Parliamentary Sovereignty
Politics is the art of making your selfish desires seem like the national interest.
Thomas Sowell
Those who expect to reap the benefits of freedom, must, like men, undergo the fatigue of supporting it.
Thomas Paine
Two articles today are of interest for two different, but connected reasons; the first from Dominic Raab (Daily Telegraph) and the second from Steve Richards (The Guardian CiF).
That from Raab compares Netanyahu with Cameron where the subject of calling a referendum is concerned, arguing that both can benefit from such a decision. Setting to one side the comparison with Netanyahu’s situation, let us concentrate on the UK aspect of Raab’s article, one which it is worth repeating has the headline: How to harness the power of the people. Knowing from past experience (think 1975) how a EU referendum can be “rigged” through presentation of spin and half-truths perhaps Raab’s article should really be titled How to hoodwink the power of the people.
If Cameron were to follow Raab’s suggestion that he (Cameron) concentrate on the subjects of Immigration, Parliamentary veto over EU law and restoring the right of the UK to negotiate trade agreements; all three areas will fail because of the Acquis, which maintains that a power ceded to the EU cannot ever be recovered.
Immediately, with the second item, we have a conundrum – even a contradiction – between that which Raab wishes Cameron to do and what Cameron has actually said. Speaking about Parliamentary Sovereignty, Cameron said:
A United Kingdom Sovereignty Bill, to ensure the ultimate sovereignty of the UK Parliament. Unlike many other European countries Britain does not have a written constitution. Given the increasing amount of EU law
with which we have to deal we would amend the law to insert a sovereignty clause, to make it explicit that ultimately Britain’s Parliament is sovereign and cannot be overruled by the EU against its will. This is similar
in principle to the situation in Germany whereby the German constitution (the basic Law) is ultimately supreme. This would not mean striking down individual items of EU legislation but would provide ultimate
constitutional safeguards against any attempts by EU judges to erode our sovereignty. (Emphasis mine)
Now either Cameron would need to amend the UK Sovereignty Act or he won’t, recognising that under the Lisbon Treaty – in the words of the European Commission to Stefano Manservisi, Director General, DG Home : ..it must be recalled that Union Law prevails over national law, including national constitutional law. It is also worth commenting on Cameron’s assertion that constitutional safeguards would be in place to stop any attempts by EU judges to erode our sovereignty. It should be recalled that the role of the European Court of Justice (ECJ) in giving prominence to the primacy principle of Community law cannot be overlooked.
Where Raab seems to condone the ability of Cameron to tinker with the sovereignty of the UK yet also seems to support Cameron’s unequivocal statement that the sovereignty of the Falklands and Gibraltar will be maintained, it does beg the question of how does Falklands’ and Gibraltar’s sovereignty differ from that of the UK?
Now let us turn to the article of Steve Richards in the Guardian, one which contains the sub-heading: Direct democracy is alien to our system. Which is why, as with AV, and now in Scotland, we can’t seem to get it off the ground. The immediate question for Richards is when did referendums constitute the only requirement of Direct Democracy; coupled with the question when has there ever been a discussion about Direct Democracy and its possible introduction? That, as Richards writes, political leaders only ever offer referendums to get their party out of a hole (or to further their hold on power) can be accepted as fair comment, one can take exception to his belief that political leaders have no idea how to run one – they sure do; spin and half-truths, as mentioned above?
Has not Cameron presented his personal desires – some may well argue his selfish desires – and attempted to spin them as the national interest? Is not Raab doing exactly the same? Recently John Redwood was tackled on his blog by one of my commenters about the 6 Demands and the introduction of direct democracy, to which Redwood replied that he did not detect enthusiasm for such a radical change in our constitution and as was pointed out, voters would have to do much more in this system. With an increasing outcry about the loss of personal freedom within this country due to the also ever increasing control over our lives by central government, is it not right that if people wish to retain what they consider their freedom that they should indeed undergo the fatigue of supporting their freedom?
