Scottish Independence Parliamentary Sovereignty Essay

European Union raises fundamental questions relating to the doctrine of parliamentary sovereignty

The Constitution of the United Kingdom is creaking.  Based on unwritten conventions and an ineffectual separation of powers the government fails to be truly accountable.  The House of Lords remains an anachronism and our membership of the European Union raises fundamental questions relating to the doctrine of parliamentary sovereignty.  Discuss.

There are several arguments applicable to the context of the constitution of the United Kingdom (UK); the effect of the UK constitution not being composed of written or codified rules, the doctrine of rule of law as put forward by Professor Albert Venn Dicey in ‘The Law of the Constitution’ 1 and the doctrine of parliamentary sovereignty and the effects of the new Labour government’s encouragement of devolution, joining of the European Union (EU) and suggested reform of the House of Lords thereon.

lism, as in the United States.

The UK constitution is comprised of unwritten conventions and rules, though the Bill of Rights 1689 has provided the basis for the legislative powers of Parliament and common law for the powers of the Monarch. Dicey was of the view that the UK constitution, although being unwritten, was based upon the principles of the legal sovereignty of Parliament and the rule or supremacy of law. However, there is the argument that this form of constitution, being without legally enforceable guarantees cannot fulfil the definition of a constitution 2. 

Dicey’s view was that the rule of law stated that firstly, individuals could not be subject to a wide discretionary legislative power, that everyone would have the same fair treatment in the courts, and that as there was no written constitution, that constitutional law was the “result of the judicial decisions determining the rights of private persons in particular cases brought before the courts”.

1 [1885], 10th edition
2 Vernon Bogdanor in “Essays on British Government”: ‘The Politics and the Constitution’ (Dartmouth 1996)
3 [1933] 309-310

The United Kingdom does not have a codified constitution, unlike France or the United States, and this has a historical basis.  From the end of the eighteenth century and throughout the nineteenth century there was a push towards the principle of constitutionalism, that there should be limits upon the absolute power of government, as it was recognised that this was very dangerous if unchecked, and the revolution in France in 1789 and 1830, the appointment of an absolute monarch in Spain in 1812 and the establishment of the constitution of the Kingdom of Italy are examples of the wave that occurred at this time

This view was criticised by subsequent authorities such as W. Ivor Jennings in “The Law and the Constitution” 3, which stated that this view reflected Dicey’s political leanings as a ‘Whig’ resisting the discretionary power of the State. The problem with this theory is that it is not broad enough to encompass the modern principles of democracy in the United Kingdom, including the freedoms of the individual introduced by the Human Rights Act (HRA) 1998 set out in the European Convention in Human Rights (ECHR), and it therefore merely supplies a foundation to the notion of democracy

In the context of parliamentary sovereignty (Parliament in the UK being the supreme and absolute power) which has long been accepted as the fundamental doctrine of constitutional law in the UK, the purpose of a constitution is to limit such powers of government and divide powers amongst different bodies with a view to establishing a check on those powers, called the separation of powers

In the eighteenth century, there was a balance of powers of the King, House of Lords and the House of Commons in the United Kingdom, and at the time that Dicey advocated his views about the constitution, this balance of power was followed more avidly than in the present day, as the Monarch had considerable discretion to choose the Prime Minister, and the House of Lords had the same powers as regards participating in making of legislation as the House of Commons.  The Preamble to the Parliament Act 1911 removed the House of Lord’s power to veto legislation passed by the House of Commons, and since thereafter there has been no constitutional mechanism by which the House of Common’s supremacy can be challenged.

The new Labour government has proposed to reform the House of Lords with a view to making it more representative of the population, and the House of Lords Act 1999 excluded hereditary peers from membership, also a Royal Commission was established in February 1999 with Lord Wakeham as chairman with a view to make recommendations on a second chamber and the composition thereof.

