignty’ clause; and (2) the scheme of ‘referendum locks’ introduced in sections 2, 3 and 6. Three key questions raised by the EUA for UK constitutional lawyers will then be identified, and some tentative responses to these questions sketched. The post draws on an article written in collaboration with my colleague Michael Dougan, which is to be published in the February 2012 edition of the European Law Review.

(1) The ‘sovereignty’ clause

The provision contained in section 18 of the EUA was originally projected to be a ‘sovereignty’ clause, intended to reaffirm the sovereign character of the legislative power of the UK Parliament. Yet the final text of the provision enacted in the EUA is no ‘sovereignty’ clause at all; instead, section 18 simply confirms the narrower point that the status of EU law within the UK is ultimately dependant on its continuing statutory basis. In other words, section 18 maintains that EU law is effective and supreme over other domestic norms because an Act of Parliament, the European Communities Act 1972, makes it so.

(2) The ‘referendum locks’

The ‘referendum locks’ introduced in sections 2, 3 and 6 of the EUA form part of a broader system of control over the making of various decisions related to the EU. While the Act provides that some categories of decision must be approved by Act of Parliament (see e.g. section 7), and others merely subject to Parliamentary Approval (see e.g. section 10), the ‘referendum locks’ are the EUA’s most demanding control mechanism.

The locks provide that certain decisions can only be lawfully authorised by an Act of Parliament which makes the subsequent effectiveness of the decision contingent on whether it has been approved by a majority of the electorate voting in a referendum. The range of situations in which the EUA requires a referendum to be held to authorise action to be taken in relation to the EU is remarkably broad.

Section 2 covers any treaty amending or replacing the existing EU Treaties, although a treaty which does not transfer power or competence from the UK to the EU, in accordance with section 4 of the EUA, will be exempt from the requirement that a referendum be held. Section 3 covers changes to the existing EU Treaties made using the ‘simplified revision procedure’ under Article 48(6) TEU, although again, a referendum may not be required if the treaty is exempt from the criteria set out in section 4, such that power or competence is not transferred from the UK to the EU. In relation to section 3 only, a significance test may also be applied in relation to some specific types of transfer of power or competence, with those that are not significant to the UK failing to attract a referendum under the Act.

Section 6, in contrast, sets out a series of trigger events, which will automatically require approval by Act of Parliament and at a referendum. Most of these trigger events relate to changes in the EU’s voting rules – in particular, certain extensions of QMV – but a number of specific decisions which would significantly affect the UK-EU relationship (such as joining the euro, the removal of border controls under the Schengen Protocol, or participation in a European Public Prosecutor’s Office) would also attract a referendum under section 6.

Three Key Questions Raised by the EUA

The two elements of the EUA highlighted above clearly raise a number of important constitutional issues, for section 18 seeks to clarify the status of EU law within the UK, while the scheme of referendum locks contained within the Act purports to ensure that future transfers of power or competence to the EU from the UK will take effect subject to approval at a national referendum. Yet there are three key questions which are worthy of particular attention.

(i) What is the impact of the EUA on the sovereignty of Parliament?

When the changes incorporated in the EUA were first proposed, it might have been thought that section 18 would have been of greater importance to our understanding of the current status of the doctrine of parliamentary sovereignty. After all, section 18 was to be a ‘sovereignty’ clause, and could have required a range of interesting problems to be confronted. Could a sovereign Parliament legislate to confirm its own sovereignty? What practical effect would such a clause have on the courts and other constitutional actors?

Yet in its ultimate incarnation, section 18 raises few such issues; indeed it tells us little we did not already know from the famous judgment of Lord Bridge in Factortame (No. 2) [1991] 1 A.C. 603. Section 18 implies that Parliament remains sovereign, for the domestic supremacy of EU law fundamentally depends on an Act of Parliament. If this is the case, section 18 seems to invite us to infer, the supremacy, and indeed effectiveness, of EU law within the UK could be withdrawn by an Act of Parliament. This is, however, far from revolutionary, and section 18 arguably therefore emerges as a useful reminder at best, and somewhat of a distraction at worst.

