Debunking the idea of parliamentary sovereignty: The controlling factor of legality in the British constitution

Oxford Journal of Legal Studies

Volumn 28, Issue 4, 2008, Pages 709-734

  Lakin, Stuart ^a  

^a UNIVERSITY OF READING   (United Kingdom)

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EID: 57949108431     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqn019     Document Type: Article

References (185)

1. For a helpful overview of these debates, see A Bradley, 'The Sovereignty of Parliament, Form or Substance?' in J Jowell and D Oliver (eds), The Changing Constitution (6th edn OUP, Oxford 2007).
2. See AV Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, Indianapolis 1982 [reprint of 8th ed., 1915]).
3. J Austin, Wilfred E Rumble (ed.), The Province of Jurisprudence Determined (1832) (CUP, Cambridge 1995).
4. See HLA Hart, The Concept of Law (2nd edn OUP, Oxford 1994)
5. Ibid, ch 6.
6. Jackson v Her Majesty's Attorney-General [2005] UKHL 56.
7. In making this argument, I will draw upon Ronald Dworkin's sustained critique of Hart's work.
8. See R Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge, Massachusetts 1977), Law's Empire (Harvard University Press, Cambridge, Massachusetts 1986), Justice in Robes, (Harvard University Press, Cambridge, Massachusetts 2006).
9. I endorse what I take to be Dworkin's reading of Hart on this point: that, on the best reading of The Concept of Law (both the original edition and the postscript), Hart is committed to a conventionalist understanding of the rule of recognition. This is to say that there must be moral reasons to count the convergent attitudes of officials as being partly determinative of what we count as law. For a meticulously argued defence of a non-conventional reading of Hart,
10. see Julie Dickson, 'Is the Rule of Recognition Really a Conventional Rule' (2007) 27 OJLS 373-402. Dickson argues that there is a distinction - which, as a biographical matter, Hart accepted - between the existence conditions of the rule of recognition and any reasons that judges may have for following it. Alas, this is a disagreement that I cannot even begin to do justice to within this article.
11. See further (n 126).
12. Above (n 6) [107].
13. Above (n 2) 3.
14. Ibid 19.
15. Ibid 27.
16. It should be stressed that I am not setting out to present Dicey's theory as either a structural or empirical claim, but rather to use his arguments as a gateway into these different types of theories. Indeed, in line with the general argument in this article, it is my view that Dicey can only be understood as making the normative claim that it is right and proper that Parliament should possess an all-embracing legislative authority. This position, I think, represents a particular conception of legality and not of sovereignty.
17. See section 4 below.
18. See, for instance, R Filmer, JP Sommerville (ed.), Patriarcha and Other Writings (CUP, Cambridge 1991).
19. See T Hobbes, CB Macpherson (ed.), Leviathon (Penguin Books, London 1986).
20. Above (n 3), Lecture vi.
21. Above (n 4) 50.
22. Above (n 2) 3.
23. Ibid 3.
24. See, for instance, R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 115, at 131. Even the most progressive constitutional theorists seem to accept this position.
25. See, for example, P Craig, 'Ultra Vires and the Foundations of Judicial Review' [1998] CLJ 63-90, 86
26. J Jowell, 'Of Vires and Vacuums: The Constitutional Context of Judicial Review' [1999] PL 448-60, 458-9
27. and J Jowell, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] PL 671-83, 675.
28. But cf J Jowell, 'Parliamentary Sovereignty under the New Constitutional Hypothesis', [2006] PL 562'80, 565'6.
29. See the speech of Lord Bridge in R v Secretary of State for Transport, ex parte Factortame (No. 1) [1990] 2 AC 85,140.
30. See also, P Craig, 'Sovereignty of the United Kingdom Parliament after Factortame' (1991) 11 YBEL 221-55.
31. Cf HWR Wade, 'Sovereignty-Revolution or Evolution' (1996) 112 LQR 568-75.
32. See C Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, The Sovereignty of Parliament and Judicial Review' (1996) 55 CLJ 122-40, 133.
33. See, for instance, Sir John Laws, 'Law and Democracy' [1995] PL 72-93, 84-7.
34. For a recent judicial endorsement of this view, see the opinions of Lord Steyn and Lord Hope in Jackson above (n 6) [102] and [126]. I discuss the philosophical significance of these judicial dicta in section 4.
