In an earlier post, I noted that the doctrine of parliamentary sovereignty, at least as traditionally understood, would prevent a UK court, such as the Supreme Court, from simply refusing to apply the Rwanda Bill as unconstitutional. I also noted, however, that some senior judges have questioned the orthodox view that parliamentary sovereignty admits of no exceptions. The latter point is developed in a letter to the Daily Telegraph by four senior barristers, including former Attorney General Sir Geoffrey Cox MP. They set out several reasons why, in their view, it would be mistaken to press for the Bill to go even further than it already does in restricting the scope for legal challenge to decisions to remove asylum-seekers to Rwanda. One the reasons advanced is as follows:
[T]he assumption that Parliament is entirely sovereign is only that — an assumption, which the courts have long indicated could be revisited in the event that Parliament did the unthinkable. Legislation which mandated the removal of someone, without the right of appeal, despite clear evidence that this would result in them suffering death or serious and irreversible inhumane treatment, would test that assumption. And if the Supreme Court were to quash or disapply an Act of Parliament on domestic constitutional grounds for the first time, it will be impossible to put the constitutional genie back in the bottle.
In response, Conservative Peer and former Brexit negotiator Lord Frost wrote:
We’ve seen some remarkable things in the last few years, but I must admit I didn’t foresee several KCs describing parliamentary sovereignty, the most fundamental doctrine of our constitution, as just an ‘assumption’ and suggesting the courts could take it upon themselves to overturn it.
Do Cox et al have a valid point: if the Bill were to include even greater restrictions on the judicial role, would this risk a showdown with the courts that could sound the death knell of parliamentary sovereignty? Or is Frost correct to imply that their argument is built on a false premise that wrongly views sovereignty as other than an absolute and immovable aspect of the constitution?
These are big questions that go to the very nature of the UK’s unwritten constitutional settlement, and I certainly will not attempt to resolve them in this short post. (I have explored them in more detail elsewhere, including in an article in the New Zealand Law Review on the place of bills of rights in unwritten constitutions and in an article in Public Law analysing the implications of the Supreme Court’s judgment in the Evans case.) Rather, my purpose here is the more modest one of suggesting that both Cox et al, on the one hand, and Frost, on the other, are guilty of oversimplifying an inherently complex issue.
Judicial treatment of parliamentary sovereignty
Cox et al are in good company when they say that parliamentary sovereignty is an ‘assumption’ if, by that, we take them to mean that its nature and contours are to be understood in more subtle terms than Frost — who appears to view sovereignty in absolutist terms — allows. Indeed, Sir William Wade — one of the great constitutional scholars of the twentieth century, and hardly a maverick — argued in a seminal article in the Cambridge Law Journal in 1955 that, at the end of the day, parliamentary sovereignty is simply a ‘political fact’ that ‘lies in the keeping of the courts’. This meant, said Wade, that ‘it is always for the courts, in the last resort, to say what is a valid Act of Parliament’.
To be clear, this does not mean that Wade was suggesting that we should therefore expect judges simply to pick and choose whether to recognise Acts of Parliament as valid laws. It would, he said, imply a ‘revolution’ — a rejection of the existing constitutional order — if a court were ever to take such a step. But nor did he deny that the taking of such a step could be contemplated. Indeed, he later argued that the Appellate Committee of the House of Lords had taken precisely such a step in Factortame (No 2) when it disapplied an Act of Parliament in favour of EU Law.
The idea that parliamentary sovereignty is other than absolute has found favour with some senior judges in recent years. The Jackson case — decided in the aftermath of an asylum and immigration bill that caused such concern as to prompt Lord Woolf to suggest it might be a catalyst for a written constitution — is an example. In it, Lord Steyn said that while parliamentary sovereignty was ‘still the general principle of our constitution’ (his emphasis), the ‘classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom’. He went on to say:
The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. 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. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.
