In the first flurry of publicity around the present referendum on the UK’s EU membership, the expected statement regarding the securing of UK sovereignty has not, perhaps surprisingly, been forthcoming. Instead we have been treated to rebuttals of Gove on the role of the European Court of Justice and scorn for Johnson’s double referendum from Cameron. But ‘never mind the Boris’, it would be helpful to be clearer about sovereignty.
That the first confusion in the discussions around sovereignty is between national sovereignty – a matter of how one nation-state relates to other nation-states, and Parliamentary Sovereignty – a matter of how one institution of constitutional importance relates to other institutions of constitutional importance within one nation-state, does not encourage us to expect clarity of thought regarding the use of the concept. Particularly if, as seems to be the case in the current referendum debate, asserting Parliamentary Sovereignty is equated with asserting national sovereignty.
The cry is “We must be free to make our own laws!” – this is taken to be the litmus test for both kinds of sovereignty. But does sovereignty include the power to make our own treaties? And treat them as binding? To make some of our own laws fundamental, thereby limiting our future law-making capacity? Or are those types of laws the laws we must not be free to make in order to sustain our freedom to make any future laws we may care to make? One current of constitutional thinking suggests that these questions were answered in theory with the passing of the European Communities Act 1972, and in practice in the Factortame decision of 1991. The statute opened up the possibility that the courts (the UK courts) were being invited to treat all subsequent legislation as valid ‘subject to’ Community Law having force in the UK, and the case established that this did indeed mean setting aside conflicting domestic law. Thus sovereignty included the power to bind future Parliaments. (This was significant because it went against the classic Diceyan doctrine that part of the definition of Sovereignty is that one Parliament cannot bind future Parliaments, thus keeping Sovereignty alive.) Faced with this ‘death of Sovereignty’ (dead because another limb of the definition, ‘that no court has the power to set aside the legislation of Parliament’ was clearly no longer operative), Sovereignty die-hards resorted to asserting the theoretical possibility of the 1972 Act being repealed, generally conceding that while it remained in force, Parliament’s law-making competence was curtailed, by its own choice.
An Out vote in the referendum would lead directly to that repeal, thus proving the validity of the classic Sovereignty position that any law made by Parliament can be unmade by Parliament, and that that is a crucial element of the definition. It is significant however that Parliament seems to lack the confidence necessary in its own legitimacy simply to repeal the 1972 Act. It will only do so ‘under instruction’ so to speak, when the view of the people is clarified by a referendum. It might be more precise to say that Parliament, in legislating for a referendum on the matter, is conceding that it lacks authority in its own right to take such a decision, that its authority is derivative only, derived from the people, and the referendum device acknowledges that, in matters of constitutional significance –as with Scottish independence – sovereignty truly lies with the people, and furthermore, the voice of the people is not heard clearly via its representatives in Parliament (both elected and unelected, Commons and Lords) but must be heard more clearly, amplified, by means of a referendum. Democracy is now taken as requiring that such referenda be treated as not merely consultative processes to carry advisory weight on Parliament’s deliberations, but as the unassailable decision of the people, binding, as a matter of democratic principle, on Parliament and Government. So, in order to re-assert Parliament’s Sovereignty, devices that acknowledge that Parliament is not Sovereign would be utilised.
It might be argued that this objection is not serious, because of course, we are only interested, as democrats, in Parliamentary Sovereignty as a vehicle for delivering Popular Sovereignty, and if the occasion demands that Popular Sovereignty be delivered by another mechanism, as with a referendum, that is merely a tactical question, not an issue of principle. In this perspective Parliamentary Sovereignty matters only because Parliament is the democratic forum. This ignores the obvious fact that only the House of Commons is elected (and that by a rather imperfect first past the post system), and not one but two of the other elements which make up Parliamentary Sovereignty, namely the House of Lords and the Monarchy, are not. The franchise is a relatively recent accretion upon the body of Parliamentary Sovereignty, dating back only more or less one century out of more than three centuries of the doctrine’s post 1688 clarification.