35. Austin allowed though for the possibility of non-legal constraints on the action of a sovereign.
36. See (n 3) 215-6.
37. For a detailed discussion, see N Stavropoulos, Objectivity in Law (Clarendon Press, Oxford 1996), ch 2.
38. See R Dworkin, Justice in Robes above (n 7) 142-3 who offers this example. It should be stressed that this is not Dworkin's own view for which see R Dworkin, Freedom's Law (OUP, Oxford 1996) 'Introduction: The Moral Reading and the Majoritarian Premise'.
39. One finds this type of argument in relation to the adjudication under the European Convention on Human Rights. Articles 8-12 of the Convention invite judges, firstly, to decide what the right is, and then to decide whether the state can legitimately interfere with that right. This analysis implies that the right has a prior fixed content before the court considers any legitimate reasons that the state may have for its decision or action.
40. For a robust argument against this type of approach, see G Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP, Oxford 2007), chs 5 and 6.
41. See, generally, R Dworkin, Justice in Robes (n 7) ch 6.
42. For the philosophical distinction between essential and accidental properties, see http://plato.stanford.edu/entries/essential-accidental/
43. It might be argued that Austin himself treats the existence of a sovereign as an accidental property of a state or constitution in so far as its existence is contingent on 'habits of obedience' by subjects towards a sovereign.
44. Hart seemed to express some sympathy with this approach, which derives from 'ordinary language' philosophy. For instance, he endorses the view of JL Austin, that '...we are using a sharpened awareness of words to sharpen our perception of the phenomena.' See Hart (n 4) 14
45. JL Austin, 'A Plea for Excuses', (1956-7) 57 Proceedings of the Aristotelian Society 8. Hart later sought to refute this association though.
46. See Hart, (n 4) 246-8.
47. Cf N Stavropoulos, 'Hart's Semantics' in J Coleman (ed), Hart's Postscript: Essays on the Postscript to the Concept of Law (Clarendon Press, Oxford 2001).
48. See R Dworkin, Justice in Robes (n 7), Introduction, chs 6 and 8.
49. Ibid.
50. See, Simon Winchester, The Meaning of Everything (OUP, Oxford 2003).
51. See Hart, (n 4), chs 2-4.
52. Ibid.
53. Ibid 105.
54. Ibid 110.
55. See T Endicott, 'Adjudication and the Law' (2007) 27 OJLS 311-26, 312.
56. Above (n 4) 90.
57. Ibid 117.
58. Ibid 111-2.
59. For a recent defence of this position, see A Marmor, 'Legal Positivism: Still Descriptive and Morally Neutral' (2006) 26 OJLS 683-704.
60. Above (n 4) 111-2.
61. See J Waldron, 'Hart and the Principles of Legality' (unpublished) delivered in The Legacy of H.L.A. Hart Conference, Cambridge, July 27-28, 2007.
62. Hart anticipates possible confusion between these two different views where he warns that 'It is important to distinguish [the] subordination of one criterion to another from derivation, since some spurious support for the view that all law is essentially ... the product of legislation, has been gained from confusion of these two ideas...' (n 4) 101.
63. Hence, Austin's theory is often described in terms of the rule of men rather than the rule of law. See R Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (2nd edn, LexisNexis Butterworths, London 2003) 70.
64. See also R Bellamy (ed.), The Rule of Law and the Separation of Powers (Ashgate Publishing, Aldershot, Hampshire 2005) 'Introduction: the Rule of Law as the Rule of Persons'.
65. See Hart (n 4) 148 and 151.
66. For a recent defence of Hart's account of Parliamentary sovereignty, see J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, Oxford 1999), especially chs 2 and 10.
67. Above (n 4) 247.
68. See also Hart, 'Positivism and the Separation of Law and Morals', (1958) 71 Harvard Law Review 598-629.
69. In the posthumously published postscript to The Concept of Law, Hart endorses so-called 'soft' positivism according to which it is acceptable for moral norms to be incorporated by reference into the ultimate rule of recognition. Above (n 4) 250-4.
70. This is to be contrasted with so-called 'hard' positivism, which does not allow for any recourse to morality in identifying the law. See, for instance, J Raz, The Authority of Law, Essays on Law and Morality (Clarendon Press, Oxford 1979).