More controversial by far are the EUA’s referendum locks. For here, it seems, is a Parliament moving away from Dicey’s constitutional orthodoxy, and attempting to bind its successors as to the manner and form of future legislation. Whether the referendum locks will be viewed as legally binding ultimately depends on what perspective is taken: those who follow Wade’s line that Parliament cannot alter the political fact of its sovereignty will believe such statutory conditions to be unenforceable, whereas those who are persuaded by Jennings and Heuston’s alternative understanding of legally unlimited legislative power may be convinced that Parliament has made a valid alteration to the future law-making process.

It is not easy to predict which view will prevail. Nevertheless, the rhetoric surrounding the Act – in particular the very language of ‘locks’ – coupled with the failed attempt to insert a sunset clause into the legislation as it passed through the House of Lords (which implies that such a clause would have be needed to cause the referendum requirements to lapse) provides some evidence that the government may have induced Parliament to bind its successors to an altered future manner and form, even if this was not explicitly acknowledged. Perhaps, then, the EUA can be seen as building on the decision of the House of Lords in Jackson [2005] UKHL 56, and confirming a modern shift to the manner and form understanding of parliamentary sovereignty.

Of course, even if this is accepted, it is crucial to note that the EUA’s referendum locks will only bind future Parliament’s for as long as they remain on the statute book. These locks are in no sense entrenched, and could doubtlessly be expressly repealed in a future Act. Nonetheless, the political cost of so doing may be high, due, for example, to the difficulties inherent in justifying to citizens the removal of legal rights to popular participation. And it is for this reason that it will still be important to establish whether or not the EUA’s referendum locks can be reconciled with the sovereignty of Parliament; if they cannot, and the manner and form conception of the doctrine is rejected, the locks can be readily disregarded by future governments, as they will be impliedly repealed by any Act of Parliament authorising action in relation to the EU that the EUA would otherwise purport to control. For a government to adopt such a strategy would be risky, creating considerable uncertainty pending the outcome of any legal challenge, while potentially appearing disingenuous to the public, and as such, it might be prudent for a manner and form understanding of the EUA to be embraced on pragmatic grounds.

(ii) What will be the impact of the EUA on the UK-EU relationship?

It is difficult to predict what impact the EUA will have on the relationship between the UK and the EU, but a number of factors suggest that this impact is not likely to be positive. The system of referendum locks introduced by the EUA goes much further than any equivalent regime in any other Member State. To some extent, then, the UK has set itself up as an exception in comparison to its fellow EU members, a fact which is unlikely to win the UK friends in Brussels if the effect of the locks is to obstruct future reform. Such obstruction could occur through a failure to win a required referendum in relation to a specified revision of the EU Treaties, or a government simply refusing to agree to proposed changes to avoid even holding a referendum in the first place.

Indeed, while potentially disruptive to the EU, it is not hard to see why a future government would adopt such an attitude. The EUA might require the holding of referendums on a range of esoteric issues (a referendum would need to be held, to give one example, to allow the Council to act by qualified majority, rather than unanimously, when making changes to the list of military products exempt from internal market provisions pursuant to Art 346 TFEU). It would be very difficult even for well informed citizens to engage with such issues, and it is therefore possible that the outcome of the referendums would be determined by a smaller number of groups and individuals with strong preordained views about the EU. Perhaps any such referendum would essentially morph into an ‘in-or-out’ referendum on the EU – a matter which, surprisingly, the Act does not provide for.

It thus remains to be seen whether the EUA will contribute to the UK becoming sidelined within the EU. Yet with the government seemingly willing to veto revision of the EU Treaties even where the Act’s referendum locks would not have been legally engaged – as would appear to be the case in relation to the UK’s refusal to agree at the negotiations in Brussels in December 2011 to a revision of the EU Treaties to incorporate a ‘fiscal compact’ among other things – the EUA could well exacerbate the UK’s increasing isolation.

(iii) What does the EUA tell us about the place of referendums in the UK constitution?

The EUA offers further evidence of the growing importance of referendums in the UK constitution. Referendums are clearly a versatile democratic tool, having recently been used to give citizens an opportunity to determine whether to adopt the AV voting system for elections to the House of Commons (and simultaneously enabling a political disagreement between coalition partners to be bypassed), while a referendum of some kind on Scottish independence, effecting the right to self-determination, looms on the horizon. In the EUA, in contrast, referendums are used as a ‘lock’, to inhibit the freedom of action of the government of the day in particular, but also to block the extension of the power and competence of the EU with respect to the UK (and perhaps even the expansion of the EU more generally).