An In vote in the referendum, it is claimed, is justified on the basis of a different clarification of the meaning of Parliamentary Sovereignty. A Parliamentary Sovereignty ‘put beyond doubt’, would be part of the future redefined relationship of the UK with the EU. Out voters would assert that only an Out vote leading to repeal of the 1972 Act can achieve this. The In campaign disagrees, arguing that a Sovereignty Act, enacted by Parliament, could achieve what is necessary and desired. This position no less than that of the Out campaign remains entangled in paradoxes. Once again, in order to re-assert Parliament’s Sovereignty, devices that acknowledge that Parliament is not Sovereign would be utilised. Why would there be a need to ‘restate’ and ‘put beyond doubt’ Parliamentary Sovereignty? Only because it was in doubt or had been lost: those who propose a kind of constitutional declaration of Parliamentary Sovereignty are precisely those who believe it was lost (or at least compromised – one of the great dilemmas of sovereignty is whether it has to be viewed as a matter of all or nothing, or whether the notion of ‘sovereign within limits’ is an oxymoron) with the passing of the European Communities Act 1972. In other words, they wish to invoke the sovereign power to unmake a law in the making of a new one, but they wish the new one to be put beyond any future unmaking. In order to save sovereignty, it was necessary to destroy it. A Parliament bound by a constitutional rule entrenching its sovereignty would not be a sovereign Parliament, the rule would be sovereign, not the Parliament. Or, put another way, the Parliament that enacted the Sovereignty Act would be sovereign over all future Parliaments, which would thereafter acting with a limited authority delegated by the originary Parliament.
The mindset is not fear of an encroaching Europe, but of some kind of treacherous future ‘fifth columnist’ Parliament willing to embrace the transfer or pooling of sovereignty to a trans-European institution. In this paranoia, future Parliaments are not to be trusted with calculating whether trading off Sovereignty for other benefits might be in the national interest. These would be legislative choices they would be constitutionally barred from exercising. Consider: what body could state the sovereignty of Parliament? If a body other than Parliament, then that body would be giving sovereignty to Parliament, therefore would be superior to it. If the body was Parliament, it could do so only by enactment, by passing a statute, and a statute is a message to the judiciary empowering the judiciary to interpret its meaning. A ‘Sovereignty Act’ would empower the Supreme Court to adjudicate the competing claims of validity of English and European law – so, the matter would become justiciable, and the judiciary would take the decisions on a case by case basis as to the validity of English or European Law. Or perhaps the idea is a version of the Human Rights Act regime with the judiciary not empowered to declare the (in)validity of Parliamentary enactments (because then Parliament is no longer sovereign, but an institution of limited competences working within a judicially interpreted constitutional regime), but only to declare (in)compatibilities, with no presumption that incompatibility equals invalidity? This leads to a spiralling involution whereby the judiciary would refer the matter back to Parliament, which would enact a clarification, which would require judicial interpretation, a possible further declaration of incompatibility ad infinitum. Given that we are dealing with treaty re-negotiations carried out by the executive under prerogative powers (remembering therefore that, in order to protect Parliamentary Sovereignty, any executive use of prerogative powers must be incorporated into English law by Parliamentary enactment to achieve domestic effect, an enactment Parliament could reject or amend) the problem becomes even more intractable: either Parliamentary sovereignty is to be created by judicial activism or by executive political action. In neither case is Parliamentary Sovereignty a product of Parliament’s own power – it is either the gift of the judiciary or of the executive.
The crux of the matter is that the English doctrine of Parliamentary Sovereignty is one defined by the lack of limits to legislative competence, the enemy of which is any form of entrenchment, but the new enthusiasts for Parliamentary Sovereignty wish to guarantee it by, precisely, entrenchment. The government’s suggestion, already legislated for in the European Union Act 2011, for example, that any treaty negotiations which impinged upon domestic law would not be ratified until subjected to approval by referendum, is presented as an entrenched defence of Sovereignty. An argument can be made that this makes sense if we are talking about a political concept of national state sovereignty, but it is entirely destructive of Parliamentary Sovereignty. Direct consultation of the people in a democracy by referendum renders the role of Parliament superfluous, whose claim of Sovereignty as a necessary adjunct of democracy is entirely about being the arena (the only arena) where the views of the people are expressed. The creation of a two-tier constitutional system, where some laws are more entrenched than others, some are made and unmade by Act of Parliament alone, but others require Act of Parliament + Positive vote in a Referendum would be an entirely coherent development, but it would be the end of Parliamentary Sovereignty in the Diceyan sense of Parliament possessing the power and right to make and unmake any law whatsoever.
