UKCLA January 18, 2021 England, UK Parliament, United Kingdom

Carwyn Jones: Is Dicey dicey?

For nearly a hundred and fifty years, parliamentary sovereignty or supremacy (the terms are used interchangeably) has been taken as immutable and unchanging by the UK Parliament and the courts. As devolution has developed, the concept deserves greater examination to see whether the concept is as sound as it has been supposed.

There is nothing in statute law that defines parliamentary sovereignty. Indeed, before the late Victorian era it had never been expressly advocated in any context. The only mention of anything close to a declaration of sovereignty can be found in the words of the Earl of Shaftesbury who said, in 1689:

The Parliament of England is the supreme and absolute power, which gives life and motion to the English Government
(Bradley in Jowell et al (eds.) (The Changing Constitution, 6^th Edition Oxford University Press)

There could of course be much debate about what this phrase actually means. So soon after the Glorious Revolution, one might think that it was aimed at asserting the rights of a parliament against an overmighty monarchy. The debate is moot though. The English Parliament disappeared in 1707 and its constitutional foundation disappeared with it. There has never been any suggestion that the Treaty of Union simply allowed a takeover of one parliament (Scotland’s) by another (England’s). A new parliament was established, and the Treaty was silent on whether primacy was given to English parliamentary sovereignty as expressed by Shaftesbury or Scottish popular sovereignty based on the Declaration of Arbroath 1380. The tendency of course has been to assume that English constitutional principles simply transferred to the new state and its parliament.

Our entire concept of parliamentary sovereignty seems to be based largely on the views of one man, A.V Dicey. A distinguished constitutional lawyer for sure, through a view he expressed in his Introduction to the Study of the Law of the Constitution (1885). It’s worth revisiting his words:

Parliament has the right to make or unmake any law whatever, and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament
(Ch.1 p.3)

Before we look at those words, it’s worth reflecting that Dicey was a product of his age and the Victorian Empire that infused it. He was a vehement opponent of Irish home rule in any form (see England’s Case Against Irish Home Rule (1886)). He further maintained that the Imperial Parliament could do anything from taxing the colonies to abolishing the structure of the Church of Scotland. He would have struggled with the Statute of Westminster 1931 which recognised the self-government of (white) dominions.

It only took a few years before MPs were gleefully referring to this concept. After all, why not support a concept that gave you untrammelled power? How ironic then that the legislature, tasked with passing laws, embraced the concept that it could do as it pleased, thus making itself lawless.

What foundation did Dicey have for his view? He was undoubtedly influenced by Coke and Blackstone, but even allowing for the lackadaisical approach of the Victorians referring to the UK as “England”, did Dicey really mean to imply that English constitutional law had achieved primacy upon the Treaty of Union? His argument would no doubt have been that the new Parliament of Great Britain simply acquired sovereignty as soon as it was established, a situation that persisted with the Act of Union with Ireland in 1801. He said (at pp 22-24) that the Treaty of Union placed no restriction on the ability of the UK Parliament to legislate as it saw fit with regards to Scotland, even if this meant breaching the treaty conditions that were agreed when Scotland signed.

The Scottish courts seem however to take a different view. Admittedly, the evidence is scarce, but we can catch a glimpse through the case of McCormick v Lord Advocate (1953 SC 396). The issue at stake was how the newly crowned Queen Elizabeth should be referred to in Scotland. She was after all Queen Elizabeth II in England but the first Queen Elizabeth in Scotland. The court found a neat way through that by finding that as the Treaty of Union was silent on the issue then it was a matter of Royal Prerogative.

It was what was said in judgment however that catches the eye. Lord Cooper of Culross, the Lord President said obiter at p.411 that:

The principle of unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law.
The Lord Advocate conceded that the Parliament of the United Kingdom could not repeal or alter certain fundamental and essential conditions of the Act of Union

What’s clear from these words is that the court did not accept the Diceyan view of the constitution, and more, importantly, neither did the UK government’s own Scottish Law Officer. The UK Parliament can either do as it sees fit, in which case it is sovereign, or there are restrictions on it regarding Scotland, in which case, it is not. At the very least, in not expressly ruling out any challenge to parliamentary sovereignty the Court has left it open for a future Court to consider.

The issue has not been dealt with substantively since but, it would seem to me, that if a senior Scottish judge could express those views in the days when Scottish nationalism was politically weak, it would be unlikely that a court would take a different view in the present time.