The value and importance of the referendum as a constitutional device can thus be recognised, while nevertheless acknowledging genuine concerns about the use made of the mechanism in the EUA. The scope of the EUA’s referendum locks can be criticised as excessive: this could produce voter fatigue if frequent referendums are held on marginal issues. If turnout to vote in such referendums is low, the legitimacy both of the actual decisions reached, and direct democracy more broadly, could be questioned.

Further, it is not altogether clear why the UK’s relationship with the EU is singled out for special treatment – if referendums are to be guaranteed here, should they not also be guaranteed in relation to fundamental changes to the UK’s own internal constitutional arrangements? While the focus on the UK-EU relationship can be explained by party political preoccupations, this does not mean it is justified. Ultimately – as with all matters discussed in this post – it will take time to discern the impact of the EUA on UK constitutional practice relating to referendums. Yet the fact that the EUA does not make good use of referendums should be seen as a flaw of the Act, and not of direct democracy itself.

Mike Gordon is a Lecturer in Law at Liverpool Law School, University of Liverpool

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Filed under European Union, UK Parliament

Tagged as European Union Act 2011, Parliamentary sovereignty, Referendums

by Constitutional Law Group | November 28, 2011 · 5:26 pm

Gordon Anthony: Axa – A view from Northern Ireland

It is a little over 6 weeks since the Supreme Court delivered its long-awaited ruling in Axa General Insurance v Lord Advocate [2011] UKSC 46. Although the ruling was of primary importance to Scottish law – see, for instance, its liberalisation of the rules on title and interest/standing – the challenge to the Damages (Asbestos-related Conditions) (Scotland) Act 2009 that had been enacted in the face of Rothwell ([2007] UKHL 39) was of considerable interest in Northern Ireland too. This was not just because the Northern Ireland Assembly had enacted parallel legislation in 2011, but also because it was expected that the Supreme Court would address complex constitutional questions about the nature of the powers of the three devolved legislatures. When it finally did so, the Court made clear that the devolved legislatures are not legally sovereign but that they are, nevertheless, democratically legitimated bodies that will attract only very limited judicial scrutiny outside the terms of their constitutive Acts.

The central issue in the case was whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was ultra vires section 29(2)(d) of the Scotland Act 1998 by reason of being a disproportionate interference with the Article 1 Protocol 1 ECHR rights of the appellant insurance companies. The appellants’ submissions on this point failed because the Supreme Court was of the view that the legislation had been introduced to remedy a social injustice and because, in those circumstances, a court should interfere with the “public interest” choice of a legislature only where the choice is “manifestly unreasonable”. This, in turn, might have been dispositive of the case as it was noted that a further challenge based upon common law irrationality would inevitably fail if the Convention threshold of manifest unreasonableness could not be met (see para. 42 of Lord Hope’s judgment). However, rather than leave the matter there, the Court took the opportunity to elaborate upon the nature of the common law limitations that can apply to Acts of the Scottish Parliament. It is in that context that Axa is most relevant to Northern Ireland.

The Court developed two main points about the common law. The first was that common law irrationality does not lie as a ground for review of Acts primarily because of the constitutional nature of the Scottish Parliament. While Lords Hope and Reed emphasised that the Scottish Parliament is not legally sovereign in the sense that the Westminster Parliament is, they equally emphasised that the broader design of the Scotland Act 1998 entails that the powers of the Scottish Parliament cannot easily be compared to those of other recipients of delegated powers. Lord Hope thus said at paragraph 46 that the Scottish Parliament is a “self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question”; and Lord Reed similarly noted that “(w)ithin the limits set by section 29(2) … its power to legislate is as ample as it could possibly be: there is no indication in the Scotland Act of any specific purposes which are to guide it in its law-making or of any specific matters to which it is to have regard” (para. 146). Against that background, it was thought that it would be inappropriate for unelected judges to use common law irrationality (or unreasonableness or arbitrariness) as a means to second guess the preferences of a democratically elected Parliament (albeit that Lord Mance was less absolute in his conclusions: see para. 97).

