Category: Constitutional Law

The ‘c’ word – why ‘corruption’ is the accurate word for describing what the United Kingdom government is doing

16th November 2021

Corruption is more a political than a legal term – at least in the law of the United Kingdom.

For instance: there are no current Acts of Parliament with corruption in their title:

In criminal law there is no particular offence of corruption – but instead offences in respect of bribery and misconduct in public office.

Neither of these offences equate with corruption.

Bribery is too narrow – for taking and giving bribes is only a subset of corruption.

And misconduct in public office is too wide – for this umbrella term can cover official misbehaviour that is not necessarily corrupt.

In everyday legal practice the word corruption is now often lumped in with anti-bribery – with the acronym ABC being used to discuss any policies and laws that deal with such wrongful behaviour.

So to talk of corruption, at least in the United Kingdom, is not to speak of anything legally specific.

The word is about politics, not law.

So if you think term corruption should be used to describe the current government of the United Kingdom then it is because it is a better political (than legal) fit than any other term.

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The other common term on offer is sleaze.

This word is widely used perhaps for two reasons.

The first is because it was once an effective word.

As anyone who can remember the 1990s will know, this term once had considerable media and political purchase.

The word sleaze dominated and perhaps changed British politics.

And so perhaps those using the term are hoping that using the word similarly catches the worlds of media and politics alight again.

An attempt to re-live the 1990s.

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“I’m a firestarter, twisted firestarter.”

The Prodigy, 1996

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The second reason for the avoidance of the ‘c’ word is far less commendable.

It is the notion that corruption is what other nations do – and so the avoidance of the word is an example of British exceptionalism.

Here I recommend the @gathara account by Patrick Gathara and his long-running threads that frame the politics of the United Kingdom, Europe and America in the same (condescending) terms that the politics of Africa are often framed by those in the United Kingdom, Europe and America.

The threads make for uncomfortable and telling reading.

(I have seen these threads described as parody, but the thing is that they are not really parody, and perhaps the opposite, for this is exactly the style in which the media and politicians of United Kingdom, Europe and America routinely frame African affairs – it is a house style, not satire.)

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Corruption, as a word, means debasement.

Think of a corrupted program.

This is more than intended dishonesty – for things can be debased for various reasons.

The general and sustained assault by the British government on a range of institutions and bodies that provide checks and balances is an exercise in debasement.

There is no better word than corruption for what this government is doing to our polity.

For instance: the ultimate problem with the Owen Paterson affair was not so much the paid advocacy – for that had been identified, investigated and decided upon by the relevant committee, and so the system was ‘working’ – but the blatant attempt by the government to use its power to attack the committee and the system generally.

That was the real debasement.

The state of the United Kingdom is being corrupted.

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Politicians and the media use the words and phrases which they perceive as working in their interests.

And politicians and the media currently see the word sleazy as being expedient.

But they also, it seems, see the word corruption as not being advantageous.

Why would that be?

Perhaps is because to use that ‘c’ word would mean that we finally accept that British exceptionalism is a sham.

For the United Kingdom is a corrupted state too.

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Solving the problem of the House of Lords

13th November 2021

Over at the Financial Times, there is an interesting and informative piece about the hereditary peers in the house of lords.

And the point of the article is compelling: they make no sense.

The hereditary peers, as with the bishops of the established church of just one(!) of the four home nations, have no place in the legislature.

The only possible plausible argument for their presence is that, at least, there are members of that chamber that do not own their place to patronage.

But that is not much of an argument.

The biggest problem about the house of lords is not so much that of personnel but of function.

And unless we work out the proper function of the upper chamber then there can be no consensus on how to replace the hereditary peers and English Anglican bishops and on how to reform the house more generally.

What is the house of lords for?

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Some may aver that the chamber should have a representative function – perhaps of the home nations or the regions.

(This like the old notion that the house of lords was there to represent the agricultural/landed interests and church interests so as to balance the interests of those represented in the commons.)

Or its membership at least based on being elected by some different configuration than the house of commons.

