Constitutional Law Group May 3, 2012 Judiciary, UK Parliament

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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Aquila on May 4, 2012 at 1:03 pm
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In para 1 it is suggested that the order would be to rescind the order and release the prisoner, but surely the appropriate remedy would be an order that the prisoner be produced before the court. If, according to the court’s determination, there was no lawful basis for his detention, his release would be by the court. By defininition there would be no lawful order to quash. Any other public officer purportedly ordered to re-arrest the prisoner would also, in those circumstances, be wise to seek a declaration from the court as to the lawfulness of his orders, fearing the commission of a crime, rather than just a contempt of court.

Historically the public in this country has sensibly valued its liberties and been suspicious of the abuse of power. It is therefore by no means a foregone conclusion as to which side the public would take. Such issues when pressed in the past have tended to divide.

The surest way for the erosion of individual liberties is for the courts to be shy of protecting them out of deference. Respect is mutual. If parliament and the executive decide to push the boundary of their proper role, which is to exercise their powers in good faith for the benefit of the public as a whole, then the courts have no choice but to politely stand firm.

Respect for the sovereignty of parliament by judges is merely to say that the judges, as with the entire public, trust those in parliament to exercise their powers properly and not to encroach on areas which are properly the province of the courts.
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Stuart Lakin: How to Defend a Theory of the British Constitution | UK Constitutional Law Group on June 13, 2012 at 9:17 am
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[…] 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 […]
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John Lubran on December 1, 2013 at 9:01 pm
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The myth of Parliamentary Sovereignty and the lie that there are no written English & Scottish Constitutions

The Supremacy of Constitutional Law over the Divine Right of Kings and Parliaments

In the USA, Britain, Canada, Australia and New Zealand a growing number of people are saying that their governments and judiciaries have assumed arbitrary and unlawful powers. The issue at stake, particularly in the light of the growing revelations of corruption and perversions of justice evident in government and amongst powerful elites, is whether or not governments, their agencies and the judiciaries of the nations concerned are subject to constitutional law and to what extent they are empowered to change or suspend that law. The debate is unsurprisingly mostly argued beneath the pertinent attention of the main stream media and only obliquely by politicians and lawyers who mostly deal with the question in a non sequitur if not deliberately misdirecting way. The emergence of the Internet has changed the platform of the debate far beyond the shallow sound bites previously relied upon by generations of many self empowered sections of the establishment. Demographic projections suggest that this issue cannot be ignored for much longer and that the implications could not be more profound.

We have constitutions in order to defend us from the over bearing presumptions of politicians and powerful elites, to ensure that everyone has equality before the law and not just according to how much justice they can afford and that justice is administered according to law and not for the mere expedience of powerful interests; in short, to protect citizens from tyranny. Western democracies have evolved over differing periods of time, primarily through various forms of revolution, with each revolution resulting in the creation of progressive constitutional laws and the corresponding reductions of powers previously enjoyed by which ever kings or tyrants were in power. On the European mainland each country has its own system of constitutional law but for our purposes we’ll focus on the system of law that has evolved in Britain and those other countries, including the USA, for whom the British system of law provides the very foundations of their constitutions.

Too often, unlearned and or dishonourable judges have ignored or dismissed as being frivolous arguments asserting the supremacy of common law. Such dismissals however are not supported by any Lawful provenance and no half baked academic theory, no matter the presumed authority of its author, can withstand the clear and unassailable truth.