The second point was that the common law could be expected to intervene where the Scottish Parliament legislated in such a way as to threaten the rule of law as the cornerstone of the UK constitution. For Lord Hope, this was something that could occur where executive dominance of a legislature might allow a government to introduce legislation purporting to “abolish judicial review or diminish the role of the courts in protecting the interests of the individual”. Referring to Lord Hailsham’s famous words in The Dilemma of Democracy and Lord Steyn’s comments in Jackson, his Lordship noted the increasing influence of a single party in Holyrood and said that “the rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para. 51). Lord Reid likewise identified values that he thought the Scottish Parliament could not abrogate, where he took as his starting point the interpretive presumption that prohibits recipients of power from acting contrary to common law fundamental rights save where the Westminster Parliament has expressly authorised that outcome. On this basis, his Lordship said that the Scotland Act 1998 is legislation “for a liberal democracy founded on particular constitutional principles and traditions … [Westminster] cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para. 153).

So, what does this all mean for the Northern Ireland Assembly? Certainly, the Supreme Court’s recognition of the need for heightened caution when courts are engaged in common law review complements earlier Northern Ireland jurisprudence on the legality of Orders in Council made under the Northern Ireland Act 2000 (the Act, now repealed, applied when the Northern Ireland Assembly was suspended). Such Orders are the constitutional equivalent of Acts of the Assembly, and the Northern Ireland courts refused to become involved in review processes that would have led them to consider the underlying policy of particular Orders (see, for instance, Re Carter’s Application [2011] NIQB 15). Axa, in that sense, has provided indirect confirmation that the Northern Ireland case law was correctly decided and that the courts were right to refuse to strain democratic principle.

In contrast, the understanding that the Assembly is not legally sovereign is essentially unremarkable, largely because debate in Northern Ireland has long been concerned more with ideas of political sovereignty and the so-called “consent” principle that underpins the Belfast Agreement of 1998. According to that principle – which finds legal expression in section 1 of the Northern Ireland Act 1998 – Northern Ireland is to remain as a part of the UK for so long as a majority of its electorate wishes it do so. However, while that situates the Northern Ireland Assembly within the UK’s constitutional structures, section 1 also provides that the Westminster Parliament will legislate to give effect to a majority electoral decision that Northern Ireland should cease to be a part of the UK and should form part of a United Ireland (see, too, Article 3 of the Irish Constitution, 1937). The Northern Ireland Act 1998 has therefore never really been regarded as something that can/should sustain a legally sovereign legislature, even if the Act has been described as a “constitutional statute” (see Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). It has instead been viewed as an Act that accommodates a delicate political accord that may later place Northern Ireland in a different sovereign setting altogether.

More complex is the position in respect of executive dominance and fundamental rights. Taking first the peril of executive dominance, the Northern Ireland Assembly is already characterised by such dominance given the consociational model of governance that defines the Belfast Agreement and Part III of the Northern Ireland Act 1998. That said, such dominance is several steps removed from the kind that concerned Lords Hailsham and Steyn, as the Northern Ireland Executive presently comprises Ministers from five political parties who must work together within a framework of elaborate checks and balances (both as apply to the Executive and within the Assembly). While it is, of course, theoretically possible that the Executive could pilot legislation that would seek to abolish judicial review, this would require a level of political co-operation on a controversial issue that would escape all previous experience in Northern Ireland, not to mention the checks and balances. To return to Lord Hope’s observation about the increasing influence of a single party in Holyrood, the absence of any related dynamic in the Northern Ireland Assembly perhaps limits the reach of his point about executive dominance. Indeed, it might even be said that legislation to abolish judicial review in Northern Ireland could be enacted only in the highly improbable circumstance that almost all parties to government simultaneously opted to jettison the rule of law.

Lord Reed’s comments on fundamental rights do, however, have a more immediate resonance in Northern Ireland, as the Robinson case had earlier established the importance of interpreting the devolution Acts in the light of the values that they embody (Robinson was concerned the interpretation of provisions on the election of the First and Deputy First Ministers: Lord Reed referred to the case at para. 153). So will this lead to the development of a more nuanced body of case law on the values of democracy, equality and rights that are generally said to inform devolution in Northern Ireland? Probably not, as the fuller thrust of Axa points away from ready judicial engagement with the legislative choices of the Assembly save to the extent that they are argued to contravene section 6(2)(c) of the Northern Ireland Act 1998 (the equivalent provision of section 29(2)(d) of the Scotland Act 1998). That said, ongoing political debate about the future of the Human Rights Act 1998 does suggest, at its most extreme, that the Act might be repealed and replaced with one or more of a number of Bills of Rights. In that event, sections 6(2)(c) and 29(2)(d) would become redundant on their current terms and they would have to amended to accommodate any new rights reality. Should that reality leave constitutional gaps, Axa’s potential for common law intervention might quickly be realised.