Like the senate in the United States having two senators per state as opposed to the variable number of representatives per state in the other house of congress.

But this view raises the potential problem of rival mandates, with both houses claiming the legitimacy of the electorate.

In the United States that problem is avoided in part because of tradition, but also because the two houses have some different functions and are elected on separate cycles.

Such a balance would not be easy, at a stroke, to transplant into the United kingdom.

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Far more important than any representative function is, in my view, to retain and improve the revising and scrutiny role.

Here the house of lords, despite its lack of democratic legitimacy, serves the public interest in legislation often being better than it otherwise would be.

Placing the house of lords on some sort of democratic basis would risk losing this valuable role.

But other than through the patronage of the prime minister and others, how should members of this upper house be appointed?

On one hand they need to have the experience, ability and independence to say ‘no’ to a government so as to force reconsideration (though not to veto completely).

On the other hand, they need to have some legitimacy in a democratic society, and so whoever appoints them must have some direct relationship with the electorate.

Indeed, it may even be that there cannot be any reform of the house of lords until there is prior reform of the over-mighty house of commons.

And that in turn may need electoral reform and so on in an almost innate political regression.

Where would you start?

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So, back to the immediate question: how do we solve the problem of the house of lords?

There is no obvious solution – at least not one that does not risk losing what is valuable about a revising and scrutinising upper chamber.

And an unchecked house of commons is not an attractive prospect.

Like the crown, the constitutional significance of the house of lords may be not so much what powers it does have, but what powers it prevents others from having.

Getting rid of the hereditary peers and the bishops – although welcome – leaves the more general issue of what the house of lords is for unsolved.

Perhaps there is no practical and immediate solution.

And that is why in 2021 – 110 years after the temporary retention of peers in the 1911 Parliament Act – we still have this odd system.

(Emphasis added.)

Perhaps in another 110 years we will have a solution.

Or perhaps not.

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Do we really want lawyer-politicians?

10th November 2021

Today is the first year anniversary of this daily blog.

Woo hoo.

Every single day since 10 November 2020 there has been a post on this site: some long, some short, some ignored, and some which have been very popular indeed.

There have been 1.5 million(!) hits on this blog in the last twelve months.

Thank you to everyone who reads and promotes the posts – and a particular thank you to those whose kind donations make it possible for me to justify the opportunity cost and time to keep this daily blog going on a free basis for everyone.

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So today let us look at a story at the heart of law and policy and politics: lawyer-politicians.

The story of Geoffrey Cox is in the news – and over at Joshua Rozenberg’s blog, there is a sterling defence of Cox.

And if you want a sterling defence of Cox then there is where you should go.

This post is instead a half-hearted and implicit defence of Cox.

It is however a defence of having lawyer-politicians, arguing from general principle rather than unattractive facts of this particular case.

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Do we want lawyer-politicians?

By this I mean, members of either house of parliament who are also practicing lawyers.

In the current (unreformed) house of lords, there is no doubt that there is immense benefit from having cross-benchers who are practising lawyers such as Davids Pannick and Anderson, as well as retired law lords who may also be earning fees as arbitrators or mediators.

And if that is to the benefit of the house of lords then it is difficult to argue from principle that it would also not be a benefit to the commons – even if the quality of the lawyers is less stellar.

The office of lord chancellor (which is also secretary of state for justice), and the jobs of the law officers (attorney-general and solicitor-general) all presuppose that there are competent lawyers in parliament to fill such posts (though the lord chancellorship can also be held by non-lawyers).

Practising lawyers can only be banished from the house of commons once there has been proper consideration of what would then happen with the role of law officers.

Maybe it is time to take these roles out of the hands of politicians; maybe not.

But that is a decision which would have to faced before we get rid of practising lawyers from the house of commons.

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It is a public good that there lawyer-politicians in parliament.

Law-makers make laws, and so a professional background for politicians in dealing with laws is thereby a public benefit.

It is also a public good that lawyer-politicians can be candid and semi-independent law officers telling the government unwelcome truths.

