Parliamentary sovereignty in a multidimensional constitution: some preliminary thoughts

5 comments

I am starting work on a piece—a contribution to an edited collection—that will examine the contemporary relevance of the doctrine of parliamentary sovereignty. The following represents a preliminary sketch of the arguments that the chapter will advance—an abstract of sorts. Any comments (via the comment function below or by email) would be welcome.

For all that it is fashionable to criticise it, the Diceyan notion of parliamentary sovereignty remains a remarkably resilient feature of the United Kingdom’s constitutional arrangements. It seems to be capable of withstanding constitutional changes and innovations that, at least at some level, might be thought to challenge it. Examples of such developments include British membership of the European Union (and the associated doctrine of the supremacy of EU law); the restraining effect (at least upon the UK as a matter of international law) of international obligations (of which the UK’s treaty obligations under the European Convention on Human Rights are a familiar example); the devolution of authority to new legislatures; and the growing prominence of common-law “constitutional rights”, including tentative judicial suggestions as to their constitutional fundamentality.

One way of looking at developments such these is to place them in opposition to a pristine notion of parliamentary sovereignty, according to which Parliament’s legislative freedom is unbounded. The narrative implicit in that classical doctrine seems far-fetched when the constraining influence such developments is factored into the analysis. Can Parliament really legislate in opposition to its obligations under the ECHR? Could it reverse—or even abolish—devolution, or (more modestly) override the wishes of a devolved legislature in a particular field? Without leaving the EU, is it realistic to propose that a “sovereign” Parliament is free to derogate from EU law, provided that it expresses its intention to do so in sufficiently clear terms?

The answers to those questions may well be “no”: but the nature of the questions are arguably such that the notion of parliamentary sovereignty is not itself implicated. In other words, Parliament’s “inability” to do these things may explicable in a way that leaves the notion of parliamentary sovereignty untouched. (This is not to suggest, however, that I am seeking to defend the sovereignty doctrine in the sense of attempting to establish its adequacy: rather, I argue that for all that it might be accurate viewed in its own terms, it is an incomplete—and in that sense inadequate—way in which to understand the British constitution and Parliament’s place within it.) How, then, might the phenomena sketched above be characterized, if not as “challenges” to parliamentary sovereignty?

They can—and, arguably, should—be understood in terms that present no outright challenge to the orthodox account of parliamentary sovereignty. Rather, they constitute, give rise to or presuppose a network of constitutional norms—legal and non-legal, written and unwritten—that, while not technically inconsistent with parliamentary sovereignty, supply crucial features of the context within which Parliament’s legislative authority is to be understood and the legitimacy of its exercise assessed. Although they do not rule out—in the sense of making unconstitutional as a matter of domestic law—any particular legislative action by Parliament, they condition the exercise of its power and inform assessments of what might be termed its “soft constitutionality”. (I will, however, go on to question whether the distinction implicit in this characterization—between hard and soft forms of constitutionality—is helpful.)

The doctrine of parliamentary sovereignty, if accepted, necessarily precludes the existence of hard-constitutional limits on Parliament’s legislative authority: the absence of such limits forms the essence of the sovereignty doctrine. In contrast, there is no logical difficulty in conceiving of constitutional factors—including the rule of law, common-law constitutional rights, the UK’s international legal obligations (including under the ECHR and the EU Treaties), and the principles of multilayered constitutionalism implicit in the devolution settlements—as benchmarks against which the soft constitutionality of UK legislation may fall to be assessed. Unilateral interference in a devolution settlement or flagrant disregard of the UK’s international human-rights obligations may therefore be regarded as unconstitutional in a soft sense even though the doctrine of parliamentary sovereignty secures the hard constitutionality of such legislation. This echoes familiar distinctions between (for example) practices that may be unconstitutional, in the sense of breaching established constitutional conventions, yet nevertheless legal.

We might, however, question the usefulness or appropriateness of the distinction between soft and hard forms of constitutionality. Arguably, it presupposes a particular perspective that overlooks an increasingly prominent feature of the UK’s constitution. More precisely, it adopts a domestic-legal lens and treats considerations of that nature paradigmatically. This may be thought insensitive to what might be termed the multidimensional nature of the UK’s constitution, which, in turn, makes it inappropriate to seek to understand that constitution only through the one-dimensional prism of parliamentary sovereignty. The notion of multidimensionality consists not only in the multilayered nature of the modern constitution—which encompasses or intersects with several tiers of authority at the domestic and international levels—but also its sometimes-Janus-like politico-legal nature.

