what is parliamentary sovereignty essay

CHAPTER 1: INTRODUCTION

Eshed cohen, introduction.

What is a constitution of a state? Normally, a constitution contains those sets of laws that establish a state; an array of laws that constitutes the state, in the sense that the state is established, exists, and operates within the parameters of those rules. Accordingly, section 1 of the Constitution of the Republic of South Africa, 1996, begins by declaring that South Africa ‘is one, sovereign democratic state’.

The fundamental rules constituting the state are those rules regulating the primary powers and duties of the state; the rules establishing arms and organs of the state; and the basic rules prescribing how a state interacts with persons in its jurisdiction through those arms and organs. So, constitutional law may not be limited to all the rules in a codified constitution. The laws relating to a state’s constitution may be contained in statute, common law, or even custom. In some countries, like religious states, constitutional law might even extend to theological texts. The ambit of constitutional law ultimately turns on what one considers to be rules that relate to the fundamental existence and functioning of a state.

In the South African context, the ambit of constitutional law is generally seen as comprising two branches. First, there is the body of law that regulates how powers are separated between various arms and organs of state. Second, there is the body of law that grants persons within the jurisdiction of South Africa certain rights. These two arrays of rules are considered as the fundamental laws establishing the Republic of South Africa.

The primary reason for this bifocal conception of South African constitutional law is the structure of the Constitution. Chapter 2 of the Constitution, which is commonly referred to as the Bill of Rights, guarantees certain rights to various persons in South Africa. The rest of the Constitution is then largely devoted to creating arms and organs of state and then assigning powers and duties to those entities. An implication of this structure means that the constitutionality of law or conduct, roughly speaking, can be tested in two ways. First, law or conduct can be unconstitutional because it violates a right in the Bill of Rights. Secondly, law or conduct can be unconstitutional because it exceeds a power or falls short of a duty assigned to various state functionaries.

For example, the case of Doctors for Life concerned the constitutionality of the Choice on Termination of Pregnancy Amendment Act 38 of 2004 [1] . The Act gave women the right to abort a pregnancy. The Constitutional Court declared the Act to be unconstitutional, not because legalising abortion violated the right to life in the Bill of Rights, but because Parliament, in passing the law, had not fulfilled its constitutional duty to take reasonable steps to ensure public participation in the legislative process. The act was unconstitutional not for a rights-related reason, but for failing to perform its constitutional duty.

Constitutional law commentaries and curricula thus focus separately on the Bill of Rights and the separation of powers. This work roughly follows this structure. However, there is overlap between these two branches of constitutional law and this overlap is highlighted where relevant in this book.

The purpose of this chapter is first to introduce basic concepts of constitutional law that underpin South African constitutional law. Secondly, the chapter provides a schematic overview of the rest of the book.

BASIC PRINCIPLES OF CONSTITUTIONAL LAW

There are various principles and ideas invoked throughout this book and in most texts on constitutional law. These are: constitutional supremacy, separation of powers, the rule of law, democracy and transformative constitutionalism. Each of these is explained and discussed below.

• Constitutional supremacy

Section 1 of the Constitution provides that South Africa is a republic founded on the value of constitutional supremacy. Section 2 of the Constitution provides that the Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution thus trump all other rules contained in statutes, common law and custom. Any rule inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts the constitution, including failing to fulfil an obligation imposed by the Constitution, is similarly invalid.

The effect of section 2 is commonly referred to as constitutional supremacy, meaning that no rule or conduct can be inconsistent with a constitutional rule. If such an inconsistency arises, it is resolved by declaring the offending rule invalid to the extent that it contradicts a constitutional rule. Conversely stated, to be valid, all law and conduct must conform to the prescripts of the constitution. In this sense, the constitution is the ultimate authority for law-making and lawful conduct.

Constitutional supremacy has various implications for a state, state actors, and persons within a state’s jurisdiction, primarily that the rules in a constitution both establish and constrain the exercise of state power [2] . A state can only act in terms of its constitution. If it exceeds the bounds of the constitution its conduct is legally invalid.

All state arms are bound by a supreme constitution. This includes the state legislature, the arm of government assigned with law-making powers. In a democratic state, this can give rise to what is commonly referred to as the counter-majoritarian dilemma; if a constitution limits the powers of a majority in parliament, then the will of the majority may be thwarted by a pre-existing constitutional rule. This runs counter to a basic premise of democracy that the majority of the people must determine the rules of a state. At the other extreme, if a majority of people can constantly overrule constitutional rules, then the constitution is hardly supreme. If the rules of the constitution could routinely be overridden by Acts of Parliament passed with a majority, the constitution would effectively be rendered meaningless. This could have implications for minority groups that are not represented by the majority in Parliament but whom a constitution seeks to protect.