The report, published in January 2000, made recommendations which were largely supported by the government in their White Paper 4, and it was stated that hereditary peers would cease to have any privileged rights of membership, the majority of members of the second chamber (comprising of up to 600) would be nominated by political parties to reflect the shares of the national vote, 120 of those members would have no affiliation to a political party and 120 would represent the regions and nations.

Some authorities consider that constitutional conventions are not of much worth in their role as fulfilling the principle of constitutionalism 5, but it is clear that some conventions are more followed than others. During the Ulster crisis of 1913-1914 George V thought about refusing the Royal Assent, but nowadays that would be almost unthinkable because of firm conventions limiting the powers of the Monarch, which have led to the evolution of a democratic society in the United Kingdom. Another convention which is always followed is the leader of the majority being chosen as the Prime Minster in government.  The conventions which are subject to the government’s discretion are those which apply to the relationship between the political executive, Parliament and the public.

4 The House of Lords - Completing the Reform: Cm 291
5 Bogdanor, (ibid)

Regarding the transfer of powers from Parliament to Scotland, Wales and Northern Ireland, the general principle is that British parliamentary sovereignty over the entire UK is legally absolute. However, since the election of the new Labour government, firstly the creation of the Scottish Parliament via the Scotland Act (SA) 1998 has been intended to strengthen the union between Scotland and the remainder of the UK by allowing the Scots to run their own domestic affairs with regard to local government, health, education, housing, economic development and transport. The UK Parliament retains authority over constitutional, foreign and EU affairs.

Although there has been a devolution of powers in this instance, it can be argued that the UK Parliament retains full sovereignty and supremacy, because the Scottish Parliament has been devolved via UK legislature, and at section 28(7) of SA 1998, it states: “This section does not affect the power of Parliament of the United Kingdom to make laws for Scotland”.

The Scottish Parliament was also approved by a referendum of the Scottish people, which was argued by Bogdanor 6 as being necessary to maintain the principle of constitutionalism with regard to Parliament’s transfer of powers. Furthermore, there are limitations upon the Scottish Parliament’s power to make legislation, as stated in section 29(1) SA 1998, stating that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.

In relation to Wales, the Government of Wales Act 1998 did not intend to give Wales the same amount of autonomy as Scotland, but the government’s White Paper on the Welsh Assembly, with regard to responsibility for domestic issues such as local government, housing, transport, health and industry lying with the Welsh Office, made the proposal for a Welsh Assembly to which most of such matters should be assigned, although it would not have any legislative power. There is obviously no devolution in this case of the UK Parliament’s legislative powers.

Regarding Northern Ireland, following the implementation of the Good Friday agreement in Belfast following negotiations amongst the late Mrs Mo Mowlam, Northern Ireland Secretary and other parties, the Northern Ireland Act (NIA) 1998 has been activated. The guarantee that the UK Parliament would not seek to alter Northern Ireland’s status without a referendum is stated in section 1 NIA 1998, following on from section 1(2) Ireland Act 1949 and section 1 Northern Ireland Constitution Act 1973, but as that guarantee has not been entrenched, Parliament could in theory alter Northern Ireland’s status without calling a referendum

However, the UK Parliament would be likely to recognise its obligations in this respect and abide by the convention to do this.  In fact, the result of the Good Friday agreement was that the majority of people in Northern Ireland should take the decision of whether to support a united Ireland with independent sovereignty or to continue the union with Great Britain (GB), and the New Northern Ireland Assembly was elected by virtue of the Northern Ireland (Elections) Act 1998, to deal with matters dealt with by the Northern Ireland Office departments; finance, agriculture, economic development, education, environment, health and social services.

6 (ibid) at 223-4

It should be noted that bills passed by the Scottish and new Northern Assemblies need to be approved  by Royal Assent, and that the new bodies will be subject to the control of the Judicial Committee of the Privy Council.  The Queen remains as the head of British government, thereby symbolising the unity of British sovereignty, and will approve the appointment of Scottish ministers, including the First Minister, who together with the Welsh Secretaries of the Welsh Assembly will need to swear the oath of allegiance to her.

