The paper discusses the nature of Parliamentary sovereignty. Beginning by reflecting on the understandings of sovereignty that were present before 1991, the paper argues that the rule was abandoned in the pivotal case of Factortame. Nevertheless, Parliamentary sovereignty has enjoyed an afterlife. Though no longer part of the United Kingdom's Constitution, it still continues to attract the attentions of scholars, who, knowingly or unknowingly, apply the label to new constitutional phenomena. The paper concludes by reflecting on the problems this can cause.
When British constitutional lawyers meet, talk often turns to the question of Parliamentary sovereignty; indeed, it can be hard to avoid the topic. Debates about the implications of Parliamentary sovereignty for the Human Rights Act, for devolution, and the supposed constraints it places on constitutional reform are all issues that inspire lively debate. The aim of this short paper is not to engage with these disputes directly, but to argue that they are misconceived. Whatever the precise content of Parliamentary sovereignty was, it ceased to be a feature of the United Kingdom's Constitution in 1991. That Parliamentary sovereignty continues to occupy our attention is hazardous; it risks distorting the answers we give to questions of constitutional reform and distracts our attention from important features of our modern Constitution.
This note proceeds in four stages. The first part of the paper outlines the nature of Parliamentary sovereignty. The second part describes its death in the pivotal case of Factortame. The third part recounts the afterlife of Parliamentary sovereignty; though no longer part of the United Kingdom's Constitution, it still continues to attract the attentions of scholars, who, knowingly or unknowingly, apply the label to new constitutional phenomena. The paper concludes by reflecting on the problems this can cause.
Much has been written about Parliamentary sovereignty and much about Parliamentary sovereignty is open to debate. Despite this, before 1991, there was broad agreement about its content. Parliamentary sovereignty was a legal rule that specified the legal force of statutes. The rule could be expressed in deceptively simple terms:
Whatever the Queen-in-Parliament enacts as a statute is law.1
A few inferences can be drawn from this rule. First, no institution within the Constitution has the capacity to declare that a statute is beyond the power of Parliament. Once the Court—or anyone else operating within the legal order—has concluded that a document is a statute, it is obliged to treat that document as legally binding, unless it has been repealed by later legislation.2 Second, when there is conflict between an older and a newer statute, the resolution of this conflict must give legal force to the newer statute—a resolution which may require a court to find that elements of the earlier statute are impliedly repealed.3 Each of these aspects of sovereignty—though refined and clarified by scholars—was found in the case law. Parliamentary sovereignty was a legal rule and, like other legal rules, its interpretation was a matter for the courts. A third inference was drawn by constitutional scholars:4 the Court's inability to rule that a statute was beyond the power of Parliament, coupled with the rule of implied repeal, entailed that Parliament could not effectively impose substantive limits on itself. A statute that purported to deny Parliament the power to legislate in a specified area would be impliedly repealed (or could be expressly repealed) by any later statute concerning the same matter.5
A number of debates emerged about this simple rule. Perhaps the most important of these was between the “orthodox” view of sovereignty, a group led by Sir William Wade, and the “manner and form” view of sovereignty, advanced by—among others—R. F. V. Heuston.6 Both Wade and Heuston agreed with the account of Parliamentary sovereignty developed so far. They disagreed, though, as to the capacity of the legislature to effectively limit its future incarnations by redefining the entity that courts should treat as constituting Parliament. Heuston contended that Parliament could specify what would, in future, count as “Parliament.”7 It could introduce manner-and-form restrictions; for example, requiring that, perhaps, in the future a measure would require the two-thirds support of the Commons before becoming law or the support of a majority of the population in a referendum.8 It remained the case that whatever Parliament enacted was law, only now Parliament was defined as something more than just a majority vote in the Commons and Lords (coupled with the assent of the monarch).
Wade, in contrast, argued that the rules by which statutes are identified are beyond the reach of Parliament. Though the manner-and-form model could exist within a legal order, it was not, said Wade, found within the United Kingdom's legal orders.9 In the United Kingdom, the legislative power of Parliament was constituted by the common law. In addition to the simple rule set out above, the common law contained further rules that defined Parliament and could not be altered by the legislature.10 If Parliament sought to redefine itself, this purported redefinition would be impliedly repealed the next time legislation was passed in the area. The courts, following the common law rules of identification, would see through the earlier statute that purported to redefine the legislature. Legal force would then be accorded to the enactments of Parliament as defined by the common law, and the supposed manner-and-form restriction of the earlier act would be impliedly repealed.