The problem with the current law officers is not that they are lawyers, but that they are unwilling to be robust in their special autonomous role.

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Law is one of the main ways of crafting public policy, and so the better laws we have the more public policy will benefit.

And the better the understanding of our legislators about how law works in practice, the better public policy will be generally.

We should therefore be glad there are lawyer-politicians in general, even if some examples are difficult to accept politically.

And if the objection to a particular lawyer-politician is political, then it should be a matter for politics how that particular case is dealt with.

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It could be argued that on election, any lawyer who becomes a member of parliament should cease practicing, and become a full-time politician.

They would still have the benefit fo their legal training and experience.

We would still have lawyers in parliament, they would just be former practising lawyers.

That is a good argument.

But my fear would be that this would limit the number of lawyers who become members of parliament – and already there may be too few for there to be competent law officers (and shadow law officers).

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All this said, however, there can be little sympathy for Cox.

Presumably he cannot even hide behind the cab-rank rule, as that famous rule that barristers must accept instructions does not apply to foreign work.

And voting in the commons from a tax haven, and (it seems) working in that tax haven from his commons office, is not the most impressive feat for a lawyer-politician in the great traditions of the Bar.

The argument about ‘experience’ does not wash either, as a Queens Counsel can be presumed to have valuable experiences in any of their client work.

So it is hard to make a positive case for Cox, and so I will not.

He is, however, saved by the general argument: that if we are to have lawyer-politicians then there will have to be the Cox apples in the barrel as well as those whose practices are less, ahem, glamorous.

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So I mark the first anniversary of this daily blog with a defence of lawyer-politicians generally (but with no explicit defence of Cox in particular).

Thank you again for reading, promoting and supporting this daily law and policy blog, and I will see how I can keep up going on this daily basis for another year.

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What is natural justice?

9th November 2021

The phrase natural justice is rather grand.

When a person avers there has been a breach of natural justice then it sounds that something both bad and important has happened.

Not just a mere commonplace injustice – but a breach of natural justice.

But what does it mean?

And were former member of parliament Owen Paterson and his supporters right to claim there had been a breach of natural justice in his case?

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There is no one fixed definition of natural justice.

Traditionally it had two components.

The first – for which the Latin is nemo iudex in causa sua – is that nobody should be a judge in their own cause.

In practical terms this is the rule against bias – a decision-maker should not have actual or apparent bias in any determination that affects the rights and obligations of others.

The second – for which the Latin is audi alteram partem – is that anyone whose rights and obligations are to be determined shall be allowed to put their case – and to know the case against them.

This rule means that in an adversarial dispute between parties that both sides should be heard, or in an inquisitorial matter, that the person affected can have their say.

It is also now common to say that there is a third component of natural justice: that the tribunal or decision-maker should only make their determination or decision on the evidence put before them and applying the relevant tests.

As you can see, natural justice is about ensuring the integrity of determinations and decisions that affect the legal position of others.

And the reason it is natural is that these are the basic requirements of any determinations and decisions that affect the legal position of others.

Unless there is natural justice then the rest of the case is undermined.

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I thought the above exposition had to be made as I was looking at the report into Owen Paterson (written evidence here),where allegations of breaches of natural justice feature heavily from an early stage, almost as if it were a deliberate litigation strategy.

Perhaps I may write at more length about whether there were breaches of natural justice in the investigation in his case.

Let me know below if that would be of interest.

Why Policy U-Turns are a Good Thing – but also can be a Very Bad Thing

8 November 2021

The news media are compiling lists of government u-turns.

Over at Politico, there is a list of thirty six u-turns in 23 months:

While over at the Daily Mail – under the generic byline of ‘Daily Mail Reporter’ – there is a list of forty three u-turns since January 2020:

(Hat-tip: Joel Taylor)

Some of these u-turns will be familiar, some you will have forgotten, and some you may have missed at the time in the whoosh of events.

Some are even reversals of positions that were expressly set out in the manifesto on which the current governing party was elected.

So much, then, for ‘the will of the people’.

