Deus Ex Machina

"This is the generation of the great LEVIATHAN, or rather, to speak more reverently of that mortal god, to which we own under the immortal God, our peace and defense." -Thomas Hobbes: Leviathan

The Nature of Parliamentary Sovereignty vs Constitutionalism

I know an enabling act can enable anything, but the PM feels it would merely enable him to lose the next election.

-Bernard Wolley: Yes, Prime Minister: Season 2 Episode 3: A Diplomatic Incident

I have been, on and off, been discussing the American constitutional order against that of the British concept of parliamentary sovereignty. However in discussions with friends there have arisen some confusion as to whether or not Britain has a “constitution” and they objected to my claims that Britain has no such “constitution”. As with any word of sufficient generality there would of course be ambiguities of meaning. I wish therefore in this post to clarify in exactly what sense Britain doesn’t have a “constitution” before going on to explain how Britain can, paradoxically, have a parliament with virtually unlimited legislative powers while being the home of individual liberties and rule of law. I will be drawing mostly from A.V. Dicey’s Introduction to the Study of the Law of the Constitution to make my argument.

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The battle of the two legal systems

What makes a Legal system a Constitutional System?

The word “constitution” can be used in roughly two senses. One, it can refer to legislation which deals with “fundamental” matters, laws, or rights, e.g. the right to life, property, freedom of speech, defining and delimiting the powers of various fundamental institutional bodies, etc. In this sense it can be argued that Britain has a “constitution” in its Bill of Rights, Magna Carta, Act of Union, Act of Settlement, etc.

However this is not the sense in which jurists or constitutional theorists use the word “constitution”. A constitution, in the second sense, and in the sense in which I shall be using from here on, is basically any set of laws which are legally supreme over all, e.g. institutions, offices, even other laws. In this particular sense, while American, Australian and various Continental European legal systems may possess constitutions, the British legal system in fact does not have a single constitution. This is only because in the UK parliament itself is legally supreme and not any set of laws.

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However, the obvious question would be, what does it mean to say that in constitutional systems the constitution is “supreme”? As a rough definition we can say that in order for a set of laws to be “supreme” over all the legal/political institutions and offices of the land, and thereby to be a constitution, it has to be legally impossible and practically difficult for any of the entities under the constitution to act in a matter incompatible with the constitution. 

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Some constitutional systems make it practically difficult for political entities to legally act against the constitution by instituting a Supreme Court which has powers of judicial review. Thus, the legislature cannot pass any laws whatsoever; if a certain piece of legislation seems incompatible with the constitution, it could be struck down by the Supreme Court as “unconstitutional”. Thus all the political/legal institutions of the land has clearly delimited powers under the constitution and the Supreme Court has the right to review, and censure, any executive/official action as well as any piece of legislation by the legislature.

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While the Supreme Court method of enforcing constitutionality may prevail in America and Australia and some other parts of the commonwealth, in some Continental European systems there is no such Supreme Court. The constitution maybe supreme but due to lacking a history of rule of law or judicial adjudication, there is a very strong resistance to the idea of allowing judges to “check” the executive or the legislature. Historically in such systems the constitution maybe supreme even if there is no judicial review, however when any of the officials or institutions acts against the constitution, the entire political order is simply dissolved and a new political order is reconstituted. Such is the case in some of instances of the dissolution of the French Republic which leads to a new French Republic.

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What is Parliamentary Sovereignty?

Contrary to constitutional systems, in the United Kingdom and other parts of the commonwealth the doctrine of parliamentary sovereignty prevails. Parliamentary Sovereignty is the doctrine that the Queen in Parliament is legally supreme and has unlimited legislative powers.

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One should note very carefully that this isn’t the same thing as that parliament can “do” anything. Neither the Prime Minister nor Queen can issue any executive order they like. It actually has a much narrower meaning, it simply says that there are no legal limits to the types of legislation parliament can pass. Of course one must note that there is also a difference between what parliament can legislate and what it can practically or realistically enforce. Parliament can pass a law saying “All the roads in the United Kingdom shall be paved with gold” but I doubt there is enough gold in the UK to make it happen.

From this doctrine a corollary logically follows: No parliament can legally bind future parliaments. If a past parliament passes a law with the clause that it cannot be amended or repealed, a future parliament need not heed it and can proceed to repeal and amend it because parliament’s legislative powers cannot be restrained by any law or act of legislation. In fact there are certain laws which precisely has contained such clauses that it cannot be amended and is to hold “forever and ever” but yet parliament has precisely went ahead to amend it anyway.

Parliamentary sovereignty also means that the law courts are necessarily subordinate or subject to parliament, they have no powers of judicial review and cannot scrutinise parliamentary legislation. Also, no law court in the UK can ever rule or judge contrary to parliamentary legislation for they are bound always to decide according to them.