What then of parliamentary sovereignty across the UK? The answer is unclear. There have been signs that the Supreme Court is aware of the debate about the absolute nature of parliamentary sovereignty but the issue still rests tantalisingly unsettled. The case of Jackson v Her Majesty’s Attorney General provides several examples of obiter comments from some Supreme Court justices which give an indication of where the debate might go in the future.

Take Lord Steyn. In Jackson he said this:

…it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances, involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.
[102]

On the face of it, this commentary calls into question the idea of parliamentary sovereignty. Even though Lord Steyn couches his question in terms of “exceptional circumstances” this still undermines the concept. Parliament is either absolutely sovereign i.e. it can do as it likes, or it isn’t in which case there are restrictions upon it even in exceptional circumstances. Sovereignty does not admit restrictions upon it in any circumstances, exceptional or not.

Following, Lord Hope said:

Parliamentary sovereignty is no longer, if it ever was, absolute…It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, the English principle of the absolute legislative sovereignty of parliament…is being qualified. That your lordships have been willing to hear this appeal and give judgement upon it is another indication that the courts have a part to play in defining the limit of Parliament’s legislative sovereignty
[104]

Lord Hope further opined that Parliament should not be able to pass legislation that:

…… is so absurd or unacceptable that the populace at large refuses to recognise it as law.
[120]

The fact that Lord Hope had Scottish roots led him to an exposition of Scots constitutional law. He expressly talks about the English principle of sovereignty and, by reason, rejecting the interpretation of Dicey’s ideas as having application in Scotland. His second comment, bringing “the populace” into his argument is a possible reference to the popular sovereignty central to Scots constitutional theory. He seems to say that English constitutional principles should not apply in Scotland and that the English principle is being eroded in any event.

He returned obiter to this point in AXA General Insurance and other v. Lord Advocate and others where at para. 50 he said

The question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion.

Lady Hale also declared in Jackson that:

The courts will of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing government action affecting the rights of the individual from all judicial scrutiny.
[159]

Again, Lady Hale seems to reserve to the courts the ability to guard the rule of law even against a Parliament that seeks to subvert it. That is not consistent with parliamentary sovereignty as the UK Parliament, acting on that principle, would be able to abolish judicial review, the courts or even the rule of law if it wished to. That is the logical conclusion of accepting parliamentary sovereignty.

Conclusion: What is the Status of Parliamentary Sovereignty?

Little has been said about parliamentary sovereignty by the courts in the years since Jackson but it is clear the courts have aired views questioning the concept. What then is its status?

Parliamentary sovereignty is based on the views of Dicey and not on statute law. Parliament has never expressly declared itself to be sovereign nor defined what that means. In s.38 of the EU Withdrawal Act 2020 there is a reference to “recognising” the sovereignty of the UK Parliament but I don’t believe that takes us any further. That section was written in the context of leaving the EU as is clear when reading the whole section. Further, the term “recognises” is one normally used in the context of public international law which suggests that the reference here is to state sovereignty as understood in that field rather than parliamentary sovereignty in the Diceyan sense. Nor does the section attempt to define what the concept means. It looks more like political graffiti rather than an attempt to clarify the law.

The fact that a concept it mentioned in statute does not make it justiciable. For example, s.2 of the Scotland Act 2016 and s.2 of the Wales Act 2017 both make the Sewel Convention part of the law, but that convention can be ignored by the UK government whenever it sees fit.

The executive, legislature and the courts have accepted the principle in the main (at least outside Scotland). There are those who would argue that this gives the principle the status of settled law. I disagree. It seems to me that parliamentary sovereignty, like so much else in our constitution, is a convention. If the courts decided that they no longer wished to respect it in its entirety or at all, there would be no barrier to them in doing so.

There is no legal barrier that is so absolute that forbids the courts from reviewing any Act of Parliament beyond a convention respected by judges over the last two centuries.

There is no legislation that declares that the UK Parliament can do as it sees fit without scrutiny from the courts and we have seen, from the obiter comments in Jackson, that there is scope for such scrutiny in the future.