The counter-majoritarian dilemma can be particularly acute where another branch of government (that may not be as representative of the majority as parliament) is given the final say over the meaning of the constitution, including the powers of the legislature. As explained briefly below and in Chapter 5 (The Judiciary), this is the position in South Africa, where the judiciary is given the final say over the meaning of the Constitution. In effect then, 11 justices of the Constitutional Court can tell the majority of South Africans that their wishes are invalid in law. The problem is squarely highlighted in Makwanyane , a case concerning the constitutionality of the death penalty. Chaskalson P held the following in relation to public opinion and the will of the majority of South Africans:

Public opinion may have some relevance to the [constitutional] enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected [3] .

A purely representative notion of democracy is incompatible with constitutional supremacy. Constitutional supremacy means that every so often the will of the majority will be constrained by a constitutional rule. However, as Chaskalson P held in Makwanyane , there are other notions of democracy that are compatible with limiting the power of a legislature by a constitution that is then interpreted by another arm of state (normally the judiciary). Democracy can entail safeguards for minority voters and does not have to entail parliamentary sovereignty [4] . Democracy does not have to entail a majority decision on every aspect of a state. The majority can decide to delegate decision-making on certain matters to a smaller group of people (for example, judges who are experts in constitutional law). In any event, whatever impact a constitution has on majority rule can also be mitigated by the fact that the majority decided to create that constitution (as it arguably did in South Africa).

Moreover, there are good reasons for entrusting another arm of state to interpret a constitution. The other branch may be experts in legal interpretation, may provide objectivity in resolving disputes about the legislature’s power and may operate as an important check on the legislature’s power. In this sense, the counter-majoritarian dilemma is not resolved, but its significance can be diminished. Ultimately, democracy should be concerned with far more than ensuring a majority decision in every single instance [5] .

Constitutional supremacy is often contrasted with parliamentary sovereignty. Parliamentary sovereignty (or supremacy) is where the legislature has supreme law-making power. There is no rule that parliament cannot make or repeal. The Westminster model, under which the United Kingdom operates, adopts parliamentary sovereignty [6] . Under apartheid, South Africa also functioned under parliamentary sovereignty. The core difference between parliamentary sovereignty and constitutional supremacy is where the ultimate authority for law-making lies. In parliamentary sovereignty, it is the legislature; in constitutional supremacy, it is the constitution of a state.

Finally, it is worth noting that constitutional supremacy does not mean that Parliament can never amend the Constitution. As discussed later in the book, the Constitution prescribes various requirements for amending different sections of the Constitution [7] . Constitutional supremacy only means that all law-making and conduct must be consistent with the Constitution, including amending the Constitution.

• Separation of powers

As explained above, constitutions generally establish arms of state and assign powers and duties to those arms of state. A constitution may prescribe the state powers and duties in numerous ways. The distribution of powers and duties by a constitution between established arms of state is known as the separation of powers.

Most democratic states have constitutions that deliberately assign core powers to different arms of state. A common model for the separation of these powers is known as the trias politica , which establishes three independent arms of state: the executive, the legislature, and the judiciary. Significant powers and duties are then distributed to each of these arms: the legislature is empowered to make laws, the judiciary is empowered to interpret laws, and the executive is empowered to enforce the law. Each arm of state has distinct personnel who work exclusively within that arm; members of parliament make up the legislature, judges work within the judiciary, and the executive comprises cabinet members or ministers. Furthermore, each arm in some way holds the other arms accountable through checks and balances. For example, the South African legislature can remove judges who are guilty of gross misconduct [8] . Conversely, the judiciary can prevent the legislature from passing laws that are contrary to the Constitution.

The rationale behind a tripartite separation of powers is obvious. Throughout history, power was often (and in some cases continues to be) concentrated in a single ruler. Monarchs, for example, had the power to make, interpret, and enforce laws. The concentration of power meant that rulers could not be held accountable for decisions they made. Whatever they decided was the law and only they would be allowed to resolve disputes about what the law meant, and they would decide to enforce laws against their subjects. People residing in the jurisdiction of the monarch were subject to the whim of that monarch, with no avenues for challenging a monarch’s decision. In contrast, separating powers between independent arms of state ensures that major decisions taken by those in power can be checked by and held to account by another arm of state. For example, a decision by the President to do something may require parliamentary approval or could be subject to review by a court. In this way, power is kept in check.

The separation of powers in South Africa is dealt with in detail in the first half of this book and briefly canvassed below. It is important to remember, however, that there is no single way of separating powers between arms of state. For example, in the Westminster model the members of the executive are drawn from members of parliament. Cabinet members are thus also members of parliament. The separation of powers is not strictly delineated, but sufficient overlap exists for parliament to hold members of cabinet accountable. In contrast, the model of the United States of America is far more rigid. Members of a single arm of state cannot also be members of another arm of state. At the same time, the US President has veto power over laws passed by the legislature and the courts can declare legislation duly passed to be substantively unconstitutional.

