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Published online by Cambridge University Press: 02 January 2018
The authority of the classic Diceyan approach to parliamentary sovereignty has, as is well known, been called into question as a result of the UK's membership of the EU and human rights legislation. However, this paper focuses on the implications of Scottish devolution for the orthodox doctrine of parliamentary sovereignty. The constitution, and the legislative supremacy of Westminster within it, remains a controversial political issue in Scotland. Accordingly, rather than hypothesising inductively from constitutional doctrine, consideration is given to the nature of the interaction between the socio-political forces which underlie Scottish devolution and the concept of parliamentary sovereignty. It is contended that the foundations of the Scottish political order have shifted in a way which is already presenting significant challenges. Moreover, looking to the future, the pressure on the orthodox Diceyan approach is likely to intensify over time. In this context, it is questionable whether constitutional conventions of the sort which are already evolving or the possible development by the courts of more formal constitutional norms will, in the long term, be able to reconcile parliamentary sovereignty with Scottish political reality. Indeed, it is argued that — from a Scottish perspective at least — the viability of classic, Diceyan parliamentary sovereignty as a meaningful constitutional doctrine will be called into question in the years to come.
1. See, for example, D N MacCormick ‘Is there a Constitutional Path to Scottish Independence?’ [2000] Parliamentary Affairs 721 at 728–730.
2. A V Dicey The Law of the Constitution (Basingstoke: MacMillan Education, 1959) p 37. Dicey defined Parliament as the Monarch, the House of Lords and the House of Commons: ‘these three bodies acting together may be aptly described as the “King in Parliament”, and constitute Parliament.’
3. Dicey, above n 2, p 27. See also N MacCormick Questioning Sovereignty (Oxford: Oxford University Press, 1999) p 68.
4. See Dicey, above n 2, pp 39–40.
5. ‘The logical reason why Parliament has failed in its endeavours to enact unchangeable enactments is that a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any parliamentary enactment.’ See Dicey, above n 2, p 68.
6. For example, whilst recognising the significance of Dicey’ s work, Shklar lamented his ‘Anglo-Saxon parochialism’: see J N Shklar ‘Political Theory and the Rule of Law’ in A C Hutchinson and P Monahan (eds) The Rule of Law, Ideal or Ideology? (Toronto: Carswell, 1987) p 4, as discussed in M Loughlin Public Law and Political Theory (Oxford: Oxford University Press, 1992) pp 148–151.
7. For a discussion of the influence of Dicey's work on UK public law, see Loughlin, above n 6, pp 140–168.
8. J D B Mitchell Constitutional Law (Edinburgh: W Green & Son, 1968) pp 69–74.
9. 1953 SC 396.
10. C Harvie Scotland and Nationalism (London: Routledge, 1994) pp 170–173.
11. MacCormick v The Lord Advocate 1953 SC 396 at 411. For a recent discussion of the issues raised by Lord Cooper's remarks, see E Wicks ‘A new constitution for a new state? The 1707 Union of England and Scotland’ (2001) 117 LQR 109 at 122–123. More generally, see MacCormick, above n 1, and in ‘Does the United Kingdom have a Constitution?’ (1978) 29 NILQ 1. See also M Upton ‘The Marriage Vows of the Elephant: the Constitution of 1707’ (1989) 105 LQR 79.
12. For discussion of Lord Cooper, see ID Willock ‘The Scottish legal heritage revisited’ in J P Grant (ed) Independence and Devolution The Legal Implications for Scotland(Edinburgh: Green, 1976); and H L MacQueen ‘Scottish Legal Nationalism: The Contribution of Lord Cooper of Culross’, unpublished paper presented at the Spring Discourse of the Irish Legal History Society in the Great Hall, Queens University Belfast, 7 May 2003. More generally, for an interesting discussion of Scottish legal nationalism, see L Farmer ‘Under the shadow of Parliament House: the strange case of legal nationalism’ in L Farmer and S Veitch (eds) The State of Scots Law: Law and Government after the Devolution Settlement (Edinburgh: Butterworths, 2001). See also Lord Cooper of Culross Selected Papers (Edinburgh: Oliver and Boyd, 1957) pp xiv–xviii for a brief overview of Lord Cooper's political career.
