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Parliamentary Sovereignty and the Constitution

Published online by Cambridge University Press:  20 July 2015

Pavlos Eleftheriadis
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Extract

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent‘. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 22 , Issue 2 , July 2009 , pp. 267 - 290
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2009 

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References

The author is grateful to John Allison, Anthony Bradley and David Dyzenhaus for their comments on earlier drafts. The usual disclaimer applies.

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31. Ibid. at 531.

32. Dicey mentions Austin and discusses his ideas while presenting the doctrine of parliamentary sovereignty in Introduction pages 18, 26, 27, 28, 29 and elsewhere. He speaks of the ‘commands’ of Parliament in page 268: (‘the commands of Parliament, consisting as it does of the Crown, the House of Lords, and the House of Commons) can be uttered only through the combined action of its three constituent parts, and must, therefore always take the shape of formal and deliberate legislation.’).

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35. Dicey, supra note 2 at 29.

36. Dicey discusses the differences between his constitutional theory and Austin’s jurisprudence in Introduction, ibid. at 26-30.

37. Dicey, ibid. at 24, n. 48. At page 27 he says that ‘the term “sovereignty”, as long as it is accurately employed in the sense in which Austin sometimes uses it, is a merely legal conception, and means simply the power of law-making unrestricted by any legal limit.’

38. Ibid. note 2 at 18.

39. Ibid. at 3.

40. Ibid. at 37.

41. Ibid.

42. Ibid. at cxxvi. Dicey uses this phrase to criticise his predecessors.

43. Austin wrote as follows: ‘In the case of an aristocracy or government of a number, the sovereign number is an aggregate of individuals, and commonly, of smaller aggregates composed by those individuals. Now, considered collectively, or considered in its corporate character, that sovereign number is sovereign and independent. But, considered severally, the individuals and smaller aggregates composing that sovereign number are subject to the supreme body of which they are component parts,’ John Austin, supra note 33 at 184. But how are we to determine if and when this body is constituted and expresses its will? There is a need for having and respecting rules of procedure that are prior to and binding on the body itself. So a body cannot be sovereign, in Austin’s original sense.

44. Latham, supra note 5 at 523-24.

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61. Neil MacCormick makes a very similar distinction between ‘rules of change’ and ‘rules of recognition’ in MacCormick, Neil, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999) at 83ffCrossRefGoogle Scholar.

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63. Ibid. at 69.

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65. MacCormick, supra note 61 at 85.

66. For some interesting reflections on this see Perry, Michael J., ‘What is “the Constitution” and Other Fundamental Questions’ in Alexander, Larry, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) at 99.Google Scholar

67. House of Lords Committee on the Constitution, Reviewing the Constitution: Terms of Reference and Method of Working, First Report of Session 2001-2002 (HL Paper 11), (London: Stationery Office, 2002) at ch. 2, par 20Google Scholar. In the same Report, the Committee states that the ‘basic tenets’ of the United Kingdom are: Sovereignty of the Crown in Parliament, the rule of law, encompassing the rights of the individual, Union State, Representative Government, Membership of the Commonwealth, the European Union, and other international organisations.

68. Dworkin, Ronald, ‘The Forum of Principle’ in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 37.Google Scholar

69. This point is brilliantly shown for the case of the British constitutional settlement by Allison, J. W. F., The English Historical Constitution: Continuity, Change and European Effects (Cambridge: Cambridge University Press, 2007).CrossRefGoogle Scholar

70. Wade, supra note 18 at 32.

71. Allison, supra note 69 at 235.