• The rule of law

The rule of law is often understood with reference to the theory of the British jurist, AV Dicey. Dicey explained in his Introduction To The Study Of Law Of The Constitution (1885), that the rule of law has three characteristics. First, because the law is supreme all public power must be exercised in terms of an empowering provision in a law. Second, everyone is equal before the law. Third, the courts are responsible for enforcing the laws of a country [9] . If all three conditions are met then the rule of law is established within a state.

Dicey’s conception of the rule of law has been adopted and developed in the South African Constitution, and since the Constitution is supreme, all law and conduct must be consistent with the Constitution. Section 1(c) of the Constitution provides that South Africa is a republic founded on the value of the rule of law. In Fedsure , the Constitutional Court explained that ‘[t]he rule of law – to the extent at least that it expresses this principle of legality – is generally understood to be a fundamental principle of constitutional law’ [10] . Fedsure went on to find that the principle of legality, as an aspect of the rule of law, requires that all exercises of public power must be lawful. Public power must be exercised within the four corners of authorising legislation. If not, it is subject to review by a court.

In SARFU , the Constitutional Court developed the principle of legality. Legality implied that the holder of public power must act in good faith and not misconstrue his or her powers [11] . In Pharmaceuticals , this was taken even further − the principle of legality required all public power to be exercised rationally [12] . In Albutt , the Constitutional Court explained that rationality also had a procedural element [13] . As the court then clarified in Democratic Alliance , the means chosen to achieve a legitimate government purpose included the process leading up to the decision [14] . So, for example, if a hearing is required for the rationality of a decision, and a hearing is not given, then that decision is irrational.

The rule of law and legality review are topics canvassed fully in courses of administrative law. However, the rule of law features heavily in constitutional analysis. To that extent, it is important to understand what the rule of law implies in the South African context.

Democracy entails that citizens of a state decide on issues concerning themselves and their state. But how this plays out in practice can depend on a model of democracy. Should all citizens vote on every issue? Should representatives be elected to vote on behalf of citizens? If so, how should those representatives be elected and how should they be held to account to citizens? Models of democracy can differ on the answers to these questions.

Below, we tabulate a summary of different models of democracy. A detailed analysis of democratic models is beyond the scope of this book. However, it is important to have a general understanding of democratic models. Section 1 of the Constitution establishes South Africa as a democratic state. Various democratic models heavily inform the separation of powers between the arms of state, especially parliament’s powers and duties. As will become apparent, the different advantages and disadvantages of various democratic models feature significantly in cases concerning the separation of powers, for example Doctors for Life [15] . Conceptions of democracy also underpin judgments concerning political rights, especially the right to vote [16] .

• Transformative constitutionalism

A key feature of the Constitution is that it seeks to transform South Africa from its deeply divided, unequal past into a society founded on equality, dignity, and freedom. In this sense the Constitution, unlike many other constitutions, does not seek to maintain a status quo. The Constitution is an ambitious legal document that aims to change the material conditions of South African society. As the Constitutional Court has held:

Over two decades ago, we adopted our Constitution. In doing so we signalled a decisive break with our past – a ringing rejection of a history of denial of human rights to our people. We started an ambitious and laudable project to develop, nurture and infuse a culture of respect for human rights in all aspects of our lives. We all committed ourselves to a new and egalitarian society founded on values of human dignity, equality and freedom for all. [17]

To understand a constitution, since it concerns fundamental assumptions about the nature of the state, it must be read and seen in its historical context. South African constitutional law is no exception. The Constitution, given its transformative nature, emphatically demands attention to history and the existing socio-economic context when interpreting and applying its rules. A full historical account of South Africa and the drafting of the Constitution is beyond the scope of this book [18] . However, the transformative nature of the Constitution makes history relevant in three ways. First, South Africa has undergone several constitutional changes in the past 150 years [19] . Secondly, the Constitution was drafted deliberately and through a process of negotiation between various stakeholders in the early 1990s. Finally, until 1994, South Africa operated on a legal system that oppressed and marginalised black people, while privileging white people, on a broad range of levels. These three points are important to bear in mind when, and have obvious relevance to, interpreting the Constitution.

The Constitution seeks to transform South African society on a broad range of levels. For example, section 1 establishes that South Africa is based on certain values that are diametrically opposed to those of the apartheid regime. The Constitution endorses a notion of substantive equality, which entails affirmative action being taken by the state to address existing inequalities between social groups [20] . The Constitution includes justiciable socio-economic rights, which allow citizens to challenge inequitable material conditions in court [21] .