We have to wait for that momentous case in the future when the Supreme Court decides whether it accepts that parliamentary sovereignty now is as Dicey understood it in the 19^th Century. However, as we observe constitutional development during the 21^st century and the weaknesses of an unwritten constitution based substantially on conventions without the force of law, we might ask ourselves whether the time has come for something more certain. The question is whether we are content to continue with a constitution that, at its heart simply declares that there is a Parliament at Westminster that can pass whatever law it wishes, even abolishing the common law and the courts if it so chose or a written constitution.

That’s a debate for a future article.

Carwyn Jones is a former First Minister of Wales and is now a Professor in the Department of Law and Criminology at Aberystwyth University

(Suggested citation: C. Jones, ‘Is Dicey dicey?’, U.K. Const. L. Blog (18th Jan. 2021) (available at https://ukconstitutionallaw.org/))

10Comments

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1

Paul Evans on January 18, 2021 at 11:49 am
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Before Dicey, Thomas Erskine May had asserted in the first edition of his famous treatise on parliamentary practice (1844) “The legislative authority of Parliament extends over the United Kingdom, and all its colonies and foreign possessions; and there are no other limits to its power of making laws for the whole Empire than those which are incident to all sovereign authority – the willingness of the people to obey or their power to resist. Unlike the legislatures of many countries it is bound by no fundamental charter or constitution …”. Being a good liberal, he inserted that phrase about “the willingness of the people to obey or their power to resist”. Parliamentary sovereignty is indeed a slippery thing, and it is negotiated, not absolute and immutable.
2

Paul Evans on January 18, 2021 at 2:19 pm
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In the first edition of his famous treatise on parliamentary practice (1844), Thomas Erskine May wrote: “The legislative authority of Parliament extends over the United Kingdom, and all its colonies and foreign possessions; and there are no other limits to its power of making laws for the whole Empire than those which are incident to all sovereign authority – the willingness of the people to obey or their power to resist. Unlike the legislatures of many countries it is bound by no fundamental charter or constitution …”. Being a good liberal, he included that phrase about the willingness of the people to obey or their power to resist. Parliamentary sovereignty is not inherent in Parliament, it is negotiated or borrowed from the electorate. It is not immutable. It is indeed a constitutional understanding. And a much abused term. When you hear the phrase “parliamentary sovereignty”, check your constitution. And maybe codify it.
3

Alastair Clyde on January 18, 2021 at 3:14 pm
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“Little has been said about parliamentary sovereignty by the courts in the years since Jackson but it is clear the courts have aired views questioning the concept.” Surely that is not true? More recent Supreme Court case law suggests that the sovereignty of Parliament is a fundamental principle of the British constitution.
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  Tom Spencer on February 10, 2021 at 12:09 am
  Reply
  
  Hi. Can you define “Parliament” please?
  
  When the Revolution of 1688 founded the sovereignty of “Parliament”, the supreme court of England and Wales was part of the “High Court of Parliament”, to use its fuller title. The barons sat as that supreme court as an ordinary part of their parliamentary duties. It was only in O’Connell (1844) that the supreme court became specialised and separated from the legislature. Yet it remained part of “Parliament”. Sect 4 of the Appellate Jurisdiction Act 1876 (UK) referred to the Appellate Committee of the House of Lords as “Her Majesty the Queen in Her Court of Parliament”. Lord Bingham used the phrase in Grobbelaar [2002] 1 WLR 3024 at [25]; [2002] UKHL 40.
5

movingvisionuk on January 18, 2021 at 7:34 pm
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I contributed a comment to Carwyn Jones article. You’ve ‘moderated’ it by deletion. What about it offends?

Both Carwyn and I consider the idea that the Diceyest regime is unravelling because it was never right, despite a 150 years of error. I extrapolated further by adding historical and factual context.

Is this Association Diceyest?
6

Jeff Goldsworthy on January 21, 2021 at 9:26 am
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How is it possible for a Professor of Law to assert that parliamentary sovereignty was invented by one man – Dicey – when an entire book (published in 1999) sets out detailed and voluminous historical evidence demonstrating the opposite? See my “The Sovereignty of Parliament; History and Philosophy”. This also includes evidence about the Union with Scotland (165-73), as does my later book “Parliamentary Sovereignty, Contemporary Debates” (2010) at 270-72, which cites the work of Scottish historian Julian Goodare. Scholars surely have an obligation to acquaint themselves with the relevant literature before pontificating on such important topics.
- 7
  
  ajhc3758 on February 19, 2021 at 10:31 pm
  Reply
  
  Fair point and well made.
8

movingvisionuk on January 22, 2021 at 10:23 am
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The Battle Royale between Parliament and the Courts, and between Dicey and Coke is already upon us; its denouement is still to come.