13. See MacCormick v The Lord Advocate 1953 SC 396 at 413.
14. See, for example, Gibson v The Lord Advocate 1975 SLT 134; Pringle, Petitioner 1991 SLT 330. For comment, see N C Walker and C M G Himsworth ‘The poll tax and fundamental law’ [1991] JR 45. See also Lord Gray's Motion 2000 SC (HL) 46 at 59, per Lord Hope of Craighead.
15. See Sir John Laws, ‘Law and Democracy’ [1995] PL 72; Lord Woolf ‘Droit Public English Style’ [1995] PL 57; and Sir Stephen Sedley ‘Human Rights: A Twenty-First Century Agenda’ [1995] PL 386. Their arguments are, however, viewed as controversial by some. See, for example, R Mullender ‘Parliamentary sovereignty, the constitution, and the judiciary’ (1998) 49 NILQ 138. See also JAG Griffith ‘Common Law and Political Constitution’ (2001)117 LQR 42 for a powerful critique of Sir Stephen Sedley's arguments, and Sir Stephen's response, ‘The Common Law and the Political Constitution: a Reply’ (2001) 117 LQR 68. Griffith also challenged Sir John Law's arguments in ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159. For a wider analysis of the ‘common law constitutionalism’ espoused by Sir John Laws and others, see T Poole ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23(3) OJLS 435.
16. Thoburn v Sunderland District Council [2002] 1 CMLR 50 at 59–62, per Laws LJ. For a detailed analysis of the decision, see M Elliott Embracing constitutional legislation: towards fundamental law? (2003) 54 NILQ 25.
17. Even in relation to litigation arising out of the transfer of sovereignty to former colonies. See for discussion C T Turpin British Government and the Constitution (London: Weidenfeld and Nicolson, 1985) pp 27–32.
18. See generally, Laws, above n 15; Mullender, above n 15; G Marshall ‘Parliamentary Sovereignty: The New Horizons’ [1997] PL 1; Sir William Wade ‘Sovereignty - Revolution or Evolution’ (1996) 112 LQR 568; T R S Allan ‘Parliamentary Sovereignty: Law, Politics, and Revolution’ (1997) 113 LQR 443; and A W Bradley ‘The Sovereignty of Parliament - in Perpetuity?’ in J Jowell and D Oliver (eds) The Changing Constitution (Oxford: Clarendon Press, 1994).
19. [1991] AC 603.
20. [1991] AC 603 at 658–659.
21. For discussion of parliamentary sovereignty as a ‘purely legal concept’, see C R Munro Studies in Constitutional Law (London: Butterworths, 1987) ch 5. For an interesting analysis of the significance of judicial interpretation as a means of re-contextualising constitutional doctrine, see Lord Irvine of Lairg ‘Sovereignty in Comparative Perspective: Constitutionalism in Britain and America’ (2001) 76(1) NYULR 1 at 16–21.
22. Sir William Wade ‘What has happened to the sovereignty of Parliament?’ (1991) 107 LQR 1; and see also K Armstrong ‘Divided on Sovereignty?’ in N Walker (ed) Sovereignty in Transition (Oxford - Portland, Oregon: Hart Publishing, 2003) pp 331–332.
23. Note that the doctrine of implied repeal can only apply to inconsistent statutes concerning the same subject matter. For discussion of the doctrine of implied repeal, see the leading case on the matter, Ellen Street Estates v Minister of Health [1934] 1 KB 590 at 597, per Maugham LJ; and Elliott, above n 16. The two Acts of Parliament in question in Factortame did not, on the face of it, concern the same subject matter: the European Communities Act 1972 concerned the UK's legal relationship with the EC, and the Merchant Shipping Act 1988 was obviously concerned with shipping. Accordingly, in this narrow sense, the Merchant Shipping Act did not seek implicitly to repeal the European Communities Act. For discussion of the significance of the Factortame case, see MacCormick, above n 3, pp 72–73, 79–81, 88–91.
24. N Walker ‘Beyond the Unitary Conception of the United Kingdom Constitution?’ [2000] PL 384 at 393. For analysis, see Armstrong, n 22 above, pp 346–347.