The Context

British governments, particularly since the death of the UK’s last assertively dutiful constitutional monarch Edward VII in 1910, claim that we have no written and codified constitution but it doesn’t take the brains of a rocket scientist to notice that issues of ‘constitutional limitation’ come up in both Houses every time there’s any real argument. Just because we don’t have a constitution written on a single document and drawn up over a relatively short period in time like the Americans have, which by the way utterly depends on English Common Law for its coherence, doesn’t mean that we don’t have one that’s just as written and indeed just as codified, though in a different sort of way, even though in many different documents; the term ‘codified’ in this context simply means ‘indexed’, the term codified has no lawful significance in determining whether or not our Constitution actually exists as Supreme Law, though what has been written most certainly does. The English and Scottish Constitutions have evolved over centuries and are made up of Common Law, Case Law Precedents, which are not, as some pseudo authorities suggest, the basis of common law; plus of supreme authority, ‘Contractual Constitutional Declarations’ that, quite unnecessarily for constitutional purposes, may or may not have been further asserted as Statute Legislation. The term Statute Law is a technical misnomer, more properly it should be defined as Statute Legislation because such legislation can only have the authority of Law when it flows legitimately from the only law that there actually is, being Constitutional Law. Constitutional Law includes much Entrenched Law, meaning law that’s very hard to repeal, such as the wholly intact 1688 Declaration Of Rights consequential to the ‘Glorious Revolution’ of the same year, that did not as most parliamentarians assert, replace the ‘divine right of kings’ with a ‘divine right of parliaments’. One could be forgiven for thinking that the profound significance of our own 1688 Constitutional Revolution has been deliberately and unlawfully misrepresented in terms of its effect as Law for entirely improper reasons. Surely as a result of misdirection, HM Queen Elizabeth II, our current constitutional monarch, has failed to honour her coronation oath to defend our constitution, and us, from unlawful government and tyranny. Since the beginning of the 20th century, governments have sought to usurp our Constitutional Law by brazen denial of its supremacy or by enacting unlawful statutes, such as the self evidently constitutionally unlawful 1911 Parliament Act assented to by George V under the somewhat suspicious circumstances that can be explored. Profoundly, both Queen Victoria and Edward VII refused assent to virtually identical statutes during their own reigns on the grounds that those proposed Acts were unconstitutional. It must be unequivocal that any Act that usurps or seeks to usurp an Entrenched Constitutional Instrument with an unconstitutional and therefore unlawful instrument must be an act of Treason.

The fact that many, if not most, allegedly qualified lawyers today are conditioned to be a part of the Ministry of Justice’s legal fiction machine underlines just why, only just beneath the radar of the mainstream media, a burgeoning mass of increasingly learned people, no longer only reliant upon statements and assertions from politicians and powerful establishment elites for the truth, increasingly deem a major section of the political and administrative establishment to be discredited, dishonourable or even treasonous. No matter how much anyone asserts the supremacy of Parliament over Constitutional Law it remains a fact that Acts of Parliament and Statutes are not Law per se and are only Lawful where they flow legitimately from what is, therefore, the supremacy of Constitutional Law; indeed it is almost certain that a great many Statutes and Acts will be proven to be unlawful when properly challenged. Where a statute is in conflict with Common Law, Common Law is ALWAYS superior, this is unequivocal and no legal argument should ever prevail against it, nevertheless and to the utter shame of it, many Acts, amounting to denials of Common Law Supremacy, have managed to get on to the statute books with terrifyingly Orwellian aplomb. We need our Law Lords to affirm the truth. It would indeed be very difficult for a Law Lord to deny it within a leaned forum, for the great weight of evidence, in purely academic terms, disproves what power hungry politicians and unlearned conditioned lawyers would have us believe. Indeed if we didn’t have a Constitution that’s superior to Parliament then by definition we would have a tyranny of Parliament, which is Treason.

This unlawful governance impacts upon every facet of our lives and our community including the fundamental right everybody has to a Lawful Trial and equal access to justice. The denials of Habeas Corpus and the everyday occurrence of ‘unlawful administrative hearings’*, where people are thrown into dungeons without the option of a Lawful Trial, let alone a jury, together with fundamentally unconstitutional ‘star chamber (secret) courts’ goes against the most sacred tenets of our highest law and is deemed by many to be not only appalling but indeed utterly astonishing in that we put up with it. (*‘unlawful administrative hearings’ the authoritatively definitive ‘Halsbury’s Laws of England’ uses this term to describe the actual status of most county court, some higher court and many magistrates hearings. You just couldn’t make it up!) This is going on every day in Britain and is a sinister aspect of the overreaching powers aspired to by all the major parties, their familiars’ and placemen today.

The Ministry of Justice’s bare assertion of the supremacy of Parliament over Constitutional Law is so easily dismissed as being untrue that the only explanation for its continuance must be a perverse greed for power only allowed credence by the ignorant acquiescence of previous generations.