Its multidimensional nature renders inadequate any attempt to explain or understand the constitution from a single perspective, such as that which is at least implicit in the doctrine of parliamentary sovereignty. That doctrine exists on axes that are legal and domestic in nature, and, as such, may not come into directcontact—or explicit conflict—with other constitutional axes that may be political or non-domestic in character. This accounts, for instance, for the possibility of legislation being valid and lawful in domestic-legal terms but contrary to the UK’s obligations under the ECHR or the EU Treaties. However, this does not mean that the restraining force of those other constitutional axes can be wholly discounted. They may not constitute constraints viewed from the perspective of the particular part of the constitution that parliamentary sovereignty inhabits—but the particular constitutional space occupied by parliamentary sovereignty, as a domestic-legal doctrine, is accounted for by only a subset of the axes that form the constitution’s several dimensions. The fact that non-legal and legal-non-domestic factors do not directly collide with the domestic-legal doctrine of parliamentary sovereignty does not rob such factors of constitutional relevance, once the constitution is conceived of in multidimensional terms. Nor does it necessarily mean that non-legal and legal-non-domestic factors can properly be relegated to a second-order status by means of treating them only as benchmarks of a soft form of constitutionality.

This analysis helps to explain why (as Dawn Oliver has noted) there is a degree of uncertainty about what would happen if there were a constitutional crisis—e.g. if Parliament enacted legislation that was flatly inconsistent with a fundamental constitutional principle, or if the courts refused to acknowledge a provision in an Act of Parliament as a valid law (perhaps because, in the first place, it infringed a fundamental constitutional principle). Such extraordinary circumstances have the effect of bringing different dimensions of the constitution face to face with one another in a way that appears to call for their hierarchical ordering, so as to determine whether one may assert priority over the other. That ordering function is one that may be served by a written, higher-law constitution: indeed, precisely that function is served by such constitutions in many countries. One of the defining features of the UK’s constitution, in contrast, is that its different dimensions sit in an ambiguous relationship with one another in the absence of the potentially unifying, or at least mediating, force of an authoritative constitutional text.

Here, however, we encounter perhaps the greatest paradox of the UK’s constitution. The fact that the constitution encompasses many dimensions, only one of which is occupied by parliamentary sovereignty, helps to guard against the eventuation of precisely those circumstances that might call for a clearer constitutional ordering. This is because the constitution’s different dimensions sit not in absolute isolation from one another, but in relationship and tension. It is therefore often possible—and in the interests of relevant institutional actors—to avoid constitutional crunch questions that, if directly confronted, would call for the interrelation of the constitution’s many dimensions to be articulated and ordered in a more explicit way. It is in the multidimensional character of the constitution, and the fact that those different dimensions occupy constitutional universes that are not merely parallel to one another but which intersect in subtle-yet-important ways, that the fundamental nature of the UK’s unwritten constitution—and the complexity of Parliament’s place within it—consists.

Where does this leave us? Is Parliament sovereign? Yes, it is: or, more precisely, the doctrine of parliamentary sovereignty is an accurate statement of domestic constitutional law. But the significance of that fact diminishes once we recognise that it represents only one fragment of a much larger constitutional tableau.

5 comments on “Parliamentary sovereignty in a multidimensional constitution: some preliminary thoughts”

  1. Dr. Elliott,

    I found your comments very provoking – by looking to categorise or label different aspects of the constitution this does provide a means by which to uphold the party line that Parliamnent is sovereign.

    I do have one question however, proponents of the Common Law Constitution would surely argue that there doctrines such as the Rule of law and constitutional fundamentals also originate from within the domestic and legal sphere. How would you characterise such principles? Do they not represent a threat from within the domestic and legal constitution?

    Many thanks.
    Constitutional Law Student.

    1. Ian, thanks for your very good question. In fact, I have been thinking about this while writing the longer piece of which the blog post was an initial sketch. You are right that there are features of our system —which we might call the rule of law, or fundamental constitutional principles—that sit within our domestic-legal order and are arguably in tension with parliamentary sovereignty. As a result, it not necessarily the case that everything which might be considered a “challenge” to sovereignty is confined to a constitutional dimension other than that which constitutes the sovereignty doctrine’s “home” dimension.

      The question then becomes how we account for that—and, in particular, whether this calls into question the notion of sovereignty as a matter of domestic constitutional law. There is obviously a normative argument, forcefully made by some commentators, that we ought to recognise constitutional norms that are so fundamental as to be immune from interference by Parliament. However, there is little, if any, evidence to show that this is currently the case. In contrast, there is evidence that establishes two things.

      First, that the domestic-legal constitutional environment is hostile to—even if it does not preclude—legislation that infringes fundamental constitutional values. It is in this way that we can account for cases that interpret legislation in a strained way so as to make it compatible with values, even if, taken at face value, it seems to cut across them.

      Second, there is evidence to suggest that some judges might consider refusing to uphold legislation that infringes a fundamental constitutional value, even though there is no clear evidence of judges having actually refused to do so. The upshot is an important uncertainty about what would happen if Parliament were to legislate contrary to such a value—just as there is a corresponding uncertainty about what would happen if judges were to refuse to recognise such legislation as valid law. That uncertainty, I argue, is itself a significant feature of our domestic-legal constitutional order, and operates as a restraint upon Parliament within its “home” constitutional dimension. But this is not the kind of restraint we find in written constitutions that place textual limits on legislative authority: it is a restraint born of the imprecision of our unwritten constitution. A more prosaic way of putting all of this is to say that the absence of any clear answer to the “what if?” question invites restraint on the part of both legislators and judges, meaning that, perhaps paradoxically, we are unlikely to encounter circumstances in which the thesis that Parliament is (or is not) sovereign is definitively tested.