71. Indeed, this is a claim made by a number of eminent constitutional theorists. See section 3 below.
72. (1979) 42 MLR 1-21.
73. Ibid 16.
74. Ibid.
75. Above (n 52) 19.
76. See also J Griffith, 'Judicial Decision-Making in Public Law' [1984] PL 564-82.
77. For a similar reading of Griffith, see A Tomkins, Our Republican Constitution (Hart Publishing, Oxford 2005) 37-9.
78. Cf T Poole, 'Tilting at Windmills? Truth and Illusion in "The Political Constitution"' (2007) 70 MLR 250 77, 253 and, especially, at 274-7.
79. See also TRS Allan, 'The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry? [2002] CLJ 87-125, 91-2.
80. See S Sedley, The Sound of Silence: Constitutional Law without a Constitution' (1994) 110 LQR 270-91
81. 'Human Rights: A Twenty-First Century Agenda' [1995] PL 386-400, 389,
82. and 'The Common Law and the Constitution', in Lord Nolan of Brasted and Sir Stephen Sedley (eds), The Making and Remaking of the British Constitution (Blackstone Press, London 1997) 26.
83. See J Griffith 'The Common Law and the Political Constitution', (2001) 117 LQR 42-67.
84. Commentators sometimes refer to Griffith as a 'functionalist'. There is some disagreement though as to whether such a label implies a 'descriptive' or 'prescriptive' approach, or both. See M Loughlin, 'The Functionalist Style in Public Law' (2005) 55 University of Toronto Law Journal 361-403, 368.
85. Cf. A Tomkins, (n 54) 39.
86. Above (n 6).
87. Ibid.
88. See, in particular, Lord Hope [124], Lord Bingham [36], Lord Nicholls [63] and the Court of Appeal [2005] QB 579 [97].
89. Ibid [25].
90. Ibid [24].
91. Ibid.
92. Ibid [32].
93. Ibid.
94. Ibid. With the possible exception of Baroness Hale at [166].
95. Ibid [59]. Lord Carswell explicitly agrees with Lord Nicholl's reading at [175].
96. Ibid [61].
97. Ibid [79].
98. Similarly see Lord Rodger at [139].
99. Ibid [102].
100. Ibid [120].
101. Ibid [159].
102. Ibid [102] per Lord Steyn and [126] per Lord Hope. Baroness Hale perhaps implicitly agrees with these views given that she entertains the possibility of courts rejecting an attempt by parliament to deny access to a court.
103. See R Ekins, 'Acts of Parliament and the Parliament Acts', (2007) LQR 91-115, 102.
104. Ibid.
105. Above (n 49) 236.
106. Ibid 240.
107. See also J Goldsworthy, 'Is Parliament Sovereign? Recent Challenges to the Doctrine of Parliamentary Sovereignty' (2005) 3 New Zealand Journal of Public and International Law 7-37, 7.
108. This is particularly so in relation to the dictum of Lord Hope (n 70) who seems to suggest in characteristically Austinian fashion that the limits on sovereignty are extra-legal rather than legal limits.
109. Distinguishing this case from Pickin v. British Railways Board [1974] AC 765.
110. Jackson (n 6) [25] and [110].
111. Ibid [102] and [159].
112. Ibid [120].
113. Wade 'The Basis of Legal Sovereignty' (1955) 13 CLJ 172-97.
114. See generally, T Allan, Law, Liberty and Justice, the Legal Foundations of British Constitutionalism (OUP, Oxford 1993)
115. Constitutional Justice: A Liberal Theory of the Rule of Law (OUP, Oxford 2003).
116. See Sir John Laws, 'Law and Democracy', (n 23).
117. For an excellent discussion of the similarities, on this point, between Wade and Laws, see P Craig, 'Competing Models of Judicial Review' in C Forsyth (ed) Judicial Review and the Constitution (Hart Publishing, Oxford and Portland, Oregon 2000).
118. This reflects the classical 'social contract' position whereby citizens give their tacit consent to the authority of the state only under certain conditions, say, of liberty and equality. See, for instance, J Locke, Peter Laslett ed.), Two Treatises of Government (CUP, Cambridge 2003).