The transformative goals of the South African Constitution, and the means by which the Constitution seeks to achieve transformation, have often been described as ‘transformative constitutionalism’. Transformative constitutionalism often includes an endorsement of justiciable socio-economic rights and substantive equality. It also endorses a form of legal reasoning that is conscious of the interplay between morality and law. Transformative constitutionalism demands that lawyers are aware of how the law does and can play a role in affecting power relations, access to resources, and human dignity. It also demands that lawyers understand that legal reasoning is heavily influenced by a lawyer’s political and moral convictions, especially when the law is ambiguous or vague. Transformative constitutionalism demands all this because, at heart, it entails using law to ensure that society moves towards a better version of itself. Quite clearly such a process involves grappling with fundamental moral and political ideas [22] .

AN OVERVIEW OF THIS BOOK

As explained at the start of this chapter, constitutional law is roughly divided into two parts: separation of powers and the Bill of Rights. The book reflects this division.

The next three chapters of the book detail the powers and duties of the three arms of government established by the Constitution: the legislature, executive, and judiciary. Those chapters also include discussions of how those three arms check and balance the other arms’ powers.

Chapter 5 deals with multi-level government. Multi-level government concerns the three spheres of the executive arm of the state: local, provincial, and national.

Chapter 6 concerns special institutions established by Chapter 9 of the Constitution. These institutions, like the Public Protector, occupy an interesting zone in the separation of powers. Chapter 9 institutions are not part of any arm of state and perform specialised functions. Simultaneously, they are held to account by the executive, legislature, and judiciary.

Chapter 10 introduces the Bill of Rights. The chapter begins with an introduction to the Bill of Rights and some general principles pertaining to the Bill of Rights. The six chapters after that deal with specific rights or groups of rights in the Bill of Rights.

• Constitutional supremacy is when:
• Ultimate authority for law-making and lawful conduct is vested in the legislature;
• All law and conduct inconsistent with the constitution is invalid;
• The state has a system of representative democracy;
• All conduct that is not done in terms of a law is invalid.

Click here to reveal answer:

• The counter-majoritarian dilemma arises when:
• A majority in parliament decide something against the interests of a minority group;
• Parliament passes a law without public participation;
• Parliament is constrained by a constitutional rule that prevents a majority decision on an issue;
• Judges decide what the law means.
• Parliamentary sovereignty refers to:
• A supreme parliament that has ultimate law-making authority;
• An independent parliament that holds the executive accountable;
• When members of cabinet are also members of parliament;
• A parliament that represents the will of the majority.
• A state has established the rule of law when:
• It has a supreme constitution;
• When it has independent arms of state;
• When it requires that all public power must be exercised in terms of an empowering provision in a law, that everyone is equal before the law, and that the courts are responsible for enforcing the laws of a country;
• When it has a system of representative democracy.
• South Africa’s Constitution is transformative because:
• It was negotiated by political parties to avoid a civil war and terminate apartheid;
• It aims to move South Africa away from its unequal past;
• It has a Bill of Rights;
• It creates separate arms of state.
• A constitution always contains a bill of rights.
• An act can be inconsistent with the constitution only if it violates a right in the Bill of Rights.
• Constitutional supremacy means that the Constitution can never be amended.
• The counter-majoritarian dilemma means that constitutional supremacy is inherently undemocratic.
• The South African Constitution aims to maintain a status quo.

Short questions (5 marks)

• South African constitutional law is often divided into two major areas. Name these areas and briefly describe them.
• Two areas: Bill of Rights and separation of powers.
• Bill of rights: concerns the rights guaranteed to persons in Chapter 2 of the Constitution. Law and conduct may not violate these rights; if it does, that law or conduct is unconstitutional.
• Separation of powers: concerns the powers and duties given to arms of state by the Constitution. Law and conduct of these arms cannot exceed the powers or violate the duties given to the arm in terms of the Constitution.
• What is constitutional supremacy? How is it different to parliamentary sovereignty?
• Constitutional supremacy is the idea that no rule or conduct can be inconsistent with a constitutional rule. If such an inconsistency arises, it is resolved by declaring the offending rule invalid to the extent that it contradicts a constitutional rule. Conversely stated, to be valid, all law and conduct must conform to the prescripts of the constitution. In this sense, the constitution is the ultimate authority for law-making and lawful conduct.
• Parliamentary sovereignty (or supremacy) is where the legislature has supreme law-making power. There is no rule that parliament cannot make or repeal.
• What is the counter-majoritarian dilemma?
• On the one hand, if a constitution limits the powers of a representative majority in parliament, then the will of the majority may be thwarted by a pre-existing constitutional rule. This offends a basic premise of democracy − the majority of people must determine the rules of a state. On the other hand, if a majority can constantly overrule constitutional rules, then the constitution is hardly supreme. If the rules of the constitution can constantly be overridden by Acts of Parliament passed with a majority, the Constitution is effectively rendered meaningless. This could have implications for minority groups that are not represented by the majority in Parliament but whom a Constitution seeks to protect.
• Which three conditions must be satisfied for a state to operate on the rule of law? Which section in the Constitution establishes South Africa as a republic founded on the rule of law?
• First, because the law is supreme, all public power must be exercised in terms of an empowering provision in a law. Second, everyone is equal before the law. Third, the courts are responsible for enforcing the laws of a country. If all three conditions are met, then the rule of law is established within a state.
• Section 1(c).
• What is transformative constitutionalism? Give one example of how the Constitution is transformative.
• It is when a constitution seeks to move a society towards a better version of itself instead of maintaining a status quo.
• Examples: section 1, the Constitution establishes that South Africa is based on values that are diametrically opposed to those of the apartheid regime. The Constitution endorses a notion of substantive equality, which entails affirmative action by the state to address existing inequalities between social groups. The Constitution includes justiciable socio-economic rights, which allow citizens to challenge inequitable material conditions in court.

