Could Parliament pass a law that all blue-eyed babies be murdered?  This was the hypothetical question posed by Stephen in the Science of Ethics, quoted by AV Dicey in the Introduction to the Study of The Constitution.  Dicey agreed with the answer that “legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it”.

But what if Parliament passed a law that if a blue-eyed baby was murdered, there could be: no civil case against the murderer; no inquest into the circumstances of the death; no prosecution of the murderer; and there could not even be a police investigation?  What if Parliament went even further and passed a law that: all current civil cases on this point must cease instantly; all current inquests be stopped; existing prosecutions must be discontinued; and existing investigations must end?  Would we likewise agree with Dicey that legislators must go mad before they pass such a law, and that we would be idiotic if we submitted to it?

This is no longer a hypothetical proposition, a moot point to test the theoretical limits of parliamentary sovereignty.  This is an actual proposal by the Government, set out in its paper Addressing the Legacy of Northern Ireland’s Past.  At paragraph 34 of that paper, it states

The PSNI [Police Service of Northern Ireland] and Police Ombudsman Northern Ireland would be statutorily barred from investigating Troubles-related incidents.  This would bring an immediate end to criminal investigations into Troubles-related offences and remove the prospect of prosecutions.

No prosecutions. No police investigations. No investigations by the Police Ombudsman.

At paragraph 38 of the paper, the proposal is to

end judicial activity in relation to Troubles-related conduct across the spectrum of criminal cases, and current and future civil cases and inquests.

No civil cases, no inquests, and all current judicial activity ceases.

Research by the Model Bill Team shows that these proposals are extreme by way of international comparison with other conflict-resolution models.  Referring to the amnesty introduced in Chile, they describe the Northern Ireland proposals as being “Pinochet plus”.  Even though these proposals are being framed as a statute of limitations, rather than an amnesty, the best that can be said is that if you committed the crime a long time ago, it will now be ignored.  This is hardly a satisfying argument when we consider that, in other contexts, we do make strenuous efforts to investigate historical crimes.

The harsh reality is that terrible crimes were committed in Northern Ireland, including crimes against children and babies.  There remain many unsolved and unresolved killings, with suspected perpetrators including both paramilitaries and members of the security forces.  If the Government’s proposals become an Act of Parliament, then all judicial and police activity must immediately stop.

These proposals were discussed at an event held on Monday 22^nd November at the Northern Ireland Assembly.  The event was jointly hosted by the Bingham Centre for the Rule of Law, the model bill team at the Queen’s University of Belfast, and the Committee on the Administration of Justice. (A recording of that event will soon be available on these websites).

Mistaken analysis of the constitution leading to these proposals

Two fundamental mistakes have been made by the Government in their constitutional approach to these proposals.

The first is to equate sovereignty of Parliament with absolute supremacy of Parliament.  It is true that Dicey said that Parliament has the right to make or unmake any law whatever and no person has the right to override the legislation of Parliament.  However, he went on to say that the sovereign power is bounded by an external and an internal limit.  So, “a sovereign may wish to do many things which he either cannot do at all or can do only at great risk of serious resistance”.  This is the context in which Dicey cites the murder of blue-eyed babies as an example of a law which legislators would be mad to introduce, and subjects idiotic to obey.  Parliamentary sovereignty does not extend to passing a law which is so fundamentally immoral or ridiculous that it would never be enforced.  This is the unspoken pact that Dicey implies between the ruler and the ruled, that we will recognise you as having the right to pass any law whatsoever, so long as you never seek to pass any law whatsoever.  Tom Bingham was explicit on this point, perhaps rather naively stating “although Parliament has the theoretical power to legislate in a way that infringes the rule of law and fundamental rights it can in practice be relied on not to do so.”