The debate between the orthodox and the manner-and-form schools of sovereignty had a number of dimensions; however, the key area of debate was the status of the Parliament Acts 1911 and 1949. The Parliament Act 1911 created a mechanism whereby statutes could be passed without the consent of the House of Lords, the unelected second chamber of Britain's bicameral legislature. The act effectively removed—in most circumstances11—the House of Lords’ power to reject bills that had the support of the Commons. The Lords was able to delay bills for two years, spread over three sessions, but if the Commons persevered, the bill would become a law. In 1947, the Commons sought to further limit the power of the Lords by reducing their capacity to delay bills; the limit was reduced from two years to one year, spread over two sessions rather than three. The House of Lords refused to give consent to this measure and, in the end, the enactment—which became the Parliament Act 1949—was passed under the power created by the 1911 act.
The orthodox school and the manner-and-form school provided different interpretations of the Parliament Acts. Supporters of the manner-and-form model of sovereignty argued that this was a clear instance of Parliament altering the rules under which the courts identified legislation; the Queen-in-Parliament was still sovereign, but now, sometimes, the Commons, without the Lords, constituted Parliament for the purposes of the rule. Wade, in contrast, argued that the Parliament Act 1911 created a mechanism through which delegate, or subordinate, legislation could be produced.12 Unusually, there was a payoff to this debate. If the legislation produced under the 1911 act was subordinate legislation, if the orthodox school was correct, the courts could check that these enactments fell within the scope of the power granted by the 1911 act. Furthermore, it was argued by some that the legislative power conferred by the 1911 act did not include the power to alter that same statute. In other words, the delegated lawmaking power found in the 1911 act could not be used to expand the scope of the power delegated. If this was correct, the Parliament Act 1949 was ultra vires and it, and the statutes passed under it, were invalid.13
When this argument was finally made before the House of Lords some fifty years later, in the case of Jackson,14 few would have bet on its success. If the Parliament Act 1949 fell, then, along with it, a number of other important pieces of legislation would have been called into question.15 None of the members of the House of Lords endorsed Wade's view that the statutes passed under the Parliament Acts were forms of delegated legislation, and—though the judges provided a number of different explanations for their decision16—the manner-and-form view that Parliament can redefine what counts as primary legislation appears to have been endorsed.17
Some recent commentators, most notably Alison Young and Peter Oliver, drawing on the work of H. L. A. Hart, have pointed to a further possible division. A line can be drawn between the “continuing” models of Parliamentary sovereignty, discussed in the previous paragraphs, and “self-embracing” sovereignty, a form in which the legislature possesses the capacity to place substantive limits on its future incarnations.18 On this understanding, the legal rule of sovereignty is within the reach of Parliament. Parliament starts life enjoying legal omnipotence but can, if it wishes, alter this rule and place limits on itself. However, prior to 1991, the self-embracing model of sovereignty was not supported by case law or by writers on the British constitution. Indeed, Hart himself only presented self-embracing sovereignty as a possible type of legislative power; he was not advocating this as an interpretation of the United Kingdom's Constitution.19 According to the pre-1991 views of sovereignty, there was broad consensus that Parliament could not place substantive limits on its lawmaking power. Once Parliament—however defined—had legislated, the legal duty of the courts was to apply that law.20
The principal—perhaps the only—justification for apparent absolutism of sovereignty is the value of reserving to the highest democratic body in the Constitution the final say about the content of the law.21 As Dicey argued, the electorate can, in the long run, prevail over a Parliament that has passed unpopular laws by throwing out their representatives at the next election.22 Paul Craig has styled this a “self-correcting” model of representative democracy, in which the electorate can bring an erring legislature back into line. By denying Parliament the power to fetter its future selves, the rule ensures that no area of law can be placed beyond the reach of the electorate.