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On the face of it, u-turns are a good thing – or at least the willingness of a government to change position on policy.

Imagine the current government not-turning on any of the 36-to-43 matters compiled in those two lists.

The complaint would be that our government was stubborn and unbending.

But we have government that is prone to u-turning instead, and we still complain.

Do we want a government to be open to changing its position or not?

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But.

Even though there can often be a sensible case for particular u-turns (though not all of them), the sheer number of them creates problems.

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The first problem is that it encourages sloppy and shoddy policy-making and decision-making.

In essence: ministers will tend to put less care into policies and decisions if they know they can deftly u-turn later.

The more a policy or decision is thought-through before it is announced or implemented, the less likely there will need to be any reversal.

Many of the examples listed simply show weak policy-making and and casual decision-making.

Too many u-turns show a general lack of seriousness about policy and government.

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The second problem is that it weakens electoral politics and thereby undermines accountability.

Voters elected the current government on a manifesto that actually said the following:

‘We will proudly maintain our commitment to spend 0.7 per cent of GNI on development, and do more to help countries receiving aid become self-sufficient.’

‘On entering Government in 2010, the Conservatives acted decisively to protect the UK’s pensioners. The ‘triple lock’ we introduced has meant that those who have worked hard and put in for decades can be confident that the state will be there to support them when they need it. We will keep the triple lock…’

‘We promise not to raise the rates of […] National Insurance […].’

The current government has reneged on each of these explicit promises.

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Of course: manifestos are weak mandates and they are certainly not binding contracts.

No sensible person would have wanted, say, the government elected in 1987 on an express commitment to introduce the ‘community charge’ (poll tax) to have carried on with that plan, come what may.

And any government will want the flexibility to deal with new political problems.

Yet: each of the three manifesto commitments was broken with not much more than a political shrug – as if it would not really matter that such promises were broken.

The promises made in the manifesto simply did not matter.

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And the third problem is that it undermines political legitimacy and participation generally – and not just regarding manifesto commitments.

The announcements of decisions and policies of the government become no more than babble – mere noise in respect of which there is no point trying to engage.

A government constantly announcing and then dropping things will, over time, mean that few will pay attention when the government does carry through hard and bad decisions.

You will note that few of the u-turns are about the ongoing authoritarianism and callousness of the current government.

Most of the most unpleasant policies are continuing all the same.

But other than obsessives – like you reading a post like this – few will keep up with tracking what is going on.

And so a culture of constant u-turns adds to the general fatigue about policy and politics.

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So: u-turns may well be welcome in the particular, but they are worrisome on the current scale.

Perhaps the government should fundamentally change this ‘u-turn culture’ and point policy-making and decision-making in the opposite direction.

If only there were a term for such a reverse manoeuvre…

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The consequences of Boris Johnson as Prime Minister: lies and corruption and the undermining of the functions of the constitution

7th November 2021

Yesterday this blog averred that the lies and corruption of the current government are consequences of the failure of the opposition to politically counter the rise of the current prime minister and his supporters.

This is the sort of politics that one will get when not enough is done to counter the appeal of such cynical politics to knaves and fools.

And there is no practical purpose to exposing lies and corruption when the electorate do not care sufficiently about those lies and corruption.

(Though it is still a public good to expose this anyway – even just for the record.)

The difficult task now for those politically opposed to the prime minister is not so much to expose lies and corruption but to make the electorate care about the lies and corruption.

To make voters want to have a principled-based politics instead of a principle-free politics.

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Today’s post develops these points by looking at lies and corruption from a constitutionalist perspective.

An account of the constitution of the United Kingdom (and of other countries) will often cite fine-sounding phrases such as the rule of law, accountability, and checks and balances.

Invoking these phrases sometimes have a magic effect, making the person using the phrase and the person hearing or reading the phrase to both nod-along.

Almost more like incantations rather than descriptions of constitutional principle.

But what is perhaps lost in the use of such elevating concepts is, well, what they actually mean – and what is the purpose of having such concepts.

Here we must go from the rarified air of the study of the constitutional law professor to the grubby back streets of the politically expedient.