The second mistake is to regard sovereignty of Parliament as the over-riding constitutional principle in the UK.  Sovereignty is certainly a very important principle, but it is not the sole principle, nor does it automatically trump all other principles.  In Dicey’s study of the constitution, Part 1 is on sovereignty of Parliament, and Part 2 is on the Rule of Law.  He puts these as co-equal, with sovereignty described as the “first feature” and the Rule of Law, or supremacy of law as the “second feature”.  Suella Braverman MP, the Attorney General falls into the mistake of seeing sovereignty as pre-eminent, stating recently that “the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689. That principle is Parliamentary Sovereignty”.  Under this conception of the constitution, the Rule of Law is subordinated to the role of simply ensuring that laws passed by Parliament are obeyed.  A single over-riding principle that Parliament is entitled to pass any law whatsoever is not a constitutional system to aspire to unless one desires absolute and untrammelled power.  Why should the epitome of constitutional rectitude be the principle that Parliament can literally do whatever it wants? Twin guiding principles that Parliament is sovereign AND that the Rule of Law must be respected does constitute a system worthy of aspiration.

Since this post is limited to Dicey’s analysis, I will very briefly recap on Dicey’s definition of the Rule of Law.  He said it comprises three aspects (a) no-one can be penalised save in accordance with established law, (b) no-one is above the law, and that everyone, no matter their status is subject to the law, (c) constitutional rights are “the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”.  He specifically mentions (at page 115) soldiers in his exposition on the Rule of Law, stating that “all men are in England subject to the law of the realm; for though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not (generally speaking) escape thereby from the duties of an ordinary citizen”.

The Northern Ireland legacy proposals breach the second and third of these aspects.  A person will be above the law if they have committed a “Troubles-related offence” (the term is not defined in the proposals).  Constitutional rights will not be recognised or vindicated by a court, instead the rights and responsibilities of those connected with conflict-related offences will be entirely removed from the judicial sphere.  This is not the exercise of law, but the abnegation of law.

In my view, a constitutional system with the principle that anything contained in legislation is automatically lawful is not a constitutional system worth having.  Tying a legislative bow around an immoral thing should not make the immoral thing lawful.  Other constitutional values ought to also come into play as a counter-balance: separation of powers, civil liberties, democracy, the Rule of Law.  Dicey’s way of resolving this paradox of a sovereign parliament is to state that “no modern English parliament would [pass such an Act extending its duration]” or that of course no legislator would ever introduce such a law.  But granting Parliament absolute power in the hope that it will not be abused is not a strong check or balance in the system.  Recognising that the Rule of Law co-exists with sovereignty is a stronger and more tangible check.

Whose job is it to fix these things?

There are two obvious venues where the constitutional defects in these proposals could be remedied, the courts and Parliament itself.

This week should see the application for leave for judicial review of these proposals in the High Court of Northern Ireland.  The review is being brought by victims and survivors of conflict-related incidents.  The central argument seems to be that these proposals are so fundamentally unconstitutional that no court could ever regard an Act of Parliament implementing them as lawful.  This is a direct and full-on challenge to sovereignty of Parliament.

The second way to remedy these proposals is for Parliament itself, as co-guarantor of the constitution, to reject them.  This would have been Dicey’s solution.  Despite the Government possessing a large majority in the Commons, parliamentarians have previously acted to stop unconstitutional provisions getting onto the statute book.  The original version of the Overseas Operations (Service Personnel and Veterans) Act 2021 included a time-bar for all sorts of serious crimes committed by UK service personnel.  Parliament rejected this provision, and passed an amendment that this exemption wouldn’t apply to war crimes and other grave breaches.  The United Kingdom Internal Market Act 2020 contained, on introduction into Parliament, a provision authorising breaches of international law.  Parliamentary pressure (amongst other things) led to that provision being removed – it would have been in violation of the Rule of Law and our international obligations.

These proposals seem to nearly invite a constitutional show-down with the courts by pushing as far as possible legislation which fundamentally undermines the Rule of Law.  Such a constitutional show-down would be dangerous and risks undermining respect for the courts, Parliament and the executive.  The best solution would be a diplomatic climb-down by withdrawing these proposals, wrapped up in legitimate concerns about victim’s rights, military discipline, and after listening to the consultation responses.

Using Dicey’s language, legislators would surely be “mad” to push proposals which are so fundamentally constitutionally flawed.

Dr Ronan Cormacain, Senior Research Fellow, Bingham Centre for the Rule of Law

(Suggested citation: R. Cormacain, ‘Blue-eyed Babies, Amnesties, Sovereignty of Parliament and the Rule of Law: The Northern Ireland Legacy Proposals’, U.K. Const. L. Blog (25th November 2021) (available at https://ukconstitutionallaw.org/))