1    Introduction

This book is a collection of essays with four main themes. The first is criticism of the theory known as ‘common law constitutionalism’, which holds either that Parliament is not sovereign because its authority is subordinate to fundamental common law principles such as ‘the Rule of Law’, or that its sovereignty is a creature of judge-made common law, which the judges have authority to modify or repudiate (Chapters 2, 3, 4 and 10). The second theme is analysis of how, and to what extent, Parliament may abdicate, limit or regulate the exercise of its own legislative authority, which includes the proposal of a novel theory of ‘manner and form’ requirements for law-making (Chapters 5, 6 and 7). This theory, which involves a major revision of Dicey’s conception of sovereignty, and a repudiation of the doctrine of implied repeal, would enable Parliament to provide even stronger protection of human rights than is currently afforded by the Human Rights Act 1998 (UK) (‘the HRA’), without contradicting either its sovereignty or the principle of majoritarian democracy (Chapters 7 and 8). The third theme is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, which strongly defends the reality of legislative intentions, and argues that sensible interpretation and parliamentary sovereignty both depend on judges taking them into account (Chapters 9 and 10). The fourth is a demonstration of the compatibility of parliamentary sovereignty with recent constitutional developments, including the expansion of judicial review of administrative action under statute, the operation of the HRA and the European Communities Act 1972 (UK), and the growing recognition of ‘constitutional principles’ and perhaps even ‘constitutional statutes’ (Chapter 10). This demonstration draws on the novel theory of ‘manner and form’, and the account of statutory interpretation, developed in Chapters 7 and 9.

The English-speaking peoples are reluctant revolutionaries. When they do mount a revolution, they are loath to acknowledge – even to themselves – what they are doing. They manage to convince themselves, and try desperately to convince others, that they are protecting the ‘true’ constitution, properly understood, from unlawful subversion, and that their opponents, who wear the mantle of orthodoxy, are the real revolutionaries. 1 They appear certain that their cause is not only morally righteous, but also legally conservative, in that they are merely upholding traditional legal rights and liberties.

Today, a number of judges and legal academics in Britain and New Zealand are attempting a peaceful revolution, by incremental steps aimed at dismantling the doctrine of parliamentary sovereignty, and replacing it with a new constitutional framework in which Parliament shares ultimate authority with the courts. They describe this as ‘common law constitutionalism’, ‘dual’ or ‘bi-polar’ sovereignty, or as a ‘collaborative enterprise’ in which the courts are in no sense subordinate to Parliament. 2 Or they claim that the true normative foundation of the constitution is a principle of ‘legality’, which (of course) it is ultimately the province of the courts, rather than Parliament, to interpret and enforce. 3 But they deny that there is anything revolutionary, or even unorthodox, in their attempts to establish this new framework. They claim to be defending the ‘true’ or ‘original’ constitution, ‘properly understood’, from misrepresentation and distortion. 4 And they sometimes accuse their adversaries, the defenders of parliamentary sovereignty, of being the true revolutionaries. 5

The fictions of the courts have in the hands of lawyers such as Coke served the cause both of justice and of freedom, and served it when it could have been defended by no other weapons … Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the courts for his Majesty’s personal determination. But no achievement of sound argument, or stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief Justice … The idea of retrogressive progress is merely one form of the appeal to precedent. This appeal has made its appearance at every crisis in the history of England and … the peculiarity of all English efforts to extend the liberties of the country … [is] that these attempts at innovation have always assumed the form of an appeal to pre-existing rights. But the appeal to precedent is in the law courts merely a useful fiction by which judicial decision conceals its transformation into judicial legislation. 6

