Parliament Is Not Sovereign…Not Any More
“Parliamentary sovereignty is a fundamental principle of the UK constitution…Parliament has the right to make or unmake any law whatsoever; and further no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.”
This passage, taken from the judgment of Lord Neuberger in R (Miller) v Secretary of State for Exiting the European Union, expresses an axiomatic truth of British constitutional law. Parliament, or more specifically, the Queen, acting with the advice and consent of both the House of Commons and the House of Lords, has the power to make and unmake whatever law she chooses.
More fundamentally, no person or body can override an Act of Parliament — not the judiciary, not the Prime Minister, not even, at least on one view, the ECJ. So it has been since the Glorious Revolution of 1688 and so it ever shall be…or will it?
There is an argument to be made, I believe, that the British Constitution has changed. That the political reality that underpins and legitimates our legislative process is no longer accurately reflected in the textbooks. That recent events, most notably the EU referendum, but also its predecessors, the referendum on the Alternative Vote in 2011 and the EEC referendum in 1975, have put new limits on the powers of the Crown in Parliament. In summary, I believe that Lord Neuberger may be wrong.
Parliamentary Sovereignty, like all foundational legal doctrines, is a political fact — not a legal one. It wasn’t plucked by the drafters of the Bill of Rights from some jurisprudential realm of the forms. It has come about through a chain of highly contingent, highly unlikely political events.
So too in America. The Constitution divides and delineates political power, not in deference to some higher law, but because the Founders were readers of Montesquieu. Whatever the peculiarities of the system in question, we refer to these meta-laws as ‘rules of recognition’, a notion first developed by Professor Hart in 1961 to describe the process of law-making in the UK, but which can equally be applied to any body politic across the world.
The rule of recognition does not have to be democratic in nature. In North Korea for example, the rule of recognition simply states that whatever the Supreme Leader decrees is law. The point is that the rule of recognition can be whatever the people want it to be so long as a large enough proportion agree, or are compelled to agree by force.
What this illustrates, however, is that the rule of recognition can change in what Professor Hart calls ‘a revolution’. Again, a revolution doesn’t necessarily have to involve heads on spikes, it can be a quiet recognition, slowly perceived, that the old legal order has changed.
This brings me to the thrust of my argument. I believe the UK’s rule of recognition has changed. It is no longer accurate to say that nothing can override an Act of Parliament, because, in political terms, this simply isn’t true.
Imagine a hypothetical situation in which, having secured Parliamentary permission in March, Theresa May initiates Article 50 and begins the process of negotiating our exit from the European Union. Now imagine that in April, Parliament has a change of heart. A Private Member’s Bill proposed by Anna Soubry sweeps through both Houses, receiving royal asset before the end of the month. Assume, for the sake of argument, that the European Commission accepts the vote as an authoritative statement of Britain’s desire to remain in the European Union, and calls a halt to the planned departure. What then?
I’ll tell you what then, there would be blood on the streets. Heads would roll. The nation would writhe in a frenzy of rioting and mass hysteria. It would be as if the London riots of 2011 had respawned and replicated in every city and town of England.
It may be, as their Lordships agreed in R (Miller), that under the old rule of recognition the referendum has no legal effect. But the old rule of recognition is over. A new rule of recognition is in place, one written on the lips of 17 million disaffected and disenfranchised British voters. It would be, as Hart puts it, a revolution.
Fortunately, this hellish vision doesn’t need to come true for the revolution to be realised. It is sufficient for future law makers to recognise the implications of defying a referendum vote. Nor would such a state of affairs be entirely without precedent. The historian Robert Tombs has recently written a fascinating article tracing the origins of the referendum to the Anglo-Saxon concept of the Council of the English People. Of course, in reality, the prospect of a Parliament rejecting the outcome of a referendum are slim to none, so this theory will never be tested. But it is a theory that our current crop of politicians would do well to ponder nonetheless.
28 January 2017