With regard to devolution of legislative authority to England to appoint regional assemblies, there has not been any movement in this respect, and although the government could only consider this by holding a referendum as it would result in constitutional reform, the Regional Development Agencies Act 1998 has established the agencies throughout England, which will deal with issues such as economic development, housing, investment and employment. The referendum in 1998 established the Greater London Authority, comprising of a London Assembly and Ken Livingstone as the elected mayor, and the issues dealt with include economic development, planning, public transport and topically, the London Olympic Games.

In relation to the UK government’s move into the EU, the Crown has, by virtue of the royal prerogative in foreign affairs, the power to enter into Treaties that bind the UK in international obligations, but cannot alter the rights of the people in the UK.  The UK originally joined the European Economic Community (EEC), now the European Community (EC) by virtue of the European Communities Act 1972, and all the legislative and executive power are vested in the EC organs, not those of the states.

From the case of R v Secretary of State for Transport, ex parte Factortame (No. 2) 7 the House of Lords noted, per Lord Bridge, that EC law had supremacy over the national law of states, including the UK. The general principle is that wherever British law conflicts with EC law, national legislation should not be applied. Consequently, there has been an amendment to the concept of parliamentary sovereignty in the UK, particularly since the incorporation of the principles of the ECHR into domestic law by the HRA 1998, and a significant area of legislative power has passed to the EC, although Parliament stills retains the authority whether to leave the EU, which is obviously will not occur with regard to the present government.

7 [1991] 1 AC 603

In conclusion, the devolution of powers to Scotland, Wales and Northern Ireland can be argued not to have affected the position of the UK constitution in practice for the reasons provided, though these changes have brought about a change not seen since the end of the eighteenth century, as per Professor King 8. In particular, the legislative supremacy of Parliament has not been affected, and therefore it can be argued that devolution will not affect the UK constitution. The place of parliamentary sovereignty has also changed since the joining of the EU and the introduction of the HRA 1998, and further changes may occur in the future in this respect. There are attempts being made at reforming and modernising the House of Lords. In terms of sovereignty, it could be argued that the next step is federa

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The debate about the UK’s membership of the European Union has turned in large part upon the notion of control, “vote leave, take control” being the pro-Brexit campaign’s mantra. The idea that there has been a loss of control, and that the UK is increasingly governed from Brussels by an unelected, unaccountable “elite”, has fired the public imagination, giving the Leave campaign real traction. So too has the argument that control should be wrested from the EU by leaving it and re-asserting “sovereignty”. Leading Brexit campaigner Boris Johnson has thus argued that “you cannot express the sovereignty of Parliament and accept the 1972 European Communities Act” (which, among other things, gives priority to EU law over domestic law in the UK). Meanwhile, Nigel Farage, leader of the pro-Brexit UK Independence Party, wishes to see Britain re-establish itself as “a proud, patriotic country that has control of its borders, represents itself on the world stage and makes its own laws in our own sovereign Parliament”.

As these comments indicate, when the language of “sovereignty” is used in the UK, it implicates not only the sovereignty of the UK as a State, but also the sovereignty of the UK Parliament as an institution. The principle of parliamentary sovereignty, along with the (not unrelated) absence of a codified constitution, sets the British constitution apart from most others. And while parliamentary sovereignty and State sovereignty are distinct, the absolutist terms in which the former is sometimes understood colours — and skews — the way in which the latter is conceived of in the UK.

The principle of parliamentary sovereignty holds that the UK Parliament can make whatever laws it wishes; that no “higher” constitutional laws or principles constrain Parliament’s legislative authority; and that other institutions, including the courts, must accept as valid laws duly enacted by Parliament. This sort of untrammelled legislative power does not sound like a recipe for liberal democracy — and the fact that fundamental rights are generally respected in the UK, including by Parliament when it enacts legislation, is thanks not to legal control of, but political restraint by, law-makers. It is in this sense that the UK has a “political constitution”, meaning that it consists not only of legal but also of non-legal norms. This, in turn, means that — perhaps counterintuitively — something can be both “unconstitutional” (in the sense of conflicting with non-legal constitutional norms) and legal (because it does not conflict with legal norms).

