“Parliamentary supremacy is fine. Parliamentary sovereignty sucks.” - Swansea University student, 2008.
When I became a law student, nearly sixty years ago, one of my initial tasks was to learn about the history of the English legal system. After some weeks of indolence I thought it politic to ‘confess’ to my supervisor – who appeared senior and wise to me but was probably all of thirty years of age – that I had failed to find a copy of our constitution. After listening to his explanation of my failure – there was not one to find, I remarked that the situation he described was difficult for the ordinary person to understand.
'I do not think the ordinary person needs to understand it.’
‘But if they do not understand it , how can they change it?’
‘Change it?’ - this rejoinder coming with an emphatic stiffening of posture.
‘Well, yes, our constitution must belong to all of us; we must be able to change it.’
‘Jackson, you should understand that our constitutional arrangements are part of our great historical heritage and are not to be meddled with by those – and this seems likely to include you - who do not have the capacity to understand what they are doing.’
To me, who as a schoolboy had applied to join the Common Wealth party and was well down the road to becoming what, David Marquand would later describe as a democratic republican, that put-down was so absurd that I burst out laughing. It was only when I saw the expression on his face that I realised how deadly serious my teacher was. I apologised for my ill manners and left his rooms with a voice inside me saying ‘There is something wrong with that.’ It was some time before I focussed on ‘what’.
As a natural rebel I was not comfortable with the notion of heritage and suspected that much of the history that held us prisoner was interpreted – even made up - by later generations to suit their convenience. It was not until, a little later on my road to graduation, I heard that great jurist Hersch Lauterpacht question the right of any nation to deny its citizens fundamental human rights and make some observations about the English notion of parliamentary sovereignty that I realised how justified my suspicions might be. A little research convinced me that the concept of parliamentary sovereignty as expressed in the phrase ‘The Crown in Parliament can do anything except bind its successors’ - the central plank of our constitutional arrangements - had a doubtful provenance and might well be a glaring example of what was ‘wrong’. From time to time over the years, on returning to that enticing bone, I discovered that I was in good and very persuasive company. What Lauterpacht had said had caught the attention of others including, particularly, that thoughtful judge Sir Leslie (later Lord) Scarman who discussed the matter in his Hamlyn Lectures of 1974. My present conclusion is that we ‘ordinary’ people can fairly be said to have long been the victims of a nasty ‘scam’ perpetrated and maintained by what Peter Oborne has called recently the ‘political class’. With that thought atthe centre of my politically incorrect mind, I wonder when we will all wake up to what has happened and what we should do about it. Perhaps the Convention on Modern Liberty will tell us.
If ‘parliamentary sovereignty’ is modified to mean that Parliament, howsoever composed, is the supreme lawmaking body for our nation – within an agreed framework, there is nothing fundamentally wrong with that. And, so modified, it is a concept - better described as ‘Parliamentary Supremacy’ - for which a long and honourable history can be dimly discerned.
What we can glimpse of distant, pre-Norman England suggests that, although everyday life was governed by rules laid down by custom and practice – the laws of the common people, the last word and the right to make new rules lay with the kings as advised by their councils - rudimentary parliaments. But those kings and their councils were disinclined to interfere with fundamental ‘englishman’s rights’, enshrined in that custom and practice : it was not politic to do so. This wisdom, described as ‘the transient goodwill of a mostly generous political elite’ by David Marquand while discussing ‘liberty’ in the latest issue of History Today, has persisted over the centuries. It’s waxing and waning has been marked by occasional assertions of what some of those ‘english’ rights were said to be at particular points in time. Some parts of the various versions of Magna Charta, the political literature of the 17th century and the Bill of Rights, the battle-cry of the rebelling colonists in North America ‘No taxation without representation.’ and sayings such as ‘An Englishman’s home is his castle.’ are all examples.
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Parliamentary Supremacy has depended on the unwritten, unspoken pact described above. A pact between a sovereign people denied full expression of their sovereignty and a governing class careful not to push that denial too far. That pact worked, has held reasonably well and the assertion (by late 18th and early 19th century constitutional theorists) that Parliament was more than supreme, it was sovereign – a huge leap, went largely unnoticed. It was not understood. But now it must be noticed – and understood. If there are truly no limits to what Parliament can do, if Parliamentary Sovereignty is a reality, we are in a dangerous situation. It needs to be changed.
A demand for change can rely on four arguments.
Firstly, the proposition that Parliament can do ‘anything’ flies in the face of common sense. Do its advocates really believe that, if put to a popular poll – it never has been, many of ‘we the people’ would vote for it?
Secondly, what does ‘anything’ mean? Can Parliament abolish the Monarchy, the Lords and, the ultimate sovereign act, even abolish or suspend (de-activate) itself? Is it like the Desert White Mouse, a little creature that lives in vulgar schoolboy lore? At the first sign of danger it disappears up its own fundamental orifice with a loud report and a puff of blue smoke and, from that point of vantage, surveys its enemies with cool disdain – a strategy akin to parliamentary privilege. ‘Of course not’ you say. ‘Don’t be ridiculous!’ But where is that written down? And what other things can Parliament ‘not do’? And who said so? And where do we find what they said?
Thirdly, the Parliament that those 19th century thinkers had before them was very different from what we have today. The crown was not yet a mere constitutional figure head: the monarch had views and was not yet Thomas Paine’s ‘automaton that breathes’. Laws required royal assent to what emerged from both Chambers of Parliament, the Commons with its elected members and the Lords with its hereditary members. There were three keys, in different, albeit imperfect, hands, to the gate admitting entrance to the legislative garden.