The problem with this defense of Parliamentary sovereignty is that the rule is just too easily circumvented to provide effective protection. If the manner-and-form school was right, Parliament just had to word the limiting statute properly to impose such a constraint. For example, while Parliament could not prohibit future legislatures from passing a law to ban fox hunting, it could require that such a law may only be regarded by the courts as having been passed by “parliament” once it had received the unanimous support of the population in a referendum—a more complicated way of achieving exactly the same end. And even if the stricter view of Wade was accepted, it only required a little ingenuity from constitutional lawyers to bypass the rule. As an attentive reader of Dicey's footnotes would realize, even if Parliament could not limit itself directly, it could create a new (statutory) legislature that was limited, then dissolve without providing any mechanism for its own recall.23 The rule of Parliamentary sovereignty would remain, but the body it identified—Parliament—would no longer exist. Wade himself suggested another possible evasion: Parliament could alter the judicial oath so that new judges renounced sovereignty and committed themselves to the proposed restrictions on the legislature.24
Parliamentary sovereignty did not provide a protection for Parliament or for the electorate; it provided a puzzle to entertain constitutional lawyers. It was always the case that a parliament, if advised by clever lawyers, could fetter itself. Legal rules have an existence that is, of course, distinguishable from the historic or justificatory reasons that may or may not explain them—even if a legal rule lacks a good justification it may still be legally binding. However, given that Parliamentary sovereignty was so easy to circumvent, it is hard to see why it appeared to commend itself to so many. After all, why should a judge refuse to accept a direct limitation on the legislative capacity of Parliament while being prepared to accept exactly the same limitation indirectly?
The quiet death of Parliamentary sovereignty
When Britain was considering joining the European Community in the late 1960s and early 1970s, many politicians wondered if the limitations of membership were desirable.25 Constitutional scholars, in contrast, wondered if these limits were possible.26 By 1972, it was clear that membership in the Community brought with it the requirement that domestic courts give European Law priority over conflicting rules of national law.27 Such a duty ran directly contrary to Parliamentary sovereignty; if a later statute conflicted with an earlier statute incorporating European Law into English Law, Parliamentary sovereignty required that the later statute impliedly repeal the earlier, incorporating statute. Parliament in 1972 did not, as it might have done, employ cunning constitutional lawyers to evade the problem by using one of the devices discussed in the previous paragraphs. It did not employ the language of the manner-and-form school or change the judicial oath. Rather, in section 2(4) of the European Communities Act 1972, it was asserted that statutes “shall be construed and shall have effect subject to the foregoing provisions of this section”—that is, subject to the incorporation of European Law into the British legal systems. This was a direct challenge to Parliamentary sovereignty, an attempt to impose a substantive limit on the effective legislative capacity of subsequent parliaments.
In the period between 1972 and 1988, Parliament and the courts contrived to avoid a dispute in which the efficacy of the 1972 act would be tested.28 Parliament strove to avoid legislating in conflict with European law. Indeed, it can be argued that a constitutional convention, a nonlegal constitutional rule, had emerged requiring that it not legislate in conflict with Community law.29 For their part, the judges zealously interpreted domestic legislation to avoid inconsistencies.30 In the case of Factortame, however, these devices ran out. Factortame is well documented and will not be surveyed here;31 in short, it turned on a conflict between a statutory provision found in the Merchant Shipping Act 1988, which provided that fishing boats could only be registered as British vessels if they were three-quarters owned by British companies and three-quarters of the company directors were British citizens,32 and a collection of duties imposed by European law not to discriminate on grounds of nationality. The first set of Factortame cases turned on the question of whether an interim injunction could be granted suspending the operation of the Merchant Shipping Act prior to a full hearing on the legality of the statute. In the first Factortame case to reach the House of Lords, their lordships held that interim relief could not be granted; that the Court lacked the power to order the 1988 act be disapplied in the case before them. The question was sent to the European Court of Justice, which ruled that, under European Law, a national court was obliged to set aside any national rule that restricted its capacity to grant interim relief.33 When the case returned to the English Court, the House of Lords interpreted this as requiring that the remedy could be provided and, further, decided that, in this instance, the statute's operation would be suspended.34