How Parliamentary Sovereignty Works

Given the unconstrained legislative powers of parliament, the question is how is such an omnipotent parliament reconcilable with Britain being the home of the rule of law as well as individual liberties. To answer this we need to understand the nature of the common law system as it developed in Britain.

(i) Precedent and Judge Made Law

First we have to understand that in common law systems, the majority of “laws” are not actually made by legislation but by judicial decisions. According to the doctrine of precedent or stare decisis, the propositions of law in the common law arise out of previous cases decided by judges. Future judges are “bound” to follow the judgements of previous cases as decided by former judges if the case before him is relevantly similar. However we need to be clear about this point, it is not the cases itself which binds but what is known as the ratio decidendi, or the reason or rule whereby a case is decided, which binds future judges. (The reality isn’t that simple as there is a hierarchy of courts and all lower courts must conform to the judgement of higher courts, however the point remains that courts are to rule according to past judgements in previous cases.)

Sir Rupert Cross in his book Precedent in English Law gave the following succinct definition of a ratio decidendi:

The ratio decidendi of a case is any rule of law expressly or impliedly treated by a judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or as a necessary part of his direction to the jury.

However the question now is, where do these “rules of law” come from? How did judges arrive at them? The answer is quite frankly, the judges literally made up them in aid of resolving the problem of the present case before them. Of course in trying to formulate the rule of law for cases without precedence, the judge can appeal to things like “natural justice”, public policy, the opinions of legal writers, and even the legal practice of other nations. However the point is that eventually it is the judge himself who formulates the rule of law as the ratio decidendi for the case before him and subsequent judges are bound to that ratio. Mellish LJ would declare that, “The whole of the rules of equity and nine-tenths of the common law have in fact been made by judges.”

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J.H. Baker in his Introduction to English Legal History summarised the genesis and substance of the common law in these words:

The common law of the king’s courts was from the outset embodied in the practice of those courts, and therefore in precedent. Anyone wishing to use those courts needed to know whether an action was available, and if so how to commence it. The first book on the common law was therefore, as might be expected, primarily a compilation of writs with an account of the procedures which they initiated. The treatise called Glanvill was written in about 1187-89, probably by one of the royal justices if not by Glanvill himself. We have already noticed its significance in concentrating on the work of the central courts. The decision of the author to concentrate on writs rather than on legislative decrees was equally significant; English law was seen as rooted in the practice of the courts, on the remedies given in particular cases, rather than in juridical abstractions. The forms of action, if not yet carved on tablets of stone, were beginning to dominate legal thinking.

(ii) Parliament as the Final Court of Appeal

Since the majority of the rules of law in the common law is made by judges, how exactly does parliament fit in? To understand how the idea of parliamentary supremacy arose we need to understand that parliament traditionally used to function as a sort of ‘final court of appeal’. The Crown in Parliament, in this sense, used to be the “supreme court”, and he would sit in a council hearing cases and its decisions in these cases were final and decisive.  J.H. Baker again explains the history behind this:

…although it is doubtless correct to regard all forms of royal legislation as an exercise of sovereign power, it may be going too far to suppose that the earliest legislation was primarily intended to alter the substance or the course of the law. The Anglo-Saxon codes, as we have seen, were intended to declare and perhaps unify what had previously been uncertain or variable customs; they were not obviously intended to replace old rules with new. The Normans and Angevins produced a good deal of legislation, variously known as assizes, constitutions and charters, or even statuta, through they were omitted from the later canon of statue-law as dating from before the time of legal memory. These enactments, however, and doubtless many more that have been lost, were not changing the common law; they were, in a sense, making it. It is not even to be assumed that contemporaries thought of this kind of law-making as different in character from the function of the judges. What in later times were seen as two distinct branches of the constitution – legislature and the judicature – had their origins in a less sophisticated notion of kingship in which legislation and adjudication were not distinguishable. The courts and parliament both had their origins in the same royal council which advised the early kings. Even when the courts began to separate from government, the judges could reserve cases of difficulty for the king to decide in person or in council, and conversely the king in council could issue general or specific directions to the judges. The attendance of common-law judges in the medieval Chancery and Tudor Star Chamber, and the presence of today’s judges sitting on the woolsacks before the throne at a state opening of parliament, hearken back to a distant age when the king’s justices were part of an undivided royal council.

The idea therefore is that the Crown in Parliament traditionally were not trigger happy legislators firing off rounds of legislation after legislation. Parliament used to function more as a “final court of appeal” whereby difficult cases of the law were escalated upwards towards Parliament where it was finally decided and any precedent set down for all future cases. This is why parliament has always been “supreme” over all the other courts in the UK because it was, in some sense, the Supreme Court of the Land. Over time the “judicial” functions of parliament shifted towards the Law Lords in the House of the Lords and very recently that function has shifted out of the House of Lords into a newly constituted Supreme Court in 2009. Despite its name however, the Supreme Court technically isn’t “supreme” in that it cannot overturn parliamentary legislation and is still bound by it.