119. This type of approach is found in theories of civic republicanism. See, for instance, Tomkins (n 56).
120. See also Lord Woolf CJ in the Court of Appeal in Jackson who includes attitudes of 'the populace' in the calculation, (n 62).
121. See Hart, (n 4) 148.
122. Ibid 117.
123. See Jackson, (n 6) [81].
124. This applies, a fortiori, to Griffith for whom the identity of the ultimate lawmaker does not even require acceptance by officials: Parliament is whatever it happens to be. See (n 52) 16.
125. To use Dworkin's two dimensions of interpretation, this reasoning neither 'fits' nor 'justifies' the fact that Parliament possesses legislative powers in the British constitution. See R Dworkin, Law's Empire, (n 7) 139.
126. See Jackson, (n 6) [157]. This principle, I think, justifies the view expressed by different judges that the point of the 1911 Act was to restrict the power of the House of Lords.
127. The principles of democracy and checks and balances are, of course, precisely the types of principles that have historically motivated political debates about the reform of Parliament. See, for instance, Report of the Royal Commission on the Reform of the House of Lords (Chair: Lord Wakeham) Cmnd 4534, 2000). It would be odd then if these principles played no part in the way that judges define the concept of Parliament.
128. I certainly do not mean to imply that there cannot be law unless there is democracy. If it were plausible to suppose that Freemasons and Knights of the Realm (or whomever) do in fact exercise legislative power in British legal practice, then it may be that we could justify that power according to, say, the principle of protected expectations or certainty if most people in fact obeyed their edicts.
129. See Hart, (n 4) 151.
130. For an insightful discussion of the legal and constitutional implications of this type of development in Britain, see R Dworkin, A Bill of Rights for Britain (Chatto & Windus, London 1990).
131. Baroness Hale plays with these types of ideas but she does so, it is suggested, without recognising that there are certain principled limits to the ways in which Parliament qua Parliament can redefine itself. See Jackson, n 6) [163].
132. See Dworkin, Taking Rights Seriously (n 7) 54-8
133. and Law's Empire (n 7) ch 4.
134. See Jackson, (n 6) [67]-[69] and [171].
135. Under the rule in Pepper v Hart [1993] AC 593.
136. See Jackson, (n 6) [65], [97] and [98].
137. See Hart, (n 4) 123, 147-54 and 251.
138. See, generally, R Dworkin, Justice in Robes (n 7), chs 1 and 2.
139. See J Griffith, 'The Brave New World of Sir John Laws', (2000) 63 MLR 159-76.
140. Again, this is the position of so-called 'soft' or 'inclusive' positivists. See (n 50).
141. See R Dworkin, Taking Rights Seriously, (n 7) 39-45.
142. Dworkin helpfully expresses these differences in reasoning in terms of 'concurrent' and 'conventional' morality. As he says, 'A community displays a concurrent morality when its members are agreed in asserting the same, or much the same, normative rule, but they do not count the fact of that agreement as an essential part of their grounds for asserting that rule. It displays a conventional morality when they do'. Ibid 53.
143. See, for example, Forsyth, (n 22).
144. The so-called 'modified' ultra vires theory seeks to preserve this basic intuition albeit that Parliament is said to have an abstract intention that judges give effect to the rule of law rather than concrete intentions as to particular principles of judicial review. See C Forsyth and M Elliott, 'The Legitimacy of Judicial Review' [2003] PL 286-307.
145. See, for instance, D Oliver 'Is the Ultra Vires rule the basis of judicial review?' [1987] PL 543-69
146. P Craig, 'Utra Vires and the Foundations of Judicial Review', (n 20).
147. See P Craig, 'Constitutional Foundations: The Rule of Law and Supremacy' [2003] PL 92-111, 93.
148. Ibid.
149. Ibis, I think, is clearly the meaning afforded to the term 'sovereignty' by a number of other leading constitutional theorists.
150. See Sedley, (n 57)
151. TRS Allan, (n 86).
152. UK lawyers commonly use phrases such as 'shared sovereignty' or 'pooled sovereignty' (among many other variations) when they refer to the relationship between the United Kingdom and the EU institutions. See, for example, Neil Walker, 'Late Sovereignty in the European Union', in Walker (ed.), Sovereignty in Transition (Hart Publishing, Oxford 2003) 10-18.
