24th October 2021
In the Attorney General’s interesting recent speech on judicial review, there is the following passage:
“But this flexibility, this resilience, should not obscure the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689.
“That principle is Parliamentary Sovereignty – it both underpins and anchors our constitutional settlement.
“I agree with the position as advanced by Lord Bingham in Jackson v Attorney General:
“‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.'”
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The sharp-eyed among you may have noticed that the speech here switches between ‘parliamentary sovereignty’ and ‘the supremacy of the Crown in Parliament’.
Two s-words.
And you can see that the second s-word used is qualified by the term ‘Crown in Parliament’.
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Some use the two terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ interchangeably, as constitutional synonyms.
I try to avoid doing this, as I think there is a distinction between the two.
This is because parliament, in and of itself, is not sovereign.
What may be sovereign is, as Lord Bingham was careful to say but the Attorney General was not, is ‘the Crown in Parliament’.
An Act of Parliament – following royal assent – is the supreme law of the land.
But nothing else done by parliament is ‘sovereign’.
For example: a parliamentary resolution or standing order binds only parliament (if at all)
And statutory instruments can be struck down by the courts as ultra vires the parent Act of Parliament.
Parliament is only sovereign when its primary legislation is endorsed by the crown – and not in respect of any other activity.
Even the limits of so-called parliamentary privilege are subject to judicial construction and interpretation.
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The former appeals judge Stephen Sedley avers – correctly in my view:
“It needs to be understood, because events in the earlier part of [the twentieth] century have obscured it, that there are within the separate powers of the modern British state two sovereignties, those of Parliament and the courts.”
Sedley in turn quotes Lord Bridge from a 1991 House of Lords Case, X Ltd v Morgan Grampian (Publishers) Ltd:
“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.
“In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”
In other words: in interpreting and applying the law – but not in making or unmaking the law – the courts are sovereign too.
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This is not – or should not be – a surprise.
The sovereign entity in the United Kingdom is – as the label suggests – the monarch.
In law-making, the Crown and parliament are sovereign.
But in interpretation and application of the law, the Crown and the courts are sovereign.
Indeed, if you ever wander into a formal courtroom, you will often see the crown above the head of the judge.
(And just as those in the armed services salute the badge and not the person of a senior officer, when lawyers and others in court ‘all rise’ they are effectively paying respect to the source of the court’s power, and not to the person of the judge – or at least that is what you can tell yourself.)
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None of the above takes away from the legislative omnipotence of parliament in enacting primary legislation.
And it is certainly not an error to say ‘parliamentary sovereignty’ when one speaks of primary legislation.
But to do so may imply that parliament is the only form of state sovereignty in the United Kingdom (at least in England and Wales).
And it may imply that parliament is sovereign in some other respect than in enacting primary legislation.
Her Majesty’s Courts are, well, the Crown’s too.
And in interpretation and application of the law, the Crown and the courts are as sovereign as the Crown and parliament is in making and un-making the law.
So that is why – though it is only a personal preference – I tend to say ‘parliamentary supremacy’ – and not ‘parliamentary sovereignty’.
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may be a stupid question but could the crown change this rather confusing complicated speration of powers or can only parliament do this with royal assent. Or to make my question a bit clearer, how is the crown protecting soverengty of the courts
or parliament againts overreach of the unwritten constitutional rules from parliament or the courts. I really hope this makes any sense.
Can the monarch overrule the power of the monarch? Seems unlikely on the face of it.
However, unless the monarch withholds assent, it seems that parliament could propose that the power of the crown be reduced or removed. If it is accepted that the monarch never withholds assent, bingo!
I’m sure there’s a lot more could be said about this, preferably by the author of the blog. 😉
Thank you for these two clear distinctions of Crown competencies. A question from this non lawyer is therefore about suggestions that Ministers could strike Court decisions in Parliament.
Does that even make sense?
Following on from content above slightly, and obviously hypothetical: given it seems more by convention that the absolute power of the queen is delegated to Parliament, could the queen revoke or take back that power? Maybe constitution rather than convention, but that’s unwritten and malleable. Wars were fought over it, so again could not happen, a hypothetical question.
And, implicit in your argument, the point that some MP’s and Ministers choose not to see: they are, in their own person and in their official actions, subject to the rule of law.
So David how does this relate to the creation of law through the courts establishing precedent – so-called ‘judge made law’? Many parliamentary law makers are probably unaware of the extent of how this can come to restrict or exceed their original intentions in some spheres of law. Sometimes they would/should be concerned did they but know’ although the way parliament’s powers and processes operate would probably often inhibit their ability to do much about it.
The term ‘judge-made law’ seems to be very misleading and often used as a way to criticise judges. Judges do not make laws, they interpret that which parliament has made. If their interpretation is different to what the lawmakers in parliament intended, then perhaps the law as enacted was too ambiguous. If the difference is concerning enough to lawmakers, they can always amend the legislation to be more precise.