25. For a strong statement of the general point that parliamentary sovereignty should correspond with political reality, see Elliott, M Parliamentary sovereignty and the new political order: legislative freedom, political reality and convention’ (2002) 22(3)Google Scholar LS 340 at 373–376.
26. Indeed, it was concern about the political implications of judges seeking to expand their remit beyond automatically legitimising Acts of Parliament which motivated Griffith to attack the arguments of Sir Stephen Sedley and Sir John Laws in particular. See n 15 above.
27. H L A Hart The Concept of Law (Oxford: Oxford University Press, 1961) pp 145–146.
28. MacCormick, above n 3, pp 86–91 and 94–95. See also Poole, above n 15, for discussion of the role of the common law courts in constitutional change.
29. Sir William Wade ‘The Basis of Legal Sovereignty’ [1955] CLJ 172 at 187–189.
30. Wade, above n 18.
31. See Allan, above n 18.
32. Elliot, above n 16, at 39. See also Thoburn v Sunderland District Council [2002] 1 CMLR 50 at 59–62, per Laws LJ.
33. Elliott, above n 25, at 372.
34. Elliott, above n 25, at 375–376.
35. Ss 31 and 32.
36. Ss 29 and Sch 5.
37. s 33.
38. S 35.
39. S 58.
40. S 107.
41. Ss 29, 98 and Sch 6.
42. Scotland's Parliament (Cm 3658) para 4.2. This echoed the 1973 Royal Commission on the Constitution (Cmnd 5460) para 543, which defined devolution as ‘the delegation of central government powers without the relinquishment of sovereignty’.
43. For a contrary view of the status of Acts of the Scottish Parliament, see N Burrows Devolution (London: Sweet & Maxwell, 2000) pp 55–56. Burrows seeks to argue that the UK Parliament has conferred the power to legislate to the Scottish Parliament, thereby sharing the authority to pass primary legislation between Westminster and the Scottish Parliament. For a critique of Burrows' position, see Baer, S Umpiring the Ping-Pong game: the Courts and Legislative Conflict between Edinburgh and Westminster’ (2002) 1 Google Scholar JR 49 at 54–55.
44. The Human Rights Act also seeks to preserve the formal integrity of parliamentary sovereignty. Whilst incorporating the European Convention on Human Rights into UK domestic law, the Act defers to the principle of parliamentary sovereignty by not permitting the courts to declare Acts of Parliament which are incompatible with Convention rights to be without the force of law: instead, it merely empowers the courts to make a declaration of incompatibility. The responsibility for deciding whether or not to address the incompatibility through legislation is therefore left to Parliament, leaving open the possibility, in formal terms at least, that it may exercise sovereignty by choosing not to comply with Convention rights. However, in reality, the Human Rights Act constitutes a very significant transfer of sovereignty from Parliament to the judiciary. For discussion of these issues, see K D Ewing ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79; and D W Vick ‘Deontological Dicta’ (2002) 65 MLR 279.
45. See, for example, discussion of Lord Cooper, above n 12.
46. See above n 14.
47. See MacCormick v The Lord Advocate 1953 SC 396; Gibson v The Lord Advocate 1975 SLT 134; Pringle, Petitioner 1991 SLT 330; Murray v Rogers 1992 SLT 221; Stewart v Henry 1989 SLT (Sh Ct) 34; Fraser v MacCorquodale 1992 SLT 229; Lord Gray's Motion 2000 SC (HL) 46 at 59; and Walker and Himsworth, above n 14.
48. Lord Hope is a Lord of Appeal in Ordinary and a former Lord President of the Court of Session. See Lord Gray's Motion 2000 SC (HL) 46 at 59; and House of Commons Minutes of Evidence taken before the Constitutional Affairs Committee, Judicial appointments and a Supreme Court (court of final appeal), 2 December 2003, Evidence heard in Public Question 295, available at http://www.parliament.the-stationery-office.co.uk/pa/cm200304/cmselect/const/uc48-ii/uc4802.htm.
49. The Judicial Committee's functions are provided for under s 33 and Sch 6 to the Scotland Act; and its status as the final court of appeal under the devolution settlement is determined by s 103. It is, however, very much a court of last resort, with the Scottish supreme courts (ie the Court of Session and the High Court of Justiciary) dealing with most devolution issues.