In an earlier book, I set out to refute various philosophical errors and dispel several historical myths concerning the doctrine of parliamentary sovereignty. 7 Prominent among these errors and myths are the beliefs that the doctrine of parliamentary sovereignty: (a) is a relatively recent development, no older than the eighteenth century; (b) supplanted an ancient ‘common law constitution’ that had previously limited Parliament’s authority; (c) is a creature of the common law that was made by the judges and can therefore be modified or even repudiated by them. But it is possible, as Ian Ward has observed, that even if I was right, ‘truth matters little in a politics of competing mythologies’. 8 I take him to mean that lawyers and judges who find the doctrine of parliamentary sovereignty morally objectionable, and are committed to bringing about its demise, are unlikely to be either able or willing to assess objectively the historical evidence and jurisprudential analysis that I presented – or perhaps even to acknowledge their existence. The mythology of common law constitutionalism is indeed very difficult to dispel. Scholarly works continue to perpetuate it while ignoring the weighty arguments and evidence to the contrary. 9

The desire to clothe legal revolution in the trappings of legal orthodoxy is not, of course, peculiarly British. Constitutional debates reminiscent of those in Britain today took place in France between 1890 and the 1930s. Before 1890, the French legal system was firmly based on the principle of legislative sovereignty, which had been established during the French Revolution and the rule of Napoleon. But after 1890, leading public law scholars began to revive natural law ideas, arguing that the legislature was bound by an unwritten higher law, which the judges were capable of discerning and ought to enforce. According to a recent account, these neo-natural law ideas were ‘functionally equivalent to rule of law notions in Anglo-American legal theory’. 10 These scholars waged a persistent campaign to convince judges, first, ‘that they were juridically required to exercise … substantive judicial review’, and secondly, ‘that the judges had already begun doing so, but apparently did not yet know it’. 11 The basis of the second claim was that a number of judicial decisions supposedly made complete sense only if higher, unwritten constitutional principles were assumed to exist. As one of these scholars argued in 1923, the judges ‘without expressly admitting it, and perhaps without even admitting it to themselves, have opened the way to judicial review’. 12 This campaign was making headway until the publication of a book that explained how the American Supreme Court had stymied democratic social reform by reading laissez faire principles into its Constitution, and warned that French judges might follow suit. This book had an enormous impact, and routed the campaign in favour of judicially imposed, higher law principles. 13

The most obvious reading is that certain judges are staking out their position for future battles. They do fear that Parliament and governments cannot be trusted in all circumstances to refrain from passing legislation inconsistent with fundamental rights, the rule of law or democracy. When a case involving such ‘unconstitutional legislation’ arises they want to be in a position to strike it down without appearing to invent new doctrine on the spot. They want to be able to say that they are applying settled constitutional doctrine. Jackson may then be a useful precedent … Jackson may [also] be viewed as a shot across the government’s bows. 17

The claims of the dissenters could prove self-fulfilling if they are repeated so often that enough senior officials are persuaded to believe them. And this could happen even if these officials are persuaded for reasons that are erroneous (such as that common law constitutionalism was true all along). If that happens, original doubts about their correctness will be brushed aside as irrelevant, and the law books will be retrospectively rewritten. After revolution, as after war, history is written by the victors. If the legal revolution succeeds, it will not be acknowledged to have been a revolution. It will be depicted either as a judicial rediscovery of ‘hitherto latent’ restrictions on Parliament’s powers that the law always included, 22 or as the exercise of authority that the judges always had to continue the development of the ‘common law constitution’.

This book includes further efforts to resist the legal revolution sought by the common law constitutionalists. Chapter 2 presents historical and philosophical objections, and Chapters 3 and 4 respond to arguments based on the political ideal known as ‘the rule of law’. The first section of Chapter 10 is also relevant to this theme. I attempt to show that Parliament has been for centuries, and still is, sovereign in a legal sense; that this is not incompatible with the rule of law; and that its sovereignty is not a gift of the common law understood in the modern sense of judge-made law. It is a product of long-standing consensual practices that emerged from centuries-old political struggles, and it can only be modified if the consensus among senior legal officials changes. Furthermore, it ought not to be modified without the support of a broader consensus within the electorate. The recent Green Paper titled The Governance of Britain ends on the right note: constitutional change in Britain as significant as the adoption of an entrenched Bill of Rights or written Constitution requires ‘an inclusive process of national debate’, involving ‘extensive and wide consultation’ leading to ‘a broad consensus’. 23 Such changes should not, and indeed cannot, be brought about by the judiciary alone.