It can be argued that this is where we are heading to anyway, if we have not already arrived there – judicial comments about ’constitutional statutes’, the Smith Commission’s reference to the permanent status of the Scottish Parliament, amongst other straws in the wind, suggest that the idea that Sovereignty has to mean the untrammelled ability to start anew, to unmake as well as make, has become hedged around by a changed constitutional landscape in which permanent features have solidified into – well, permanence. And many who hold politically progressive views would consider this an overdue and good and necessary development, the logical destination of which is a written, codified and entrenched constitution, clarifying the powers of Parliament, Judiciary and Executive and also the relation between domestic law and international obligations. But the critical perspective has always insisted on the presence of politics in any attempt by law to present itself as beyond politics – it might be said that the defining critical gesture is always the rejection of the assertion that ‘this isn’t politics it’s law’, instead insisting that the attempt to present law as ‘not political’ is itself a political ploy. This should give the enthusiasts of ‘modernising’ our constitutional arrangements pause for thought, as the move to put the constitution beyond politics, even beyond ordinary law, in an arena governed by a consensus defined as unchanging, is fraught with dangers.
The sovereignty question is posed as if a mutually exclusive zero-sum game – If A is sovereign, then B is not, with sovereignty equated with supremacy. It seems logical: only one can be on top with none higher; sovereignty means not taking orders from any other. But is this a question of national sovereignty, and how it comes into play in international law? If so, sovereignty can be something deployed to make a commitment – sovereign states sign international treaties to enter into binding agreements. Of course, the EU is not another sovereign state, and the question of whether this is international or supranational law arises. But a sovereignty only ever invoked as something lost, or to be restated /reclaimed, but not used in the international arena would be a peculiarly parochial sovereignty. Our sovereignty would mean our power to make our own laws, but would never be allowed to acknowledge and negotiate with other sovereignties for fear of contamination. The key term being deployed in the current debate is Parliamentary sovereignty, not national sovereignty (or the two are assumed to be the same thing).
This raises another level of complication, because if national sovereignty is generally understood to be a political concept, Parliamentary sovereignty is pre-eminently a legal concept, the constitutional notion of Parliament’s legislative omnicompetence. The European Union Act 2011 appears to be a reinforcing, an entrenchment of sovereignty – indeed Lord Howell stated that its purpose was ‘to undertake that what a sovereign Parliament can do, a sovereign Parliament can always undo’ (6/10/10). This lopsided echo of Dicey, for whom Parliamentary Sovereignty meant ‘the right to make and unmake any law whatever’ reveals the nature of the new emphasis: Parliamentary Sovereignty can unmake the effect of any EU law in the UK, because EU law enters UK law only through Acts of Parliament, and Acts of Parliament can always be repealed (this is the sense of s.18), but Parliamentary Sovereignty can no longer make any law whatever – at least, not unaided. For the sense of s.2 is that a Parliament that wishes to use its Sovereignty to enact a transfer of sovereign power to the EU cannot do so without first holding and securing a majority in a referendum agreeing to do so. Such treaties cannot come into force – Parliament cannot enact their incorporation into UK law – without a referendum.
This might be presented as an extension of the manner and form debate, that Parliament is merely amending its own law-making procedures, but this goes beyond the relationship between the two Houses, as in the Parliament Acts of 1911 and 1949, into the relationship between two sovereignties, that of Parliament and that of the people as expressed in a referendum. It is once again the vexed question of entrenchment, because the question is whether future Parliaments are bound by this new rule – in which case they are no longer sovereign – or whether a future Parliament could repeal this rule too. Bear in mind that the government is claiming that this is further entrenched by being the content of an international legal agreement which would need the consent of all 28 signatories for future amendment. I would have said that ‘entrenched sovereignty’ is another of those oxymoronic phrases, as entrenchment is inimical to sovereignty. However, the matter can be resolved by returning to our initial distinction between national and Parliamentary Sovereignty. The 2011 Act entrenches national sovereignty by way of limiting (destroying?) Parliamentary Sovereignty. It seems likely that any proposal to ‘put sovereignty beyond doubt’ will take a similar path. Sovereignty is dead, long live Sovereignty.
Angus McDonald, Associate Professor Emeritus, Staffordshire University, currently researching Constitution, Culture & Critique at Birkbeck.