50. See Whaley v Lord Watson 2000 SC 340 at 348G–348H. For an excellent analysis of post-devolution developments in Scottish case law, see S Tierney ‘Constitutionalising the Role of the Judge: Scotland and the New Order’ (2001) 5 Edinburgh LR 49.
51. Whaley v Lord Watson 2000 SC 340 at 349B–349D.
52. Whaley v Lord Watson 2000 SC 340 at 357E–358A, per Lord Prosser. The interrelationship between the Scottish Parliament and the courts was considered further in Adams v Scottish Ministers 2003 SC 171. Thus, the Scotland Act is definitive in terms of determining the extent of the court's jurisdiction to review the actions of the Scottish Parliament, which possesses a discretionary area of judgement to which the courts should defer (other than where the Parliament contravenes the ECHR).
53. And, to some extent, national chauvinism. This approach finds its full expression in Dicey's writings. Keeton argued that Dicey ‘inherited an outlook upon the constitution which owed something to Burke, Blackstone and Bagehot, and which saw in the English system the climax of political achievement’: see G W Keeton The Passing of Parliament (London: Graff, 1952) p 6, as reproduced in Loughlin, above n 6, p 141. Dicey was strongly opposed to Irish Home Rule, and it is reasonable to suppose that he would have also have opposed the Scottish devolution settlement: see Lord Bingham of Cornhill ‘Dicey Revisited’ [2002] PL 44.
54. MacCormick, above n 3, p 74.
55. For an excellent discussion of the development of post-war Scottish nationalism, see Harvie, above n 10, chs 4–7. See also L Paterson The Autonomy of Modern Scotland (Edinburgh: Edinburgh University Press, 1994); and T Nairn The Break-Up of Britain: Crisis and Neo-Nationalism (London: NLB, 1977).
56. See above nn 35–41.
57. See 593 HL Official Report (5th series) col 1947. Lord Steel was also, of course, as David Steel MP, formerly the leader of the Liberal Democrat Party.
58. See MacCormick, above n 1, at 729–730.
59. MacCormick, above n 1, at 730.
60. L Paterson and R Wyn Jones ‘Does civil society drive constitutional change?’ in B Taylor and K Thomson Scotland and Wales: Nations Again? (Cardiff University of Wales Press, 1999) p 179. See also J Mitchell Strategies for Self-Government (Edinburgh: Edinburgh University Press, 1992); and L Paterson A Diverse Assembly: The Debate on a Scottish Parliament (Edinburgh: Edinburgh University Press, 1992).
61. Accordingly, David McCrone has written that the failure of the political class to deliver devolution in 1979 - remember that a majority of Scots voted yes, but the measure was defeated by a parliamentary gerrymander known as the 40% rule - coupled with the re-election of a Conservative government at Westminster in 1992 with a mere quarter of the popular vote in Scotland, and 11 out of 72 seats, persuaded many in civil society that things could not be left to political parties. To be sure, politicians were included in the various deliberations and commissions over 20 years, but they were usually invited to do so because they had special interests in or sympathies for Home Rule. In short, Scotland's parliament was to be a creation of civil society, and hence a doctrine of parliamentary sovereignty was inappropriate. See D McCrone Marking the card: The Scottish Parliament at 1000 Days, paper given at the conference on ‘Renovation or Revolution? New Territorial Politics in Ireland and the United Kingdom’, at the Institute for British-Irish Studies, University College Dublin, 3 April 2002, p 3; and ‘Peeblin’ Wi Stanes: Assessing the Scottish Parliament, 1999–2003, p 1. Both papers are available at http://www.institute-of-governance.org/onlinepub/index.html. For an excellent discussion of the Scotland Act 1978, see T H Jones ‘Scottish devolution and demarcation disputes’ [1997] PL 283.
62. Lord Hope ‘The Human Rights Act 1998: The Task of the Judges’ (1999) 20 Statute LR 185 at 188s
63. See Scottish Constitutional Convention Scotland's Parliament. Scotland's Right (Edinburgh, 1995) p 10. For discussion of the role of the Scottish Constitutional Convention in the run up to the implementation of devolution, see T M Devine The Scottish Nation 1700–2000 (London: The Penguin Press, 1999) pp 609–617. The Convention contained 59 of the 72 Scottish MPs and 6 Scottish MEPs, together with representatives of Scotland's local authorities, trade unions and churches. The SNP and the Conservatives excluded themselves from the Convention.