In the course of a careful reflection on the impact of Factortame, Nick Bamforth identified a number of possible interpretations of the current relationship between European and English Law.35 Some of these interpretations explicitly acknowledge the abandonment of sovereignty. Sir William Wade argued that there had been a “revolution” in Factortame; that the judges had departed from Parliamentary sovereignty without enjoying the legal authority to make this change.36 The possibility of a judicial revolution ending Parliamentary sovereignty dated back to Wade's first article on the topic, written in 1955. Wade noted that when territories left the British empire the allegiance of the courts of those territories often shifted. While, as a matter of English law, Parliament retained the capacity to legislate for those territories,37 as a matter of local law that capacity had been lost.38 Though lacking legal authority to make the change, the local courts recognized and partly effected the shift in legislative authority. The rule of Parliamentary sovereignty could not be changed by Parliament and could not, as a matter of law, be departed from by the courts. However, the courts did possess a political capacity to alter the fundamental rule of the British constitution, and it was this capacity that they had exercised in Factortame.39
Other interpretations surveyed by Bamforth draw attention to the role Parliament played in making Factortame possible. These emphasize that the impetus for the decision came from the legislature. The Court in Factortame was attempting to give legal effect to a statute, the European Communities Act 1972. One strand of this reasoning asserts that the limitations applied to Parliament came from this statute; the 1972 act amounts to a conduit through which European Law flows into the English legal system. Parliament could, it has been argued, repeal this statute and shut off this conduit; however, while the 1972 act remains in force, Parliament's lawmaking power is, to an uncertain extent, curtailed.40 A second strand, argued judicially by Lord Justice Laws, contends that the common law recognized the 1972 act as a special sort of statute, a constitutional statute, and, as such, the normal rules of implied repeal do not apply to it.41
While these readings of Factortame might appear as alternatives to Wade's analysis, they are actually compatible with it. On both interpretations of Parliamentary sovereignty—Wade's so-called orthodox version and Heuston's manner-and-form variant—the House of Lords should have concluded that the conflict between European law (incorporated into the English legal system by the 1972 act) and the Merchant Shipping Act 1988 resulted in the 1988 act taking priority, repealing the 1972 act so far as was necessary. Paul Craig has argued against this view, contending that the reasoning in Factortame accords better with Heuston's understanding of sovereignty,42 which, at least, had the effect of allowing Parliament to limit itself. Lord Bridge made it plain that the decision of the Court was motivated by a desire to uphold the wishes of Parliament; it had joined the Community voluntarily, aware of the constraints membership brought.43 But Heuston's analysis of sovereignty did not permit Parliament to place substantive limits on itself, as it had in the 1972 act. There was no attempt in that statute to redefine what constitutes Parliament or what counts as legislation. Unless he was willing to modify his earlier position, Heuston, and others in the manner-and-form school, would have been constrained to agree with Wade's interpretation of Factortame: that it amounted to a “revolution.”
Whether their decision to depart from Parliamentary sovereignty is best explained by the House of Lords’ adherence to the 1972 act or by some wider, common law notion of a constitutional statute, it is no longer the case that “whatever the Queen-in-Parliament enacts as a statute is law”: the courts can sometimes set aside these statutes. Though the earlier writers on sovereignty disagreed over aspects of the rule, they agreed on this: it should have been impossible legally to bring about, under the old rule, the type of substantive constraint found in Factortame.
The afterlife of Parliamentary sovereignty
When the pre-1991 interpretations of Parliamentary sovereignty are considered, it is clear that the rule ceased to be a feature of the British constitution after Factortame; nonetheless, its emotional pull is such that many constitutional scholars write as if it continues to exist. In the context of European Law, some claim that the United Kingdom's Parliament remains sovereign, seeking to square Factortame with the orthodox rule.44 In other areas of constitutional scholarship, sovereignty is still regarded as a factor that limits, or shapes, the development of the law. The question of whether the Human Rights Act can be reconciled with sovereignty is still debated; for example, the question of whether it would be possible to enhance this statute to permit judges to strike down legislation remains a hot topic.45 The possibility of reconciling sovereignty with judicial review is widely discussed.46 It is even conceivable that the specter of sovereignty will be invoked to frustrate attempts to move the United Kingdom from a unitary state to a federal state—a development that may be necessary if calls for English devolution grow.47
It is, then, quite important to distinguish the post-1991 understandings of Parliamentary sovereignty from its pre-1991 meaning. Parliamentary sovereignty has been reinterpreted in two ways: first, a number of scholars have taken sovereignty to mean that Parliament has the final say, the last legal word in the event of a constitutional crisis; second, some have reinterpreted sovereignty as a discrete area of lawmaking power, with Parliament enjoying sovereign authority in one area, even if limited in other respects.
