Parliamentary sovereignty and the rule of law are described by A.V Dicey as the twin pillars of the British constitution.[1] However, what is the nature of the relationship of these two concepts within the constitution that joins them. Can the concept of parliamentary sovereignty which commands; that in theory the Queen in Parliament can make or unmake any law it pleases,[2] be consistent with its constitutional partner the rule of law? Moreover, if parliament promulgated draconian legislation that directly challenged or sought to override the rule of law, would the judiciary be in a position to defend the rule of law if such legislation was passed? This blog will critically discuss the co-existence of these key constitutional tenets as to answer the question of whether or not these concepts are consistent and stable as a happily married couple or antagonists in direct conflict.[3]
Parliamentary Sovereignty
To understand the doctrine of parliamentary sovereignty it is vital to understand its relationship with the constitutional arrangement in which it sits. The Republic of Ireland’s constitution is similar to most other countries whereas it is contained in a single document. In contrast, the United Kingdom’s constitution is contained a range various legal and non-legal sources such as doctrines, conventions, constitutional statutes, case law, international law and treaties. Contrast this with the Irish Republic's easily accessible single document. This document contains entrenched rights of individuals and sets out a system of government. Importantly, the Republic of Ireland uses a system of constitutional supremacy as opposed to parliamentary supremacy. This means that legislation enacted in Republic of Ireland that is inconsistent with its constitution can be challenged and if needed struck down by the Irish supreme court. In contrast, the United Kingdom the doctrine of parliamentary sovereignty presents the legislature as the supreme legal authority which the judiciary has no right to strike down[4].
A.V Dicey explained the doctrine of parliamentary sovereignty as three tenets. That parliament has the right to make or unmake any law it pleases, that no person or body can strike down an act of parliament and that parliament cannot bind its successors.[5] Therefore, in theory Westminster can pass, amend or repeal any law it pleases, no court in the United Kingdom can strike down primary legislation and no parliament may be bound by a predecessor or may bind a successor. However, there exists some constraints to this theory albeit self-imposed. For example, if the parliament of today revoked ‘constitutional statue’ such as the European Communities Act 1972 or Human Rights Act 1998 there may be economic or other consequences which could make it politically but not theoretically impossible for parliament to revoke such statue.[6]
The supremacy of parliament is clearly observed in the aftermath of the case of Burmah Oil v Lord Advocate.[7] The oil company was awarded compensation in the House of Lords for damages caused by British military forces in World War Two. However, the government responded by hastily promulgating the War Damages Act 1965 which acted retrospectively and annulled the effect given by the judiciary in the courts. This clearly illustrates the power and supremacy of the legislative body, the subordination of the judiciary under parliament and its power to retrospectively override decisions made in the courts.
The Rule of Law
The rule of law is a theory that is open to a number various interpretations. It is referred to but not defined in the Constitutional Reform Act 2005 which stated that nothing in the Act adversely affects “the existing constitutional principle of the rule of law”. One legal academic referred to the term as “a primary corpus of basic principles and values, which together lend some stability and coherence to the legal power”[8] This indicates that the rule of law is an entrenched foundation of principles and values which provides stability and equality to the legal system. However, what are the core principles of the rule of law?
A.V Dicey in his orthodox view of the rule put all man under the law “no man is above the law, and everyone is equal before the law”.[9] Dicey continued “no man is punishable or can lawfully be made to suffer without in body or goods except for a distinct breach of the law established in the legal manner before the ordinary courts of the land…”[10] Lord Bingham another much regarded legal authority expanded on Dicey’s principles: “The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”[11] Lord Bingham went further than Dicey’s three principles and introduced eight sub-rules. Significantly, introducing the rule that the law “must afford the adequate protection of human rights”[12] and introduced obligations to international law.[13] Law above man and constraints on abuse of government powers are the core themes within Dicey’s and Bingham’s views on the rule of law. In addition to this Bingham introduces expansive sub-rules including the adequate protection of human rights and obligations to international laws. In contrast others have a more dismissive view of the rule of law. Judith Shklar suggested that the rule of law is a meaningless device and dismissed it as “ruling class chatter”.[14]
However, despite opponent’s views the significance and importance of the rule of law has been demonstrated many times in domestic law. The Entick v Carrington case[15] is a prime example of the rule of law in action. Two Kings Messengers acting on a warrant issued by the Secretary of State raided Entick’s home seizing papers. Entick was accused of seditious writings. Entick subsequently sued for trespass. It was held that there was no law to support the warrant issued by the Secretary of State therefore the warrant was illegal and void. In a more recent case in M v Home Office,[16] an injunction was issued on the Home Offices decision to reject an application of asylum. However, the Home Office decided to deport the applicant regardless. The court held that the Home Secretary had committed contempt of court by ignoring the injunction. These important cases illustrated how the rule of law applies to government bodies who cannot act ultra-virus or ignore court injunctions. These cases clearly demonstrate Dicey’s principle that everyone is equal before the law. The two cases cited above also illustrate how the courts uphold the rule of law by acting as a constraint to governments abusing their powers. However, with the doctrine of parliamentary sovereignty in mind, it is important to discuss how the judiciary would react to draconian legislation that is evidently inconsistent with the core principles of the rule of law set out by A.V Dicey and Lord Bingham?