64. Scottish Constitutional Convention A Claim of Right for Scotland - Report of the Constitutional Steering Committee (Edinburgh, 1989). See also MacCormick, above n 1, at 730. The Chair of the Executive Committee of the Convention, Canon Kenyon Wright, expressed the Convention's position even more forcefully in anticipation of the response of the then Prime Minister, Margaret Thatcher, when he stated: ‘What happens if that other voice we all know so well responds by saying, we say no. We say no and we are the state. Well, we say yes and we are the people.’ See Devine, above n 63, pp 612–613.
65. Scottish Constitutional Convention Scotland's Parliament. Scotland's Right, above n 63.
66. Scottish Constitutional Convention, Scotland's Parliament. Scotland's Right, above n 63, pp 18–19.
67. For detailed discussion, see N McEwen ‘Is devolution at risk?: examining attitudes towards the Scottish Parliament in light of the 2003 election’ (2003) 44 Scottish Affairs 54 at 58–59 and 69–70. See also J Curtice ‘Devolution and Democracy: new trust or old cynicism’ in J Curtice, D McCrone, A Park et al (eds) New Scotland, New Society (Edinburgh: Polygon, 2002) pp 142–165; and R J Dalton ‘Political support in advanced democracies’ in P Norris Critical Citizens: Global Support for Democratic Government, (Oxford: Oxford University Press, 1999) pp 57–77.
68. For commentary on survey and opinion poll data see McCrone ‘Marking the card: The Scottish Parliament at 1000 Days’, above n 61, pp 4–7. See also D McCrone ‘Opinion Polls in Scotland: June 2000-June 2001’ (2001) 37 Scottish Affairs 26; ‘Opinion Polls in Scotland: July 2001-October 2002’ (2003) 42 Scottish Affairs 144. All three papers are available at http://www.institute-of-governance.org/onlinepub/index.html.
69. In the 1999 election, Labour held 56 seats, the SNP 35, the Liberal Democrats 17 and the Scottish Conservative Party 18. The SSP and Scottish Green Party each held 1 seat, and there was 1 Independent MSP. In the 2003 election, Labour lost 6 seats, and the SNP 8. The Labour Party won 50 seats, the Liberal Democrats 17, the Scottish National Party 27, the Scottish Conservative Party 18, the Scottish Socialist Party 6, the Scottish Green Party 7, Independents 3, and the Scottish Senior Citizens Unity Party 1.
70. Around 40 out of the 129 MSPs support Scottish independence: in addition to the SNP, SSP and Green MSPs, at least one of the Independents (Margo MacDonald, the former SNP MSP) also supports independence.
71. For an excellent discussion of media coverage of the Scottish Parliament, see generally P Schlesinger, D Miller and W Dinan Open Scotland? Journalists, Spin Doctors and Lobbyists (Edinburgh: Edinburgh University Press, 2001).
72. See McCrone ‘Marking the card: The Scottish Parliament at 1000 Days’, above n 61, p 7. See also McEwen, above n 67, at 59.
73. See The Official Report of the Scottish Parliament, 7 May 2003, available at http://www.scottish.parliament.uk/plenary/or-03/sor0507-02.htm#Coll.
74. Above, n 73.
75. Above, n 73.
76. Above, n 73.
77. See, for example, MacCormick, above n 3, pp 196–199 and 202–204. The significance of the EU was an important factor in the Scottish Constitutional Convention's campaign for devolution: for example, see Scotland's Parliament. Scotland's Right, above n 63, pp 6, 12 and 16.
78. D Chalmers ‘Post-nationalism and the Quest for Constitutional Substitutes’ (2001) 27(1) J Law and Society 178.
79. Hence the attempts by Labour First Ministers to establish the newly devolved Scotland as one of the key European ‘regions’ in EU institutional reform, and the highly successful but apparently contradictory SNP campaign slogan of ‘independence in Europe’. See also MacCormick, above n 3, pp 196–199 and 202–204. See also Scotland's Parliament. Scotland's Right, above n 63, pp 6, 12 and 16.