Gordon Anthony is Professor of Public Law at Queen’s University Belfast

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Filed under Devolution, Northern Ireland, Scotland

Tagged as Axa Insurance, Constitutional Statutes, Devolution, Northern Ireland, Parliamentary sovereignty, Scotland

by Constitutional Law Group | September 24, 2011 · 11:30 am

Alison L. Young: Fixed-Term Parliaments and Neurath’s Ship

The UK constitution could be compared to Neurath’s ship. Unlike other countries, the UK cannot point to a single defining moment when a constitution was definitively ‘launched’, its provisions set out in one document named ‘Constitution’. The UK’s constitution has evolved over time, building on and replacing the ‘old timbers’ of statutes, common law, conventions, non-legally enforceable rules, prerogative powers, practices and principles that make up our more loosely constructed (and some would argue leaking) constitution. In one sense, the recently enacted Fixed-Term Parliaments Act 2011 is a small timber replacement; just another piece of legislation that regulates constitutional matters by providing for fixed-term Parliaments. However, it also raises more fundamental issues. Just as it may be difficult to determine when a series of small changes has provided Neurath with a new ship, the Fixed-Term Parliaments Act 2011 may be part of a series of small incremental changes that is modifying the fundamental nature of the UK constitution.

On its face, the legislation appears to be modest. It fixes the date of the next general election as 7 May 2015 (section 1(2)) and fixes the terms of future Parliaments to five years (section 1 (3)). Parliament is automatically dissolved 17 working days before the election date (section 3(1)), replacing the prerogative power of the Monarch to dissolve Parliament (section 3(2)). The fixed five-year term can be extended for up to 2 months by a standing order made by the Prime Minister, approved by affirmative resolution of both Houses, with the Prime Minister being required to set out the reasons for the delay in the standing order (sections 1(5), 1(6) and 1(7)). This is designed to enable flexibility should polling day coincide with national or other emergency situations – e.g. as was the case with the foot and mouth crisis in 2002.

There are also two ways in which Parliament can be dissolved before the end of the five-year fixed term. First, the House of Commons, by a two-thirds majority, may pass a motion “That there should be an early parliamentary election” (section 2(1) and 2(2)). Second the House of Commons, acting by a simple majority, may pass a motion “That this House has no confidence in Her Majesty’s Government” which is not followed, within 14 days, by the passing of a second motion, again by simple majority, “That this House has confidence in her Majesty’s Government” (Sections 2(3), 2(4) and 2(5)). In both of these instances, the date for the general election is determined by a proclamation of Her Majesty, on advice from the Prime Minister (Section 2 (7)), Parliament dissolving 17 working days before the date set (section 3(1)).

Sections 4 and 5 of the Act resolve the difficulties arising from the coincidence of the date for the next general election for the Westminster Parliament falling on the same day as the date fixed for elections to the Scottish Parliament and the National Assembly for Wales, moving the date for these elections to 5 May 2016. In addition, the Prime Minister is required to make arrangements for a committee, the majority of whose members must belong to the House of Commons, to carry out a review of the consequences of the Act. The committee, if it finds it appropriate, may recommend the repeal or amendment of the Act, publishing its findings. The arrangements for the committee are to be made no earlier than 1 June and no later than 30 November 2020.

The justification for the legislation, as presented by the Deputy Prime Minister, also appeared to be uncontroversial. Prior to its enactment the power to dissolve Parliament was a prerogative of the Crown. In practice, this meant that the Prime Minister was able to determine the date at which general elections were held, provided that this was within five years from the last general election. As such, the Prime Minister could use this power to time the general election when it would be more likely that the Prime Minister’s government would be re-elected. A fixed term removes this power. It aims to enhance democracy, transferring a power of the Prime Minister to the House of Commons. Democracy may also be enhanced through the codification of votes of no confidence. This may be used both to vote out a Government which has lost the confidence of the House of Commons, but could also be used to require a motion to approve a newly-formed Government. This may give an extra layer of democratic legitimacy when the leadership of a political party changes, leading to the replacement of one Prime Minister with another, where there is a major cabinet reshuffle, or where coalition Governments are formed. However, the two-thirds majority required to call an earlier election may be nigh on impossible to obtain. In addition, the Monarch still retains her power to prorogue Parliament (section 6(1)). This may leave open the possibility of the Prime Minister responding to losing a vote of no confidence by requesting the prorogation of Parliament, ensuring that a different Government cannot be formed and obtain the approval of a vote of confidence within 14 days, thus forcing a general election.