These issues concern every country where English Common Law provides the very foundation upon which all statute legislation and government acts must rely if they are to have any kind of legitimacy. This English Common Law community includes every place where the Queen is Sovereign, plus, surprising to some no doubt, the USA. It’s the real reason for valuing our Constitutional Monarchy, (this has nothing to do with the usual shallow arguments associated with pro or anti monarchy sentiments; it’s about the separation of powers between the legislators and the judiciary that are essential for any true constitutional democracy). The US constitution is absolutely founded and wholly dependent upon English Common Law and particularly the 1688 Declaration of Rights, though usually just referred to in American arguments as ‘Common Law’. The almost identical and often brazen abuses of constitutional law by the government in the USA are clearly paralleled with those that afflict British and Commonwealth citizens. The biggest challenge to those trying to reassert the superiority of Constitutional Law and indeed the fact that both in the Queens Realms and the USA we do actually have fully written and codified constitutions, is the complexity of the technical issues, indeed it’s why and how the establishment has been able to usurp power from these constitutions. We don’t need a new constitution because we already have one, one that can evolve with the changing and maturing needs of our communities. Waking and alerting the sleeping giant that is the mass of ordinary people to the fact that all they need do is insist that our governments obey the law and protect our rights has never been more apposite. It would be equally apposite if this awakening would coincide with the 800th anniversary of Magna Carta in 2015.

Footnote

One of the most common arguments asserting the supremacy of parliament is the clause written into the Declaration of Rights which states that no parliament can bind a future parliament. This is argued to mean that each parliament can do anything that it wants to.
This is of course a silly argument, because the Declaration of Rights was self evidently created to be an entrenched constitutional contract upon which all future governance was to be subject. If it were true that each parliament could affectively make unlawful laws then there would have been no purpose in creating a Constitutional Contract in the first place!
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  F on July 5, 2016 at 6:04 pm
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  Interesting though as recent events have shown awaking the sleeping mass may result in some very strange events as some of that mass are maybe best left sleeping
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John Lubran on December 21, 2013 at 6:07 pm
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By the standards of those yearning for a just and decent society, this is a period of hiatus, a time of attempted tyranny dressed in the camouflage of disarming urbanity, however the awakening disgust of ordinary people is slowly gathering strength and combining in movements of both moral and learned force. The awakened people have almost had enough. The ethos driven socio-political reforms of the Victorian era that achieved a temporary plateau of civilised advancement in Western Europe just after the Second World War is nowhere near good enough by today’s standards if we are to achieve the sort of just and decent society that many people now understand to be not only attainable but essential if life on earth is going to be suitable for all humanity. Peoples detestation of the rule of hypocrisy, brazen constitutional and economic injustices and abuses by powerful elites has been constantly underestimated by the ruling establishment who barely hide their utter contempt for what are wholly reasonable and practical demands for a just and decent society.

The moment people assert the sovereignty of constitutional law or the supremacy of common law over ill conceived statutes is when senior politicians, their familiars and most troubling, some senior judiciary, seem to take leave of both common sense and any empathy for the truth or the well being of other people. This establishment of powerful elites will use all and any of its terrible and often violent weapons of power to enforce and protect its usurped powers. But in reality the establishment is not as intelligent as it tries to look. The endless disagreeable consequences of its actions or inactions are appalling and evident, even to the most disinterested and hopelessly acquiescent soul. To deny proper attention to constitutional unlawfulness, brazenly imposed as law, the powerful elite’s rely upon the Svengali like imperious aplomb that has long been so effective in conditioning the credulity of a previously unwitting and acquiescent society. These powerful elitists are simply too presumptuous to grasp the force and scale of an entirely lawful rebellion building up beneath their self regard and disdain, they like to dismiss this movement for change as being an adolescent craze or a pastime of cranks. They have not noticed that it stems from centuries of emotion now forcing an evolution. Civilised advancement has ever been forced from the bottom and always resisted from the top.

We who live in the liberal western democracies have a great deal to be thankful for. Arguably, our best quality is that we include social wellbeing issues at the heart of things; and to varying extents the mitigation of poverty, access to health care, education, developed infrastructures and above all, under God, constitutional law designed to protect our individual rights and civil structures from tyranny and unlawful acts.