80. See Walker, above n 24; and Armstrong, above n 22. See also N Walker ‘Sovereignty and Differentiated Integration in the European Union’ (1998) 4(4) ELJ 355; N Walker, ‘Flexibility within a Metaconstitutional Frame: reflections on the future of legal authority in Europe’ in G de Burca and J Scott Constitutional Change in the EU: From Uniformity to Flexibility (Oxford: Hart Publishing, 2000).
81. MacCormick, above n 3, p 70.
82. For example, see MacCormick, above n 3, pp 196–199.
83. See generally A Scott ‘The Role of Concordats in the New Governance of Britain: Taking Subsidiarity Seriously?’ (2001) 5 Edinburgh LR 21; R Rawlings ‘Concordats of the Constitution’ (2000) 116 LQR 257; J Poirier ‘The Functions of Intergovernmental Agreements: Post-Devolution Concordats in a Comparative Perspective’ [2001] PL 134; and G Little ‘Scottish Devolution and the Environment’ (2000) 12 J Environmental Law 155 at 162–165. See also Memorandum of Understanding and supplementary agreements between the UK Government, Scottish Ministers and the Cabinet of the National Assembly for Wales (SE/99/36).
84. Per Lord Sewel at HL Official Report (5th series) col 791, 21 July 1998. For a concise discussion of the Sewel convention, see J McFadden and M Lazarowicz The Scottish Parliament (London: LexisNexis, 2003) pp 85–88.
85. House of Commons Select Committee Report on the Procedural Consequences of Devolution HC 185 (1998–99) para 26; Memorandum of Understanding and supplementary agreements between the UK Government, Scottish Ministers and the Cabinet of the National Assembly for Wales, above n 83, para 13; Privy Council Office Devolution Guidance No. 10, Post-devolution Primary Legislation Affecting Scotland; Scottish Executive Guidance Note on Common Working Arrangements, para 5, available at http://www.scotland.gov.uk/cwa/.
86. There are some concerns that the current Scottish Executive is making extensive use of the Sewel convention. This is perhaps inevitable given the shared objectives of the Labour government at UK level and the Labour-dominated Scottish Executive. The ebb and flow of party politics north and south of the border would, however, suggest that this is likely to be a relatively short-term situation. Furthermore, the use of the Sewel convention can be advantageous to both Edinburgh and Westminster, in that it enables a UK-wide approach to be taken in appropriate or non-controversial areas, avoids the risk of judicial challenge, and provides extra time in the Scottish Parliament. For further discussion, see N Burrows ‘This is Scotland's Parliament: Let Scotland Legislate’ (2002) 5 JR 213 at 234–236. See also A Page and A Batey ‘Scotland's other Parliament: Westminster's legislation about devolved matters in Scotland since devolution’ [2002] PL 501; and A Page, Written Memorandum given as evidence to the House of Lords Select Committee on the Constitution's Inquiry into Devolution: Inter-Institutional Relations in the United Kingdom, HL Paper 147, July 2002, 185, para 12.
87. See McFadden and Lazarowicz, above n 84, p 88.
88. Text to n 32ff.
89. For an excellent overview of the merits of ‘common law constitutionalism’, see Poole above n 15.
90. As indicated above, the Judicial Committee is currently the final court of appeal on matters relating to the legislative competence of the Scottish Parliament: see above n 49.
91. See the Scotland Act 1998, s 29(b), Sch 5, Pt I, para 1(b).
92. This possibility was a topic of heated (but not particularly illuminating) debate during the 2003 election campaign, when London-based Labour Party sources appeared to suggest that Westminster sovereignty would be exercised to prevent an SNP-dominated Scottish Parliament from legislating for a referendum on independence. Previously, Scottish-based Labour politicians and law officers had seemed to concede that, although legislating in order to effect constitutional change was reserved to Westminster under Sch 5 to the Scotland Act, the Scottish Parliament was able to legislate for a referendum on any topic, and that in political terms a majority vote for independence in a referendum could not be challenged. This latter view ultimately appeared to prevail in the closing stages of the 2003 campaign. For debate during the passage of the Scotland Bill, see HL Official Report (5th series) cols 1952–1956, 28 October 1998.
93. See discussion at above n 24.
94. Wade, above n 18.