If radical change is to be brought about by consensus, legislation will be required. Chapters 5, 6 and 7 discuss problems relating to Parliament’s ability to abdicate or limit its sovereignty, or to regulate its exercise through the enactment of requirements as to the procedure or form of legislation. Chapter 5 reviews all the current theories of abdication and limitation, and advocates an alternative based on consensual change to the rules of recognition underlying legal systems. The theories of A.V. Dicey, W. Ivor Jennings, R.T.E. Latham, H.W.R. Wade and Peter Oliver are all subjected to criticism. Chapter 6 is a detailed account of the influential decision in Trethowan v. Attorney-General (NSW) , 24 which is often misunderstood and misapplied in discussions of ‘manner and form’. This account reveals the difference between the ‘manner and form’ and ‘reconstitution’ lines of reasoning that were first propounded in that case, and shows that much of the majority judges’ reasoning was dubious. Chapter 7 draws on the previous two chapters to propose a novel theory of Parliament’s power to regulate its own decision-making processes, by enacting mandatory requirements governing law-making procedures or the form of legislation. In passing, it discusses the somewhat different issues raised in Jackson v. Attorney-General , 25 which involved what is called in Australia an ‘alternative’ rather than a ‘restrictive’ legislative procedure. The novel theory of restrictive procedures that is proposed differs from the ‘new theory’ propounded by Jennings, Latham and R.F.V. Heuston, and from the neo-Diceyan theory of H.W.R. Wade. It rejects a key element of Dicey’s conception of legislative sovereignty, and the popular notion that the doctrine of implied repeal is essential to parliamentary sovereignty. Chapter 7 concludes with the possibly surprising suggestion that a judicially enforceable Bill of Rights could be made consistent with parliamentary sovereignty by including a broader version of the ‘override’ or ‘notwithstanding’ clause (s. 33) in the Canadian Charter of Rights, which enables Canadian parliaments to override most Charter rights. Chapter 8 examines this topic in more detail, analysing the relationship between the judicial protection of rights, legislative override, legislative supremacy and majoritarian democracy.

Chapter 9 is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, which argues that legislative intentions are both real and crucial to avoiding the absurd consequences of literalism. It also describes and criticises the alternative ‘constructivist’ theories of interpretation defended by Ronald Dworkin, Michael Moore and Trevor Allan. It acknowledges the frequent need for judicial creativity in interpretation, including the repair or rectification of statutes by ‘reading into’ them qualifications they need to achieve their purposes without damaging background principles that Parliament is committed to. The intentionalist account is further developed in Chapter 10, where it is shown to be crucial to the traditional justification of presumptions of statutory interpretation, such as that Parliament is presumed not to intend to infringe fundamental common law rights, and also crucial to the defence of parliamentary sovereignty against other criticisms.

Chapter 10 is a lengthy defence of parliamentary sovereignty against recent criticisms that it was never truly part of the British constitution, or is no longer part of it, or will soon be expunged from it. The Chapter begins with some historical discussion, and then considers at length the consequences of recent constitutional developments, including the expansion of judicial review of administrative action under statute, the operation of the European Communities Act 1972 (UK) and the HRA, and the growing recognition of ‘constitutional principles’ and possibly even ‘constitutional statutes’. It argues that none of these developments is, so far, incompatible with parliamentary sovereignty.

The once popular idea of legislative sovereignty has been in decline throughout the world for some time. ‘From France to South Africa to Israel, parliamentary sovereignty has faded away.’ 26 A dwindling number of political and constitutional theorists continue to resist the ‘rights revolution’ that is sweeping the globe, by refusing to accept that judicial enforcement of a constitutionally entrenched Bill of Rights is necessarily desirable. To be one of them can feel like King Cnut trying to hold back the tide.

This book does not directly address the policy questions raised by calls for constitutionally entrenched rights. For what it is worth, my opinion is that constitutional entrenchment might be highly desirable, or even essential, for the preservation of democracy, the rule of law and human rights in some countries, but not in others. In much of the world, a culture of entrenched corruption, populism, authoritarianism, or bitter religious, ethnic or class conflicts, may make judicially enforceable bills of rights desirable. Much depends on culture, social structure and political organisation.

I will not say much about this here, because the arguments are so well known. I regret the contemporary loss of faith in the old democratic ideal of government by ordinary people, elected to represent the opinions and interests of ordinary people. 27 According to this ideal, ordinary people have a right to participate on equal terms in the political decision-making that affects their lives as much as anyone else’s, and should be presumed to possess the intelligence, knowledge and virtue needed to do so. 28 Proponents of this ideal do not naively believe that such a method of government will never violate the rights of individuals or minority groups. But they do trust that, in appropriate political, social and cultural conditions, clear injustices will be relatively rare, and that in most cases, whether or not the law violates someone’s rights will be open to reasonable disagreement. They also trust that over time, the proportion of clear rights violations will diminish, and ‘that a people, in acting autonomously, will learn how to act rightly’. 29 Strong democrats hold that where the requirements of justice and human rights are the subject of reasonable disagreement, the opinion of a majority of the people or those elected to represent them, rather than that of a majority of some unelected elite, should prevail. On this view, the price that must be paid for giving judges power to correct the occasional clear injustice by overriding enacted laws, is that they must also be given power to overrule the democratic process in the much greater number of cases where there is reasonable disagreement and healthy debate. For strong democrats, this is too high a price.