      Ultimately, however, how we characterise the restraints that derive from this uncertainty is a difficult question. They might be thought to be “legal” because they emanate from (certain) judicial attempts to answer the “what if?” question. But they might equally be thought “political” because they invite political restraint on the part of Parliament. This suggests, in turn, that the different dimensions of the constitution—domestic-legal, international-legal, domestic-political, and so on—should not necessarily be considered to be hermetically sealed. This may seem to cut across the idea of holding the “party line”, as you put it, that Parliament is sovereign—but that is not my aim: rather, my aim is to show that questions about sovereignty are complex, and that definitive answers may be hard to arrive at, precisely because of the number of potentially-interlocking perspectives from which the question can (and must) be approached.

      I hope this helps.

      1. Dr. Elliott,

        Thank you very much for your reply. It was very helpful.

        I completely agree that it is extremely difficult to attempt to distinguish and categorise between “legal” and “political” aspects of the constitution and that perhaps a failure to recognise the intricate relationship between the two has contributed to inconsistency between different theorists. Those arguing for PS may be setting the boundaries of their Constitution in a much more restrained manner to those who argue that it is no longer a fundamental principle of the UK Constitution.

        With regards to the points that you raised in your reply I just wanted to ask a couple of questions.

        Having studied Constitutional Law for the past year it is clear that much of the uncertainty and points of friction within the field can in some way be traced back to the unwritten constitution and the ambiguity therein.

        Do you think that regardless of the form that a written constitution would take, were we ever to adopt one, that there are in fact advantages in having an unwritten constitution? In one sense its malleability affords both Parliament and the judiciary a certain amount of flexibility, but then as you pointed out in your reply it can also be seen to have a choking effect on the Constitution. The inherent uncertainty means that both sides are unwilling to dip their toes in and test the water.

        Furthermore were we to adopt a written constitution would it be possible to integrate a substantive conception of the rule of law?
        There is an argument for saying that we should give it some formal recognition and so should lay down the position that it has in relation to the doctrine of PS.

        But then on the other hand one could argue that the very act of enumerating the content of the Rule of Law is both intrinsically difficult and in some sense is undermining the very principle that it is looking to support in that future parliaments will be bound by the concepts laid down by the parliament of the day.

        Once again many thanks for your help.

        Best wishes
        Consti Student.

  2. I certainly agree that there are advantages in having an unwritten constitution—just as there are disadvantages. Whether one would be “better” than the other is largely a question of perspective, and of the objectives one sets for the constitution. That’s a very big question that I can’t easily address here in detail. My sense, however, is that the unwritten constitution only works because there is a relatively high degree of trust—both on an inter-institutional level, and in terms of public trust in the system. So long as that trust endures, I think that the unwritten system works reasonably well. It is easy to look to written systems and think that they must be superior, but that is not necessarily true: institutional comity may be preferable to institutional conflict; an unwritten system may facilitate a better mix of reliance upon political and legal forms of restraint; and the certainty promised by written systems may not be fully deliverable (given the inevitable uncertainty about the meaning of vaguely-worded constitutional texts). This is not to say that there are not strong arguments in favour of a written constitution: merely that we should be careful not to do down our own system unthinkingly.

    However, without a relatively high level of trust, an unwritten system becomes less workable: and it may be that we are currently witnessing an erosion of trust that will lead to the adoption of a written constitution some way down the line. The Scottish independence referendum may play a significant part in this: a “yes” vote would leave parts of the UK other than England feeling more exposed to England’s economic and political dominance, and might well lead to calls for federalisation (which would imply a written constitution); a “no” vote would likely result in “devo-max” in Scotland, thereby exaggerating the imbalances already present in the current system, and perhaps again resulting pressure for federalisation.

    As to your other point, regarding a substantive conception of the rule of law, I suppose if we were to adopt a written constitution, we could put into it whatever we wished. The likelihood, however, is that a written constitution would incorporate a bill of rights which would presumably include both formal and substantive guarantees. If so, then the rule of law—as an inherent aspect of the unwritten constitution—would occupy the spotlight to a lesser extent, with the focus being placed instead upon the textual guarantees in the constitutional bill of rights. This would provide greater certainly, in that the constitution would presumably stipulate the relationship between such rights and the authority of other institutions, including Parliament—the likelihood being that a written constitution would deny Parliament the authority to infringe the bill of rights. This would remove the hierarchical form of uncertainty that presently characterises the “sovereignty versus rule of law” debate (albeit that some commentators, notably Trevor Allan, argue that that is a mischaracterisation of the issue). However, it may not fully resolve the normative uncertainties that we find in the rule of law debate, simply because (as noted above) constitutional texts tend to be expressed in relatively abstract terms, thereby leaving a great deal to judicial interpretation.

    1. Does the landmark US case of Marbury v Madison (and indeed, a great deal of the history of judicial review in the United States) not show that a substantive characterisation of the rule of law is perfectly compatible with a codified constitution?

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