When the subject arises as to what is exactly the problem within the UK, some cite Parliamentary sovereignty, some the lack of a codified constitution and others the system of representative democracy. For the purposes of this post let us concentrate on the first: Parliamentary sovereignty.
While the words Parliamentary sovereignty are not mentioned in either Raab’s nor Richards’ articles, as I have written previously much is made of Parliamentary Sovereignty; but what is Parliamentary Sovereignty? A.V. Dicey gave the classic exposition of the doctrine of parliamentary sovereignty:
The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament… has, under the English constitution, the right to make or unmake any law or whatever; and, further, that
no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.
It should be noted that, to my belief, there exists no legislation establishing the doctrine of Parliamentary sovereignty, neither is it a rule that comes from statute and nor is there any case that can be cited as the origin of the doctrine. On this point from Wikipedia we are informed:
From 1790 to 1859 it was argued that sovereignty in the UK was vested neither in the Crown nor in the people but in the “Monarch in Parliament”. This is the origin of the doctrine of parliamentary sovereignty and
is usually seen as the fundamental principle of the British constitution. With these principles of parliamentary sovereignty majority control can [and has; Ed] gain access to unlimited constitutional authority, creating
what has been called “elective dictatorship” or “modern autocracy.
Indeed, what has evolved is an elective, or democratised, dictatorship; one which cannot have any pretense to sovereignty nor democracy.
It is the opinion of Carl Gardner, a Barrister and author of the Head of Legal blog, that in defense of Parliamentary sovereignty, it can be argued that it still ensures that major issues of public policy are ultimately decided by a democratically elected institution that is directly accountable to the public. On the other hand he also believes that it can be argued that under our system, in which effectively the Prime Minister controls a majority in the Commons – and which can force its view on the Lords and even reform the Lords as it sees fit – there is no effective check or balance on the power of the executive to impose on us whatever laws it wishes.
Of the those two statements, the latter confirms that there exists the need for Demand #3 of the 6 Demands, namely a separation of power twixt the Executive and the Legislature. That Wikipedia informs us that – as is, in fact, the case – we now have an elective, or democratised, dictatorship under which we live there is also the need for an effective check or balance on a class within our society that believe they have a god-given right to eternal rule. That the only system of democracy that provides the people with an effective check or balance against all levels of political rule is that of direct democracy must surely be plain for all to see.
Where Parliamentary sovereignty is concerned there are those that maintain Parliament can repeal ECA 1972, thus ending this country’s membership of the EU without recourse to Article 50 of the TEU. It is worth returning to the words of Carl Gardner, writing on Insite Law (a rather long quote but one worth repeating):
In the UK legal system, treaties entered into by the Crown are not automatically part of domestic law: in themselves, they are binding only on the international law plane. This approach to international law is
called “dualist”, and differs from that of some “monist” states (France is an example) who see treaties entered into by their governments as forming part of the same legal order as domestic law, when ratified.
Because of Britain’s dualist approach, when we joined the EEC, it was not enough merely for the government to accede to the relevant Treaties: in order for the Treaties to bite on firms and individuals here, they
had to be brought into the domestic legal order. This was done by the European Communities Act 1972. The key provision is section 2. Section 2(1) provides that
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the
Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed
accordingly This brings the whole of European law into our domestic legal system – including the EC law doctrine that EC law is supreme (some people prefer to talk of EC law having “primacy”). Section 2(4), which is
somewhat obscurely drafted, provides among other things that any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing
provisions of this section This is a provision of huge constitutional significance, since it makes all of Acts of Parliament, both past and future (“any enactment passed or to be passed”) subordinate to (“subject to”) EC
law as brought into the UK system under section 2(1) (“the foregoing provisions of this section”). The full significance of this was brought home in R v Secretary of State for Transport, ex parte Factortame [1990]
UKHL 13, [1991] 1 AC 603. Factortame was a British company owned and managed by Spanish nationals; it owned fishing vessels, and was registered as British for the purposes of fishing against the British “quota”
under the common fisheries policy. In order to keep the British quota for genuinely British fishermen, Parliament passed the Merchant Shipping Act 1988, which required ships fishing against the quota to be British
owned and controlled.