This leads to the question of consistency and whether or not the relationship between the rule of law and the doctrine of parliamentary sovereignty is one of harmony or direct conflict.[17] There has been cases were legislation was said to be in conflict with the rule of law. This was the case in A v Secretary of State for the Home Department.[18] The power to detain non domestic terrorist suspects indefinitely under part four the Anti-Terrorism, Crime and Security Act 2001 was tested under the Human Rights Act 1998. It was held that the law infringed European Convention of Human Rights articles contained within the Human Rights Act. In the ruling Lord Nicholls said that indefinite imprisonment of this nature would be an “anathema in any country that observed the rule of law”[19]. Indefinite detention was later replaced with control orders by a subsequent Act of Parliament. [20]. This case supports the human rights and non-domestic aspect of the rule of law as introduced by Lord Bingham sub-rules. Moreover, it provides some evidence of the judiciary commitment to the rule of law despite the unpopularity of non-domestic suspected terrorists. However, it could be said that the judiciary have simply used a constitutional stature in the Human Rights Act to override inferior legislation. Consequently, this case does not demonstrate direct confrontation between parliamentary sovereignty and the rule of law.
By in large the doctrine of parliamentary sovereignty has widely been accepted by the courts. However, contained within the obiter dicta of the R (Jackson) v Attorney General case,[21] was expressions of support from judges for the proposition that the courts may have the capacity to strike down an act of parliament that interferes with other fundamental principles of the constitution such as the rule of law. Lord Steyn’s obiter dicta in the Jackson case referred to Parliament as a “construct of common law” and challenged A.V Dicey’s orthodox and rigid view of parliamentary sovereignty:[22]
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.
Likewise, Lord Hope in his obiter dicta in the same case said that “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.”[23] In support of this Lady Hale said that “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”[24] It should be noted that not all judges involved in the Jackson ruling agree with the aforementioned obiter dicta.[25] However, there is a clear indication that some senior judges are at odds with Dicey’s theory of rigid parliamentary sovereignty and demonstrates that in circumstances were primary legislation is inconsistent with the rule of law as far as it directly challenges its principles, the judiciary may react in an extraordinary manner in defence of the rule of law.
In conclusion, the doctrine of parliamentary sovereignty has been relativity consistent with the rule of law as in regards to their constitutional relationship. As this essay has shown this relationship is not without incident. However, it is evident that the courts kindly respect the supremacy of parliament.[26] This gesture is gracefully returned as seen with the immigration case mentioned earlier.[27] Parliament acknowledges infringements of the rule of law by amending unsavoury legislation. Therefore, maintaining the stability of the relationship. However, if an antagonistic parliament was to overstep the mark by attempting to subvert the rule of law, the judiciary could act in a defensive manner. Evidence of this lies within the obiter dicta of the three judges in the Jackson case. Lords Steyn, Hope and Lady Hale express intent that the judiciary may intervene in a manner that directly challenges the sovereignty of parliament.[28] Finally, a crisis of constitutional proportion could be the consequence of this hypothetical but very conceivable situation. Therefore, the maintaining of a stable relationship between the twin pillars of the constitution may be said as being in the best interest of the United Kingdom.
by
Ciaran Boyle Derry
[1] A. V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1959)
[2] Ibid 39-40
[3] Tom Bingham, The Rule of Law (Penguin 2010) 161
[4] Pickin v BRB [1974] AC 765
[5] Dicey,(n 1) 39-40
[6] Brice Dickson, Law In Northern Ireland (Hart Publishing 2013) 23-24
[7] [1965] AC 75
[8] T.R.S Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press) 143
[9] Dicey, ( n 1) 45-54
[10] Ibid 179
[11] Lord Bingham, 'The Rule of Law' (2007) 66 CLJ 67,69
[12] Ibid 75
[13] Ibid 81
[14] Judith Shklar, “Political Theory and The Rule of Law” in Hutchinson and Monahan (eds), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987),p1
[15] (1765) 19 St Tr 1029
[16] [1994] 1 AC 377
[17] Bingham, (n 3)
[18] [2004] UKHL 56
[19] Ibid
[21] [2005] UKHL 56
[22] R (Jackson) v Attorney General, 2006 1 AC 262 [102]
[23] Ibid [104 [107]
[24] Ibid [159]
[25] Ibid [6]
[26] Pickin v BRB [1974] AC 765
[27] A v Secretary of State for the Home Department, [2004] UKHL 56
[28] R (Jackson) v Attorney General, 2006 1 AC 262 [102]