The legal and constitutional implications of EU membership sit uncomfortably with this tradition of political constitutionalism, not least because the doctrine of the supremacy of EU law connotes its priority over even Acts of the UK Parliament. The implication that British law-makers are subject to legal constraint is one that is alien to the traditional British constitutional mindset, immediately suggesting that EU membership threatens — or even extinguishes — parliamentary sovereignty. But the sovereignty-based objection to EU membership goes further, for it is amplified by the idea that membership causes British legislators’ hands to be tied not simply by law, but by European Union law. In this way, considerations of parliamentary and State sovereignty fuse, forming the basis for rhetorically powerful objections to EU membership.

Of course, the UK does not find itself in a unique position: all Member States are subject to the principle that EU law is supreme. But the sovereignty argument has particular purchase in the UK — not only because legal constraints upon law-makers’ powers are anathema to the tradition of parliamentary sovereignty, but also because, according to some, the UK is peculiarly disadvantaged by the absence of a written constitution. For instance, the President of the UK Supreme Court, Lord Neuberger, has argued that while “Germany has a Constitution [that] enables a German court to say that German law sometimes trumps EU law”, such an option would be open “much more rarely, if at all, … to a UK court as we have no constitution to invoke”. On this analysis, the UK finds itself uniquely defenceless against what the celebrated English judge Lord Denning once referred to as an “incoming tide” of EU law that “cannot be held back”.

The legal reality, however, is more complex. The extent of the priority that EU law enjoys in the UK is (as a matter of domestic law) within the control of Parliament — a position affirmed by legislation enacted as recently as 2011. Section 18 of the European Union Act 2011 stipulates that EU law has effect in the UK only because UK law so provides. It follows that the priority enjoyed by EU law in the UK is the product of an exercise of parliamentary sovereignty, not a threat to it.

Recently, however, in the HS2 case, the Supreme Court went further. The issue was whether a parliamentary process that was to be used to consider proposals for the UK’s new high-speed rail network would provide the level of scrutiny required by the EU Environmental Impact Directive. This raised the question whether the courts could be required by EU law to examine the adequacy of parliamentary processes, bearing in mind the fundamental principle — reflected in Article 9 of the Bill of Rights 1689 — that parliamentary proceedings “ought not to be impeached or questioned in any court”. Although, in the end, the Court held that the Directive did not require it to do anything that would breach that principle, it nevertheless considered the general question whether EU law could require it to set aside fundamental constitutional principles. It concluded that in the event of conflict between such principles and EU law, UK courts should give priority to the former, the EU doctrine of the supremacy of Union law notwithstanding.

This was so, said the Supreme Court, because the terms on which EU law enters the UK legal system are controlled by Parliament — and when Parliament passed the European Communities Act in 1972, giving priority to EU law, Parliament was to be taken to have assigned such law only a qualified form of priority. In particular, it was not to be taken to have given it precedence over the UK constitution’s foundational principles. In the absence of a codified constitutional text, there is inevitably a degree of uncertainty about what those principles are. Nevertheless, this judgment demonstrates that the absence of a written constitution in the UK does not place it in a uniquely vulnerable position when it comes to the interaction of EU law and domestic constitutional values. To anticipate a point that is developed below, the HS2 case thus demonstrates the Supreme Court’s willingness — by privileging certain local fundamental values — to enforce what might be considered a form of constitutional subsidiarity.