Factortame argued this was contrary to EC law. The High Court decided to make a reference to the European Court of Justice for a preliminary ruling on the issues of Community law raised in the proceedings; and
ordered that, by way of interim relief, the application of the 1988 Act should be suspended as regards the applicant. This was a radical step, since it amounted to judges “overruling or setting aside” and Act of
Parliament. When the government appealed, the Court of Appeal held that under national law the courts had no power to suspend, by way of interim relief, the application of Acts of Parliament. The case then went
to the House of Lords, which held that, under national law, the English courts had no power to grant interim relief in such a case; but since the dispute raised an issue concerning the interpretation of Community
law, the House of Lords decided, to stay the proceedings until the Court of Justice had given a preliminary ruling on the question whether EC law nonetheless obliged or empowered the national courts to grant such
an interim order. The ECJ’s answer (Case C-213/89) was short and clear:
Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of
national law must set aside that rule.The House of Lords then proceeded to grant interim relief, suspending the operation of the Merchant Shipping Act. If we consider once against Dicey’s formulation of
Parliamentary sovereignty, we can see that Factortame appears contrary to both limbs: it shows that Parliament could not effectively make law contrary to the EC Treaty; and that the courts can and in
appropriate circumstances must override or set aside an Act of Parliament that conflicts with EC law. Truly a historic judgment. However, before concluding that it consigns Parliamentary sovereignty to history, we
must remind ourselves that EC law could only be applied by the House of Lords because of the ECA 1972 – which Parliament can always repeal. There is an argument that EC law does not affect Parliamentary
sovereignty at all, since Parliament, having made the rule of law that led to the court’s conclusion in Factortame, can still if it chooses unmake that law.
EC law and implied repeal In a complex case about metrication, Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin) – often called the “metric martyrs” case – it was argued that the ECA 1972 was impliedly
repealed, to the extent that its provisions affected the law of weights and measures, by a subsequent Act of Parliament on the same subject. The judgment of Laws LJ in the Administrative Court has two interesting
aspects. First, he rejected Sunderland’s argument that EC law had become entrenched – in other words, unrepealable, either impliedly or expressly – as a result of the ECA 1972: Parliament cannot bind its
successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can
stipulate against express repeal… The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the
jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional
doctrine of sovereignty. This is important because it confirms Parliament’s power to repeal the ECA 1972. But secondly, he ruled that the ECA 1972 is in a special class of “constitutional statutes” recognised by
common law, which cannot be impliedly repealed:
The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and
enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family… Ordinary statutes may be impliedly repealed… A constitutional statute can
only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later
statute. Laws LJ’s approach is a bold attempt to explain why implied repeal does not apply to the ECA 1972, but it is not clear that higher courts would adopt it. An alternative analysis would be to say that it is
the words of section 2(4) of the ECA 1972 itself which have the effect of reaching into the future to “disable” implied repeal. In any event, it is clear that the doctrine of implied repeal, as laid down in the Ellen
Street Estates case considered in the previous chapter, has been modified by the ECA 1972. To that extent at least, it must be accepted that Dicey’s traditional notion of sovereignty has been affected.
Note that, referring to Section 2 of ECA 1972, Gardner states that this brings the whole of European law into our domestic legal system – including the EC law doctrine that EC law is supreme (some people prefer to talk of EC law having “primacy”). One can but refer back to the point made earlier about the European Commission advising Stefano Manservisi that Union law prevails over national law, even national constitutional law.
It is on that basis that if this country wishes to cease its membership of the EU it must follow the route of Article 50.