153. In the European context, just as in the context of the powers of institutions within a state, the word sovereignty, I think, seems to connote something like 'power' or perhaps more aptly 'competence'. Other commentators have lately dispensed with the language of sovereignty and described the relationship between member states and the EU as one of 'legal pluralism'. See N MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (OUP, Oxford 1999)
154. P Eleftheriadis, 'The Idea of a European Constitution' (2007) 27 OJLS 1-21, 14.
155. In the context of public international law too, there appears to be a movement away from the idea of absolute sovereign states towards the idea that there are certain normative conditions attached to the exercise of state power. See M Koskenniemi, From Apology to Utopia (CUP, Cambridge 2005), ch 4.
156. As Jowell has recently put it, the allocation of political power depends on 'a moral claim to its exercise (or limitation)'. See Jowell, 'Parliamentary Sovereignty' (n 20) 565-6.
157. The most assiduous proponent of this type of theory is TRS Allan. See (n 86).
158. See also Lord Woolf 'Droit Public - English Style' [1995] PL 57-71.
159. It might be argued though that the House of Lords has recognised the primacy of the principle of legality through its 'constitutional rights' jurisprudence. See generally Jowell (n 20).
160. Jackson (n 6) [107] (my emphasis).
161. And see O Dixon, "The Law and Constitution' (1935) 51 LQR 590-611, 596.
162. Jackson (n 6) [104].
163. See also similarly P Craig (n 106) 107-11 who suggests that sovereignty does not mean 'absolute' sovereignty; judges place a variety of different constraints on sovereign power through various different forms of statutory interpretation. Craig makes his argument in response to Allan's view that the idea of Parliamentary Sovereignty cannot permit of any limits to Parliament's power.
164. See TRS Allan, 'Conceptual Conundrum' (n 56) 89-90.
165. For detailed discussion on this question, see, for instance, Goldsworthy (n 49) 250,
166. P Craig, 'Public Law, Political Theory and Legal Theory' [2000] PL 211-39, 217-22.
167. Indeed, even if one were to adopt an Austinian or Hartian account of the power of law-makers, it would make no sense to speak in terms of legal limits on sovereignty. The Austinian sovereign is, by definition legally unlimited; and for Hart, the law-making powers of Parliament (or some other law-maker) are determined by a rule of recognition. In this respect, it is submitted that Allan (n 120) must be correct.
168. Jackson (n 6) [107].
169. Ibid.
170. See Dworkin, Justice in Robes (n 7) 170.
171. For a good overview of different conceptions of legality, see P Craig 'Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework' [1997] PL 467-87.
172. See, more recently, J Jowell, 'The Rule of Law and its Underlying Values', (n 1) 210.
173. See Hart (n 4) 91-7
174. Raz, The Authority of Law (n 50) 210.
175. Hence, many judges require only that a document appear 'on the Parliamentary roll'. See Lord Hope in Jackson (n 6) [112].
176. These conditions equate roughly to Hart's emphasis on consensus and the core meaning of words. See sections 1 and 2 above. Dworkin recasts Hart's 'descriptive' theory as an 'interpretive' morally engaged theory which he describes as 'conventionalism'. See Dworkin, Law's Empire (n 7) ch 4.
177. According to this interpretation of British legal practice, there are moral reasons to count clear, well-known and widely accepted rules as the operative standards in the constitution. As I have explained (n 8), I endorse this reading of Hart.
178. This is the position taken by so-called 'ethical' positivists. See T Campbell, Prescriptive Legal Positivism: Law, Rights and Democracy (Routledge-Cavendish, 2004)
179. J Waldron, 'Normative (or Ethical) Positivism' in J Coleman (ed), Hart's Postscript (n 33), ch 12.
180. This is a rough account of Dworkin's theory of law as integrity. See Dworkin, Law's Empire (n 7) ch 6.
181. A number of theorists have objected to an expansive definition of the concept of legality on the basis that it robs the concept of any independent value. See Raz, (n 50) 299.
182. See also Jowell, 'The Rule of Law and its Underlying Values' (n 1) 16.
183. Dworkin, Justice in Robes (n 7) 172.
184. Jackson (n 6) [107].
185. Other argue in support of some other value or values. Sir John Laws, for example, has placed the value of autonomy at the heart of his constitutional theory. See Sir John Laws 'The Constitution: Morals and Rights' [1996] PL 622-35.