All that has changed.
The royal key is, by convention, in the hands of government.
The Lords’ key is now in the hands of the Commons. Our second chamber can now only suggest change and, as a result of the Parliament Acts, can only delay for a short time what the Commons insists on.
And the combination of ‘whipping’, the power of the political parties and prime ministerial patronage (the payroll vote) has, to a very substantial extent, put the Commons’ key at the disposal of government.
We do not know whether our Victorian ancestors would have regarded such a Parliament as fit to have unlimited sovereignty but that should not deter us from saying it is a part of our great historical heritage we do not want .
Fourthly, the historical authority for the proposition is very weak. Parliament asserted its position, the right to the last word, vigorously in the 17th century. But, as pointed out by Lauterpacht and repeated by Scarman, Cromwell, contemplating Parliament, unicameral with neither King nor Lords, had no doubt that there should be things so fundamental that Parliament had no power to change them. His example is worth quoting: ‘That Parliaments should not make themselves perpetual is a Fundamental. Of what assurance is a law to prevent so great an evil, if it lie in the same legislature to un-law it again? Desert White Mice would not have lasted long in Cromwell’s house!
The 18th century saw the capture of real power by an emerging political elite. The hymn to unlimited, uncontrolled parliamentary sovereignty was sung by their Victorian successors with enthusiasm. And although assertion does not make fact, the judges, for reasons I have never understood, accepted the opinions of the composers of the hymn as authoritative and created the situation recognised by Scarman in 1974, ‘English law does today accept as beyond legal challenge the legislative sovereignty of Parliament’.
But, in 2005, some law lords hearing the Parliament Act case, which bears my name, suggested that reopening the matter was not beyond possibility. Unfortunately there was a hint that since the judges had, supposedly, invented parliamentary sovereignty (they did not!) they might change it. Swapping parliamentary sovereignty for judicial sovereignty does not hold great appeal.
As forecast by Lauterpacht in 1950, by Scarman in 1974 and, I expect, others, there has been a serious collision between the notion of unlimited parliamentary sovereignty and our international obligations, particularly those concerned with fundamental human rights. Recently, our sovereign Parliament has created huge confusion by doing two mutually incompatible things.
Firstly it insisted that our Human Rights Act should not empower our courts to declare legislation unlawful (and, therefore, void) because it breached rights protected by the Act. Our courts can only rule on compliance or non-compliance. What government or Parliament then does is up to them. They can ignore what the courts say.
Next it asserted in the Constitutional Reform Act of 2005 that the Rule of Law is an existing constitutional principle without saying what the Rule of Law ‘is’ or what the position of the courts is in relation to it. In the view of Lord Bingham who, whilst our Senior Law Lord, delivered lectures on the topic, this would create a highly charged situation if Parliament passed legislation inconsistent with the Rule of Law as the judges understand it. Legislation in flagrant breach of a fundamental human right is an example which would expose the difficulty and the incompatibility between the two Acts. This is an untenable situation. And it is ‘our’ situation. ‘We’ must do something about it.
I have mentioned earlier the Convention on Modern Liberty. This Convention, to be held in London with links to sites across the country on 28th February, was triggered largely by growing concern about the implications for personal liberty by the proliferation of intrusive ‘controlling’ legislation and the creation of what has been dubbed the Database State.
It is clear already that there will be sharp criticism of the apparent inability of Parliament to protect us from undesirable and cumulative activities by government. Diane Abbot’s remarks about the ‘bazaar’ our Parliament has become were noticed. The apparent interest of MPs in expanding their privileges to include exemptions from disclosure of how public money is spent on refunding their expenses has been noticed too. Parliament, which should be much more than a legislator, appears greatly weakened. Haughty reminders that Parliament is sovereign when our judges make critical remarks in the course, particularly, of dealing with human rights cases ring hollow. They sound like the squeaks of the White Mouse from its point of vantage.
Almost certainly the questions will be asked ‘How did we come to this?’ and ‘What should we do about it?’ One answer to the first question may be that we have been chloroformed by Oborne’s political class and have not noticed our constitutional arrangements are out of date, do not reflect the realities of modern life and have degenerated into a horrid mess which allows too much room for ‘fundamental’ matters to be ‘dealt with’ quietly and unaccountably.
If that is the answer, it is likely that the second question will lead to renewed popular calls for a democratically created, modern, written constitution which includes entrenched rights and other ‘fundamentals’ beyond the reach of executive or legislature. If that happened then, ideally, the Mouse would re-materialise and a re-activated Parliament, recognising that its duty to the people is higher than any allegiance to political party, would respond to such a call, take the matter in hand, study how constitutional change has been brought about in other countries –particularly South Africa, lead us through democratic processes to a new settlement and reform itself in all respects on the way. That, very close to what Scarman suggested thirty five years ago, would strengthen Parliament, our national cohesion and our democracy hugely. It is highly unlikely to happen.
Is it more likely to happen if political leverage is applied? We have never had a revolution. Revolutions, expressions of either ‘No, we won't.’ Or ‘Yes, we will.’ can take different forms. Civil disobedience is a bad idea, it inconveniences others. But civil obedience, meticulous, organised, mass adherence to badly drafted legislation, can be a wonderful and powerful way of making a point, particularly to Parliament. It is a great mouse trap. It may come to that.
This piece is published in connection to an article by David Marquand that appears in History Today on 19 February 2009.