A common move is to redefine Parliamentary sovereignty as a rule that gives legal supremacy to Parliament. This redefinition fits easily alongside those accounts of Factortame that emphasize the significance of the 1972 act in the decision. A. W. Bradley, in the course of a very thoughtful account of the topic, concludes that Parliament remains sovereign because it could, ultimately, repeal the European Communities Act 1972 and leave the Union.48 This may be correct; however, the understanding of sovereignty Bradley articulates is subtly different from that provided by the pre-1991 scholars. They claimed that all statutes produced by Parliament were legally binding, whereas, now, there are constraints on Parliament's legislative capacity. Parliament may be able, in the final analysis, to enact any laws it chooses, although it must first remove the limitations placed upon it by the 1972 act. Even if the 1972 act were repealed, this would not resurrect the old rule of Parliamentary sovereignty. The old rule did not permit Parliament to place effective substantive limits on its successors. After Factortame, there is now authority for the proposition that Parliament can impose such limitations; the old absolutism of sovereignty is no longer viable.
A second reinterpretation treats sovereignty as a capacity that an institution enjoys within a certain area. This interpretation alters the meaning of sovereignty; from being a legal rule relating to Parliament, sovereignty has now shifted to become a quality possessed by an institution.49 Such an understanding of sovereignty is found in the realm of international law, where the question of the sovereignty of states is often discussed. In this context, sovereignty indicates an area of political autonomy and, intriguingly, is a matter of degree; a sovereign state possesses a certain level of autonomy, though it need not enjoy absolute freedom of action.50 When this sense of sovereignty is applied to Parliament, it becomes plausible to speak of the legislature “sharing”51 sovereignty, or of sovereignty being possessed by both the legislature and the courts.52
A popular version of this argument draws attention to the role of the judges in interpreting and applying statutes: there is bipolar sovereignty between the legislature and the courts.53 A strength of this observation is that it reminds us that legislation is, unavoidably, a cooperative endeavor. 54 A successful statute requires that the legislature crafts the law with care and that the courts interpret and apply it skillfully. Some writers want to push the argument further; bipolar sovereignty additionally entails that it is—legally, constitutionally, or, perhaps, politically—appropriate for the courts to impose limits on Parliament by restricting the legislature's ability to legislate in violation of human rights.55 The truism that both the legislature and the courts have a role in ensuring the success of legislation does not, in itself, show that the courts should take on such a limiting role. It is conceivable that a theorist could be a believer in bipolar sovereignty, in the sense explained here, as well as a defender of Parliamentary sovereignty in its pre-1991 incarnation. Thus, both the legislature and the courts could have a role in legislation, yet it would not be part of the Court's function to place limits on the legislature.
People are free to use the phrase “Parliamentary sovereignty” as they choose; the earlier authors have no proprietary rights in the term. But some, at least, of the controversy surrounding the continuing health of Parliamentary sovereignty turns on a confusion of the pre- and post-1991 senses. In the pre-1991 sense, Parliamentary sovereignty was legally unchangeable, a rule of the United Kingdom's Constitution that placed serious limits on the ambitions of constitutional change. The constraints imposed by post-1991 sovereignty are far more limited. The old rule of sovereignty no longer prevents Parliament from placing limits of substance, as well as form, on itself. Parliament could give the courts the power to strike down statutes that conflicted with human rights, or it could, if it wished, place legal limits on its capacity to legislate in devolved matters. This is not to say, of course, that it would be wise to take these steps, merely that sovereignty no longer presents any impediment to taking them.
It remains an open question whether Parliament could bind itself in such a way as to deny itself the capacity to remove the fetter; that is, whether a parliament could, for example, prevent future parliaments from repealing the Human Rights Act. There is a broad consensus that Parliament is, at present, the supreme legal authority in the United Kingdom constitution; there is no piece of legislation beyond its reach, and it could repeal the European Communities Act or the Human Rights Act if it wished. However, as Parliament has never attempted to pass a statute that purports to prevent its subsequent repeal, the question of whether it could do so, and if it could therefore abandon its supremacy, must be left unanswered. It is certainly possible to imagine the present system of devolution being replaced by a federal model, a model that would require such constraints.
It would probably be best if constitutional scholars ceased discussing sovereignty as an ongoing rule of the Constitution, however interpreted or reinterpreted. Attention could more profitably be directed to the questions that often hide behind such discussion, questions relating to the position and vitality of Parliament within the Constitution, the United Kingdom's relationship with Europe, the future of devolution, and so on. Perhaps, we should allow sovereignty to revert to its older and more fundamental meaning—as the necessary and desirable capacity of a state to autonomously exercise control within its territory. Now that is an important principle of constitutionalism, and well worth talking about.