A general view shows Court One during the opening of the Supreme Court of the United Kingdom in London

A general view shows Court One during the opening of the Supreme Court of the United Kingdom in London, October 16, 2009. REUTERS/Gareth Fuller/Pool

The rationale is that in grave matters of the law, the “buck” ought to stop at a political body rather than a politically insulated institution. Of course in the ordinary course of justice all the lower courts ought to be able to handle the day to day affairs, and even for very serious cases the House of the Lords, or today the Supreme Court of the United Kingdom, ought to be able to serve justice in those situations. But ultimately the body politic ought to have the political facilities to institute new legal rules or policies or overturn old ones and parliament as such retains the right always to overrule any precedent set by the courts.

(iii) The Rule of Law and English Liberties

We need to understand that unlike constitutional systems, British legislation rarely defines broad legal categories or general vague abstract rights. Even a lot of “fundamental” legal documents of the British legal system were about very particular rules, e.g. the king may not levy taxes without parliament’s consent, this is NOT the same as the American more abstract “no taxation without representation”. Before the UK incorporated the laws of the European Union, the UK never had laws concerning the right to property, or life or liberty or freedom of speech. How is it possible then for Britain to be the home of individual liberties if they were never encoded in any “constitutional” or legal document?

To understand this we need to understand the British conception of liberty. The English view of rights is that you can do anything whatever you want except for these particular instances as specified by the law. Basically they assume that you can do anything whatever and the law simply specifies what you can’t do. This is in contrast to a constitutional order where you have a legal document specifying the extent and scope of your rights and therefore specifically delimiting the scope and range of what you can do.

2000px-Uturn.svgThe example I like to use is that of the U-turn sign. In Singapore you are not allowed to make a U-turn unless there is a sign authorising you to do so, in other parts of the world you can make a U-turn unless there is a sign saying you can’t. I’m saying that in English law the default mode is freedom and that these rights and freedom do not come from a specific legal document but should be simply assumed (in the analogy the default mode is that you can make a U-turn, unless there is a sign telling you not to). The law should simply circumscribe crime, not specify the extend of your rights.

So how does English liberties prevail under such a system? The answer should be obvious, you are free to do anything whatever you like by default. You can however only be deprived of your liberty only because you have committed a crime under the law. Thus the “rule of law” prevails because executive action or order are subject to the law and can only be justified by the law. While in contemporary societies administrative law has given officials increasingly wide powers of discretion to deprive people of their liberties and goods, in the Anglosphere it is still understood that the actions of executives cannot be arbitrary or based on a whim but needs be justified by the law.

Thus parliamentary supremacy also means that the executive, the Queen’s ministers and her officials, are subject to the law. Remember, the Queen in Parliament is supreme in her legislative powers in that they can pass any law, but it does not follow that the Prime Minister or the Queen’s ministers/officials can do anything or issue any executive order on their own. Any action or order by the ministers or officials are always subject to the law and if they exceed it can be struck down by the courts.

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Thus to summarise, the English view of the rule of law and liberty consists of two ideas: (1) By default you are free to do anything whatever, the law does not delimit the scope of your liberties but only proscribes certain particular actions. (2) The liberties of individuals can only be deprived by proscriptions of the law and officials can only act as authorised by the law.

The law therefore rules every part and everyone in the land except for the legislative powers of parliament itself which is above it.

(iv) Particular Acts of Parliament and Statues

When it comes to parliamentary legislation, we need to keep in mind two things discussed: (1) The bulk of the common law is made by judges and (2) British legislation are rarely very wide or all encompassing in their scope.

The word “act” in “Acts of Parliament” reminds us of the particularly specific nature of parliamentary legislation, they are merely deeds or actions and not so much eternal or all encompassing laws. Thus despite the unlimited legislative powers of parliament, it is still the case that the courts will tend to interpret the laws of parliament, also known as statutes, rather narrowly, sticking to the literal sense of the words. Thus it is practically impossible for parliament to legislate anything vague or abstract with broad generality efficaciously because the courts will simply interpret and read them literally and narrowly when it comes to particular cases. If something is too wide or vague the courts will simply “narrow” its meaning.

Conclusion: Accountability and Practical Limits

From this brief survey we can see that despite parliament possessing unlimited legislative powers, such a thing is still compatible with, nay, even grounds the traditional concept of English liberties. When parliament’s omnipotence is bound to forms of legislation, and not executive orders or actions, then everything must necessarily be regulated and harmonised by the practice and interpretation of the courts and the law.

Despite parliament’s legal omnipotence, it is still the case that parliament is subjected to practical or realistic limits. They cannot legislate too outrageous laws lest they get booted out in the next election. As Bernard Woolley puts it, an enabling act may be able to enable anything, but it can also enable the sitting parliament to lose the general elections.