We didn’t evolve all these advancements easily though. This latest millennia of our history describes a painfully slow and developing process since the days of serfdom under the Divine Right of Kings and their Barons. The revolution of Magna Carta in June 1215 might not have been noticeably beneficial for those serfs at the time, but the rebellion of the Barons was the beginning of the merging of parts essential for forming a constitution of consent, not unlike the way cells come together to create physical life. Those constitutional cells that came together at Runnymede in the summer of 1215 were Common Law, the Judgement of Peers according to law (Case Law Precedence) and the primacy of Contractual Constitutional Instruments over kings and indeed anyone else. Magna Carta might have been aimed only at the rights of barons but it initiated an upward curve on the scale of human rights that took a further few hundred years to become exponential. Magna Carta sits at the very foundation of all constitutions relying on English Common Law, which today includes every place were the Monarch of the United Kingdom is sovereign, and as strange as it may seem to many, also the USA.

Whilst the barons only pushed for their own rights in 1215, people lower down the social rankings had also begun their own random but organic push for rights too. Coming from such a disadvantaged position explains the slow pre-exponential curve; as slow as it was however, it was gathering force. All sorts of opportunities were taken advantage of by the peasants, mostly due to caprices of nature or periods of often violent chaos amongst the ruling elites. The Back Death killed so many that those peasants who were left became a valued commodity to be competed for; also the temporarily failed Peasants Revolt and the Wars of the Roses created chinks in the armour of totalitarian elitism that allowed many a common man of peasant heritage to rise above the slavery of poverty; a ‘middle class’ had been created and education followed.

Educated people tend to resent bad governments and are more capable of organising effective pressure upon them, even to the extent of Cromwell’s military coup and the beheading of the King. The problem was that Cromwell’s puritans were hardly more society friendly than had been the King; indeed as it turned out, the masses preferred a King, leading to the ‘Restoration’ and much retribution upon the Cromwellian leaders, both those living and those already dead! Nevertheless the grip of Kings on totalitarian power had gone, even if they didn’t seem to know it. The last king to believe he ruled Britain by Divine Right was James II whose foolish presumption resulted in the ‘Glorious Revolution’ of 1688 were a contract between parliament on one side and William III and Mary II on the other, massively improved the rights of the common man over tyranny. That contract between Sovereign and Parliament is the ‘Declaration of Rights 1688’ in which fundamental principles of constitutional law were enshrined at a deeply entrenched level of force. William and Mary, the first revolutionary ‘Constitutional Monarchs’ by their coronation oaths surrendered their sovereignty to the supremacy of constitutional law, binding all future monarchs to the same limitations, but what is too often ignored, Parliament also signed up to the same limitations.

The definitive status of Statute Legislation (erroneously referred to as Statute Law) was formed from the ‘Declaration of Rights’ in the form of the identical ‘Bill of Rights’ a year later in 1689. The ‘Bill of Rights 1689’ is an Act of Parliament which being a Statute is inferior to Law. It is not controversial within learned forums that Law is wholly constitutional and that all other legislation must follow it faithfully if it is to have the Force of Law. In many ways we in Britain and the other common law countries can regard the Revolutionaries of 1688 as our own ‘Founding Fathers’, for the effect of the Glorious Revolution was as great upon our society as was the American Revolution upon the Americans. Sadly, we seem to have devalued its importance as high law both educationally and in the esteem of the country generally. “It’s just history with nothing to do with our lives today” being the myth that has been allowed so much currency even at the heart of government and perversely, amongst too many senior educators and lawyers.

Whilst professional lawyers and academics make argumnents outside of these fundimental truths, this nation, by virtue of the apparently unconcidered demographics of an emerging and unprecedentedly enlightened generation, are likely to find themselves looking rather silly.
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  F on July 5, 2016 at 6:11 pm
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  this nation, by virtue of the apparently unconcidered demographics of an emerging and unprecedentedly enlightened generation, are likely to find themselves looking rather silly.
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  as in the one where large numbers of young people didnt vote in the Referendum since as someone said they were probably too busy taking selfies or getting hammered. When even masses of Labour voters vote for a non progressive measure like leaving the EU i think the chances of any sort of rebellion are very low
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Parliamentary sovereignty in a multidimensional constitution: some preliminary thoughts | Public law for everyone on April 16, 2014 at 3:38 pm
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[…] analysis helps to explain why (as Dawn Oliver has noted) there is a degree of uncertainty about what would happen if there were a constitutional […]