Far from lightly dismissing Carwyn Jones submissions just because another academic prefers his own interpretation of Constitutional Law and history, I can imagine that many who have invested their academic integrity in Diceyest philosophies will find the truth to be a hard pill to swallow.

Common Law, the thing that shant be denied, as , explained in the the vernacular of 17th Century English in the Declaration of Right 1688, has been belittled and usurped by a death of a thousand cuts, doesent give the usurpers any legitimacy, other than their own self imposed cursory powers, to have gotton away with it.

There’s a test. If 100% of MP’s in Parliament voted to legislate that anyone not wearing a black hat on a Sunday will be shot, would that be lawful? Of course not, but more importantly, why not?

I prefer this quote from Sir Steven Sedley the eminent Appeal Court Justice;

“The Crown is as Sovereign in the Courts as it is in Parliament”
9

Tom Spencer on February 10, 2021 at 12:15 am
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Dear Professor Jones, thank you for your informative article questioning reductionist interpretations of “parliamentary sovereignty”. Dicey even called it “legislative supremacy”, as if unaware that the UK’s supreme court was part of “Parliament” when he wrote in 1885, being the Appellate Committee of the House of Lords. Crucially, the supreme court of England and Wales was part of the “High Court of Parliament”, to use its fuller title, when the Revolution of 1688 originated the sovereignty of Parliament. Therefore, what is now the UK Supreme Court participates in that sovereignty, as it demonstrated in Miller No 2 (2019), reviewing and authorising the executive power to act as the Crown, independently of the Executive. It thereby entrenched its independent review and authorisation of the prerogative in Jackson (2005), a case to which you refer. If not, it falls to proponents of unrestrained legislative supremacy to explain how the supreme court ceased to participate in the Revolutionary sovereignty of Parliament, but most appear to not even recognise the original curiality of “Parliament” at the Revolution!

As to Scotland, may I suggest that the contrary is true, that judicial independence from political power is safer in the UK/England, than in Scotland considered separately from the UK? The supreme court of England and Wales was part of the “High Court of Parliament” at the Revolution of 1688. Therefore the parliamentary assertion of “sovereignty” over the courts was not fatal to judicial independence from political power; the courts could have been presumed to be deferring to a curial body, the High Court of Parliament.

Instead, it was in Scotland where the supreme court was a specialist and therefore separate body, that the Claim of Right 1689 required that the courts defer to the enactments of an “acurial” body, the Scottish Parliament/Legislature. The Lords of Session had been a professional body of judges since the Scottish College of Justice Act 1532. However, the Scottish Claim of Right 1689 provided for remedy or “remeed of law” to the King and Parliament, a non-specialist forum, from the specialist Court of Session. In 1693 Viscount Stair (as he later was) vigorously protested that arrangement (See Stair JD, Institutions of the Law of Scotland IV, I, 56 (see also IV, I, I; cited by Lord Keith in The Laws of Scotland – Stair Memorial Encyclopaedia, Vol 6 (LexisNexis Butterworths, 1988), para 809)). I cite these in “An Australian Rule of Law” (2014) 21 Aust J of Admin L 98, 101.

In McCormick, Lord Cooper’s attention does not appear to have drawn to the above argument.
10

Kangaroo on July 16, 2023 at 4:53 am
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As the Treaty of Union does not mention the Sovereignty or Constitution of either Kingdom it could not have extinguished them. Indeed the Scots Parliamentarians could not alter either item, they therefore still exist, as do the English version.
In 1603 when James VI took over the English throne it was two crowns on one head not a Union of the Crowns, otherwise the British Isles would have been renamed the Kingdom of Scotland. This was precisely because of the different Sovereignty of the two Kingdoms. Oil and water don’t mix. The same situation arose in 1707, no commingling of the Sovereignty or Constitutions could occur. So I contend that all that could be achieved, and what was agreed by the Treaty is that the Scots MPs in moving from Edinburgh to London took the Scots Parliament with them. It is therefore a separate voting block and needs to be counted separately. The UK Internal Markets Act does not therefore apply to Scotland as the vote was 52Noes,6Ayes and 1 No Vote Recorded.