However, even if there is general agreement surrounding the desirability of enhancing the powers of the House of Commons vis-à-vis the power of the executive, there was still a degree of controversy surrounding the provisions of the Act. Is five years too long? Five years may have been the maximum length of Parliament but, even if the face of more recent longer terms, it is by no means the average length of modern Westminster Parliaments. Moreover, research carried out by the Constitution Unit demonstrated the preference for shorter terms in most other legislative chambers and strongly advocated a four-year fixed term. Despite this, an amendment to move to four year terms was defeated.

Are fixed-term Parliaments a good idea generally, or are they merely required for a coalition Government? This issue led to deadlock, with the House of Lords proposing a ‘sunset’ clause requiring both the House of Commons and the House of Lords to renew the legislation after each general election. The deadlock between the two houses was finally resolved through the insertion of the requirement to arrange for a committee to review the Act in 2020 (the Parliament Act 1911-1949 procedure could not be used, given the provisions in the legislation enabling the life of Parliament to be extended to more than five years).

More fundamentally, the Act has deeper constitutional implications. First, it is further evidence of the codification/legalisation of the UK constitution? The prerogative power of the Monarch to dissolve Parliament is replaced by a legally regulated power; the consequences of votes of no confidence are no longer regulated by constitutional convention but by statute. This raises the issue as to whether these matters will be regulated by the courts, or whether the courts would regard these issues as non-justiciable being the subject of parliamentary privilege. Second, the Act was referred to in debates as a ‘constitutional’ statute. As such, should it be interpreted differently by the courts than other statutes (Robinson v Secretary of State for Northern Ireland); be incapable of being impliedly repealed (Thoburn v Sunderland City Council); or should it have been enacted differently from other, ordinary legislation, perhaps requiring White and Green papers and greater pre-legislative scrutiny, or even a different voting mechanism, as in the two-thirds voting requirement for the motion for an earlier general election (see House of Lords Constitution Committee Report The Process of Constitutional Change, 15^th Report of 2010-2012)? Third, there are implications for parliamentary sovereignty. Dicey’s conception of sovereignty clearly requires that all statutes are equal, but the increasing recognition of ‘constitutional statutes’ would suggest that some statutes are more equal than others. The reference in the title to Parliaments as opposed to Parliament and the rejection by the House of Commons of the ‘sunset’ clause clearly indicates an intention that this legislation binds future Parliaments. However, there are no provisions specifically preventing Parliament from enacting legislation to amend or overturn the Act. Moreover, it may be possible for Parliament to repeal the Act by implication; enacting legislation to dissolve Parliament, or providing for an earlier election. Is the Act further evidence of a challenge to the accuracy and normative justification of ‘Parliamentary Sovereignty’ as a fundamental feature of the UK Constitution?

More fundamentally, it calls into question the way in which our constitution is formed. The Act modifies the definition of Parliament and the way in which it votes. Does or should Parliament have the power to redefine itself If so, than Neurath’s ship really would have been replaced. As with most aspects of the UK constitution, only time will tell. But perhaps a better understanding of the provisions of the Act is to see this as a step towards, as opposed to the accomplishment of, a definitive shift to fixed-term Parliaments. Not only does the Act itself require a committee to investigate whether the Act should continue in force, but also, should its principles be ignored, the courts will be called upon to resolve the perceived constitutional crisis. To interpret the Act as a further example of the way in which Parliament may bind its successors my remove this essential checking function of the court, replacing its ability to assess legal and political realties with an obligation to interpret a statutory provision according to the will of Parliament (however difficult this may be to ascertain). This may damage the flexible, evolving nature of the UK constitution, as well as granting far greater powers to Parliament than Dicey’s theory may have originally intended.

Alison L. Young is a Fellow at Hertford College, Oxford.

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Filed under UK Parliament

Tagged as Constitutional Statutes, Fixed-Term Parliaments Act, Parliamentary sovereignty

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