Most importantly however parliamentary sovereignty ironically enables parliament to be accountable to the people. Though most would be familiar with the quote from Spiderman about how with great power comes great responsibility, many do not draw the logical corollary that with limited power comes limited responsibility, and virtually no accountability. By vesting ultimate legal power with parliament, it focuses all responsibility upon that body and forces them to give an account for all things which goes on under its watch.

In a constitutional order on the other hand, a bewilderingly complex system of checks and balances with niggardly specific defined roles, powers and responsibilities prevails. To determine who can do what one must consult books upon books of legal texts. Furthermore those legal terms do not bear a common sensical meaning but are technical legal terms which constantly requires judicial clarification.

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Because it is not clear where the buck stops in particular cases, given the niggardly technical and specific definitions of responsibilities and powers, everyone can pass the buck to everyone else and dodge responsibility. So when a policy fails one cannot identify the culprit because the policy has went through a hundred hands and revisions and it is difficult for most people to know who exactly said or proposed what. Also, modern states are bureaucratically complex with thousand of technical components of which nobody is really sure who is responsible for what. Furthermore most of the institutions can systematically overstep their bounds and nobody is the wiser because nobody knows exactly what are their exact scope of responsibilities. One can attempt to sue every possible action by every major political institution and force a clarification but that would be incredibly inefficient and given the transient nature of democratic office, by the time a scope of responsibility is clarified, the offender would already be gone. And of course nobody can ever sue the Supreme Court for overstepping its bounds because its decision is without appeal and it is almost impossible to reverse their decisions. They can say that black is white and only a constitutional amendment can contradict them. (My other objections against the idea of such a Supreme Court can be found here.)

Parliament can and has legislated incredibly stupid things, but the fact remains that at least we all know where to direct the tomatoes and redress is always available at the next elections. But under the American constitutional order, the complex system of checks and balances, far from being able to hold the institutions to account, breeds collective irresponsibility instead.

With that, I leave you with the words of Lord Tom Bingham, the late Chief Justice of the UK Supreme Court from his book The Rule of Law

[Bingham first quotes from Stephen Goldsworthy’s book “The Sovereignty of Parliament”]

“What is at stake is the location of ultimate decision-making authority – the right to the ‘final word’ – in a legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be claiming that ultimate authority for themselves. In settling disagreements about what fundamental rights people have, and whether legislation is consistent with them, the judges’ word rather than Parliament’s would be final. Since virtually all significant moral and political controversies in contemporary Western societies involve disagreements about rights, this would amount to a massive transfer of political power from parliaments to judges. Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum. It is no wonder that the elected branches of government regard that prospect with apprehension.”

I agree. The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges. A constitution should reflect the will of a clear majority of the people, and a constitutional change of the kind here contemplated should be made in accordance with that will or not at all. As it was put by a Member of Parliament in 1621: ‘the judges are judges of the law, not of the Parliament. God forbid the state of the kingdom should ever come under the sentence of a judge.’

Addendum: The European Union and Parliamentary Sovereignty (24/6/2016)

In the light of the “Brexit” I think it would be good to visit the question of how European Union Laws affect our discussion on parliamentary sovereignty. When the European Communities Act of 1972 was first passed, which made EU law supreme over British laws, there was extensive discussion among British jurists whether or not the doctrine of parliamentary sovereignty still prevailed in Britain. However the orthodox interpretation even at that time was that the courts applied EU laws over British laws, not because EU laws were supreme politically, but because of the 1972 European Communities Act itself as passed by parliament. Thus, parliament, in a sense, has limited itself voluntarily. So parliament was still sovereign, if EU laws were supreme over parliament’s laws that is because parliament itself said so.

This interpretation was subsequently confirmed in a section of the European Union Act 2011 which states very clearly:

Status of EU law dependent on continuing statutory basis

Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.

Even as parliament passed the Human Rights Act in 1998, which allowed breaches of the European Convention of Human Rights to be remedied in British courts without the need to seek readdress in the EU courts, the statue states that in the event of an incompatibility between British laws and the Convention, judges are still compelled to apply British laws but may make a note to legislators to remedy this inconsistency.

So theoretically in the event of a Brexit, parliament can simply repeal both the European Communities Act of 1972 and the Human Rights Act of 1998 and EU laws would simply not be applicable in the UK. However of course the practical difficulties which such a measure would cause would be enormous and parliament will have a lot of work to do to disentangle the UK from EU’s laws in an orderly manner.

The fundamental point however is that the legal doctrine of parliamentary sovereignty was never revoked even with the European Communities Act of 1972 and EU laws applied to the UK only by the leave of parliament itself.

 

 

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This entry was posted on June 17, 2016 by in Uncategorized.
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