Similar views were expressed in Jackson by Lord Hope and Baroness Hale. Lord Hope said that while the constitution was still ‘dominiated by the sovereignty of Parliament’, it is ‘no longer, if it ever was, absolute’, while Baroness Hale — implicitly referring to the asylum and immigration bill that had contemplated ousting the courts’ jurisdiction over certain decisions — said that ‘[t]he 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’ (my emphasis).
This is not to suggest that we should infer from such dicta that a court would take such a step lightly — or that a court would necessarily ever take such a step at all. As Dawn Oliver pointed out, such judicial intervention would be fraught with constitutional danger. Moreover, for every dictum casting judicial doubt on an absolutist view of parliamentary sovereignty, it is possible to find others that take a more orthodox approach. A good example is supplied by Lord Wilson’s judgment in Evans, concerning the disclosure of the then Prince Charles’s correspondence with Ministers. Lord Wilson took aim at the Court of Appeal and members of the Supreme Court majority, who had subjected a legislative provision to what Lord Wilson considered unacceptably creative interpretation so as to render it compatible with fundamental constitutional principles:
How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence! But the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FOIA. It re-wrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.
Thus the view of some judges that other constitutional principles might sometimes cut across — and cut down — parliamentary sovereignty is certainly not a universal one. At the same time, however, it goes too far to suggest that it is a view that has no basis in the reality of judicial discourse.
The conceptual limits of parliamentary sovereignty
More recently, a further strand to this sort of thinking has emerged: one that suggests Parliament may be unable to disturb basic constitutional principles — and, in particular, to rob courts of their legitimate constitutional role — not in spite of, but because of, parliamentary sovereignty. In the Privacy International case, Lord Carnwath said that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’.
Not all the Justices were prepared to go as far as Lord Carnwath in suggesting that there may, in effect, be higher constitutional principles that cabin Parliament’s authority to legislate. But some of those who did not go as far as Lord Carnwath were nevertheless prepared to accept that the sovereignty of Parliament and the courts’ jurisdiction to determine legal questions exist in a symbiotic relationship that means the latter cannot be undermined consistently with the former. For instance, Lord Wilson — whose views, we have seen above, are relatively orthodox — tentatively expressed the view that in circumstances in which a statutory decision-maker has limited powers that it is said to have exceeded, it may be impossible for Parliament to preclude courts from determining whether such an excess of jurisdiction has in fact occurred. In expressing this view, Lord Wilson referred to what he called the ‘classic judgment’ of Laws LJ in Cart, in which Laws LJ said that it is imperative, if parliamentary sovereignty is to exist, for there to be independent courts that can interpret and apply its enactments:
If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament.
Laws LJ insisted that denying Parliament the authority to dispense with such arrangements — and hence to exclude judicial review — was not inconsistent with, but was rather than affirmation of, parliamentary sovereignty:
This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another.
The upshot is that it is, at the very least, simplistic to proceed on the basis that parliamentary sovereignty is absolute. Even viewed in its own terms, as Laws LJ so clearly explained, it presupposes and relies upon other constitutional principles. To put the matter another way, Parliament can be meaningfully sovereign only within a functional legal and constitutional system — and such a system can only exist if its other component elements are permitted to play their proper part.
From all of this, it follows that even if we allow that parliamentary sovereignty is more than an ‘assumption’, it is also a principle whose superficial rigidity cloaks a deeper subtlety. The courts would — and should — think long and hard before rejecting any Act of Parliament as unconstitutional. And it is far more likely that a court, faced with legislation that placed basic constitutional principles in doubt, would seek to triangulate through statutory interpretation rather than risking a constitutional crisis through explicit repudiation. But it does not follow that we can be confident that a court would — or should — never do so. Nor does it follow that, if a court were to take such a step, it would necessarily be unconstitutional. Indeed, on Laws LJ’s logic, it does not even follow that it would be a denial, as distinct from an affirmation, of parliamentary sovereignty itself.
Photo credit: Diliff, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons
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