What explains the loss of faith in the old democratic ideal? I am aware of possible ‘agency problems’: failures of elected representatives faithfully to represent the interests of their constituents. In many countries this is a major problem. But I suspect that in countries such as Britain, Canada, Australia and New Zealand, the real reason for this loss of faith lies elsewhere. There, a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionate, impartial and carefully reasoned manner. Even though the upper-middle class dominates the political process in any event, the force of public opinion still makes itself felt through the ballot box, and cannot be ignored by elected politicians no matter how enlightened and progressive they might be. Hence the desire to further diminish the influence of ‘public opinion’.

If I am right, the main attraction of judicial enforcement of constitutional rights in these countries is that it shifts power to people (judges) who are representative members of the highly educated, professional, upper-middle class, and whose superior education, intelligence, habits of thought, and professional ethos are thought more likely to produce enlightened decisions. I think it is reasonable to describe this as a return to the ancient principle of ‘mixed government’, by re-inserting an ‘aristocratic’ element into the political process to check the ignorance, prejudice and passion of the ‘mob’. By ‘aristocratic’, I mean an element supposedly distinguished by superior education, intellectual refinement, thoughtfulness and responsibility, rather than by heredity or inherited wealth.

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The doctrine that ‘Parliament can do anything except bind its successor’, which is the official ideology of the British constitution. Acts are not subject to judicial review, nor is constitutional or other legislation ‘entrenched’ (made more difficult to amend than ordinary legislation) because to do so would be to bind the sovereignty of future parliaments. One curious but logical consequence is that guarantees enshrined in Acts of Parliament are worthless. The Ireland Act 1949, s.1(2), states that ‘It is hereby declared that Northern Ireland remains part of…the United Kingdom and…in no event will…any part thereof cease to be part of…the United Kingdom without the consent of the Parliament of Northern Ireland’. But as there is no entrenchment, this could simply be repealed should a future UK government wish to cede Northern Ireland to the Republic of Ireland. Defenders of parliamentary sovereignty argue that it is essential to be clear where sovereignty lies, and that it should lie with elected politicians, not unelected judges or executive officers. Critics argue variously: 1 that parliamentary sovereignty has become a cover for executive despotism, because parliament neither can nor wishes to scrutinize executive actions purportedly done in its name; 2 that parliamentary sovereignty was ceded with the accession of the UK to the European Union (see also statute law); and 3 that rights ought to be entrenched, and/or that such constitutional matters as the maximum allowable length of a parliament should be kept out of the (allegedly sticky) hands of politicians.Parliamentary sovereignty has been in rapid decline in the UK since 1990, when the courts first invalidated an act (the Merchant Shipping Act 1988) on the grounds of its incompatibility with an earlier statute, namely the European Communities Act 1972.

1 that parliamentary sovereignty has become a cover for executive despotism, because parliament neither can nor wishes to scrutinize executive actions purportedly done in its name;

2 that parliamentary sovereignty was ceded with the accession of the UK to the European Union (see also statute law); and

3 that rights ought to be entrenched, and/or that such constitutional matters as the maximum allowable length of a parliament should be kept out of the (allegedly sticky) hands of politicians.

From:   parliamentary sovereignty   in  The Concise Oxford Dictionary of Politics »

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7 The Rule of Law and Parliamentary Sovereignty

• Published: September 2003
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The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a fundamental division of sovereignty. The common law, which today holds the existence of a free and democratic society as its basic tenet, must be viewed as built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts. This chapter discusses judicial review of administrative action, the moral foundations of H. L. A. Hart's ‘rule of recognition’, the evolution of the rule of recognition citing human rights and European law, and the constitutional limits of parliamentary sovereignty.

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• Click Sign in through your institution.
• Select your institution from the list provided, which will take you to your institution's website to sign in.
• When on the institution site, please use the credentials provided by your institution. Do not use an Oxford Academic personal account.
• Following successful sign in, you will be returned to Oxford Academic.

If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.

Sign in with a library card

Enter your library card number to sign in. If you cannot sign in, please contact your librarian.

Society Members

Society member access to a journal is achieved in one of the following ways:

Sign in through society site

Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:

• Click Sign in through society site.
• When on the society site, please use the credentials provided by that society. Do not use an Oxford Academic personal account.

If you do not have a society account or have forgotten your username or password, please contact your society.

Sign in using a personal account

Some societies use Oxford Academic personal accounts to provide access to their members. See below.

A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.

Some societies use Oxford Academic personal accounts to provide access to their members.

Viewing your signed in accounts

Click the account icon in the top right to:

• View your signed in personal account and access account management features.
• View the institutional accounts that are providing access.

Signed in but can't access content

Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.

For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.

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