The argument that the UK should leave the EU in order to restore sovereignty implies that EU membership presents a unique challenge to sovereignty — and that by leaving, that challenge would be definitively quashed. The truth, however, is that whether or not the UK remains a member of the EU, the notion of parliamentary sovereignty inadequately describes the reality of modern Britain’s constitutional architecture. Thanks to devolution, legislative authority in the UK is now dispersed in ways and to extents that have transformed the territorial constitution. And although devolution is technically understood to be a rescindable gifting of power by Westminster to other institutions, that analysis is increasingly difficult to sustain. For instance, section 63A of the Scotland Act 1998 — a provision inserted by the Westminster Parliament into the Act following the Scottish independence referendum — provides that “the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements” (emphasis added). This provision acknowledges that the in-effect irrevocable and substantial transfers of power that the UK Parliament has made to the devolved legislatures have instituted a new, quasi-federal chapter in British constitutional history — one that presents at least as great a challenge to the notion of parliamentary sovereignty as does EU membership. Yet in spite — or perhaps because — of this, devolution has proven to be very popular with citizens in relevant parts of the UK.

The fact that devolution amounts to a strong political — and now arguably quasi-legal — constraint upon the principle of parliamentary sovereignty demonstrates that that principle is not sacrosanct. Indeed, the concern of the average citizen has nothing to do with abstract legal questions about whether this or that constitutional arrangement impinges upon the sovereignty of the UK Parliament. But the average citizen certainly is concerned about whether power is exercised responsibly, whether those who wield it can adequately be held to account, and whether those who exercise power do so over, and form part of, a cohesive political community.

This suggests that the underlying concern in the UK is not so much about the sovereignty either of the UK Parliament as an institution of or the UK state as a monolithic entity, but about subsidiarity — albeit that the term “subsidiarity” has not much featured in the Brexit debate, not least because of its undertones of European technocracy. Devolution has been considered a success because, consistently with subsidiarity, it has re-sited power in ways that allow it to be exercised closer to those who are liable to be affected. This has not (quite) fatally weakened the UK as a political unit — although the closeness of the result in the 2014 Scottish independence referendum certainly evidences considerable erosion of the ties that bind Scotland to the rest of the UK. But it does demonstrate that far from wishing to see power vested in a single, central institution, there is a great appetite in the UK for the dispersal of power — something that is now being extended to England, albeit modestly and unevenly, under the Cities and Local Government Devolution Act 2016.

The question then arises whether that appetite extends to the distribution of power not only ‘down’ to local — such as devolved — institutions, but also ‘up’ to transnational institutions such as the EU. Subsidiarity, after all, does not imply devolution ad infinitum; it is equally capable of accommodating governance at national — and supra-national — levels, given that some issues can most effectively be dealt with in such ways. And the transmission of authority to supra-national institutions is not inherently any more of a challenge to sovereignty — in either its parliamentary or State forms — than is devolution. Indeed, the very fact that the EU referendum is being held is evidence of the reversibility of the arrangements into which the UK and EU have entered under the the EU treaties, and hence of the fact that EU membership is not an existential threat to British sovereignty, such as it is. More than that, however, the foregoing analysis reveals the argument that the UK should leave the EU so that sovereignty can be restored to be the gross oversimplification that it always was. The notion of sovereignty increasingly fails to capture both the reality of the UK’s place in what is (EU or no EU) an increasingly interconnected legal world, and the way in which power is diffused across the UK rather than being jealously concentrated in a single sovereign legislature in London.

It follows that attempting to frame the question of Britain’s EU membership in terms of whether sovereignty should be restored lends the debate a binary character that is ultimately specious. The real issue, then, is not whether membership of the EU is or is not compatible with some absolutist notion of sovereignty, but whether the UK’s relationship with the EU reflects an acceptable balance of power between national and supra-national tiers of government. And that, inevitably, is a matter upon which voters will, and do, differ sharply — not least because of their radically contrasting views about the extent to which the European Union is a political community of which they are, feel, and want to be a part. “Vote leave, take control” is an undeniably catchy slogan. But its very simplicity — and the implication that EU membership is all that stands opposed to a pristine British notion of sovereignty — does a disservice to the complexity, not to mention the momentousness, of the decision that the British electorate must take today.

The original version of this article, published in German on 23 June 2016 in the Frankfurter Allgemeine Zeitung, can be accessedhere. I am grateful to Alexander Schafer for his work on the German translation of the piece.

Tags: 2016, Brexit, constitutional law, EU law, featured


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