The rule of law is the means by which rule-breakers are kept from breaking rules.

Accountability means that the dishonest cannot mask their dishonesty or the corrupt hide their corruption.

And we have checks and balances to stop those who will misuse and abuse power from having the freedom to do so.

Each of these concepts deal with grim truths about political – and indeed human – nature.

But each of these concepts, in turn, rest on a deeper constitutional foundation – the most important quality of any constitution.

That is: legitimacy.

Without legitimacy any constitution is essentially worthless.

Literally: the essence of that constitution will have no worth.

If a constitution does not have legitimacy then those elements of the constitution that exist to limit and prevent the knavery and foolishness of those with political power lose their effect.

And the consequence of this is that the politically expedient no longer need to hide in the political backstreets, with the constant worry of discovery and disapproval.

They can instead parade their knavery and foolishness in the public glare.

And this will be a consequence if the current prime minister and his political and media supporters continue with their assault on institutions that uphold the rule of law, accountability, and checks and balances.

There will be nothing within the constitution to stop them, for too few will care.

So in this way the politics of Johnson are both a consequence of a political-media culture that allowed him to rise but also may be a cause of a fundamental structural weakening of the polity itself.

Brace, brace.

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Was yesterday’s power-grab against the standards committee an over-reach?

4th November 2021

When those with public power believe they can get away with anything they eventually are confronted with reality.

All power has its limits, even (supposed) absolute power.

The government’s move against the parliamentary standards committee was nothing over than mere gangsterism – as this blog averred yesterday.

There is no possible defence by regard to constitutional principle or general political theory.

It was not even to protect a particular member of parliament.

The particular case in question was a pretext for the executive to undermine an unwanted check and balance.

And it must have seemed such a good idea at the time.

But the morning after: there is a reversal.

The government has perhaps realised it has gone too far.

The opposition parties will boycott the new regime.

That was a foreseeable eventuality – which, of course, this government seems not to have foreseen,

The government is now affecting that any change should be on the basis of consensus.

But that was as true yesterday as it is true today – and so the lack of cross-party consensus does not explain the u-turn.

The government may have simply gone too far – and has not got away with it.

Not all checks and balances are formal constitutional devices.

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When this government does not like a rule which binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule

3rd November 2021

There is an extraordinary situation today in the house of commons.

Yes, yet another extraordinary situation – and although such situations are becoming commonplace, they should never be regarded as normal.

The government is instructing its backbenchers to vote down a suspension of a member of parliament who seriously breached lobbying rules.

The government is also seeking to re-write those rules.

As the deputy leader of the opposition rightly said at prime minister’s questions: “when they break the rules they just remake the rules”.

And this, of course, is part of a trend.

Here is one colleague at the Financial Times:

And another:

The overall trend is that if this government does not like a rule which (supposedly) binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule.

It is not so much ‘one rule for them, and another rule for us‘ but no rules for them.

And this at a time where the authoritarians in government seek to impose more and more rules on the public – especially those who its political and media supporters do not like.

At base this is not even about ideology.

There is nothing here so grand that can be articulated as any broad principle or general theory.

This is just akin to gangsterism.

Those under the protection of the centre – and those at the centre – should face no constraints on their autonomy.

While those on the outside of this protection, are under what ever obligations that centre believe should be imposed.

The problem for this being a driver of government in a democratic society is twofold.

First: not all governments exist forever, and there will be one point – eventually – where those on the inside will be on the outside.

And second: governments in a democracy ultimately require legitimacy – and doing ‘what works’ cynically can eventually have a counter reaction when the government needs broader support than whatever it can get away with.

So these antics may be clever, but they are not wise.

The public may not care now – and it may not ‘cut through’ – but sensible heads should steer the government away from this illiberal and misconceived approach.

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Budget special: the Fiscal State vs the Legal State

28th October 2021

Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.

The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.

The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.

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This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.

There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.

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It was not always like this, of course.

In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:

“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.

But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.

And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.

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As this doctrine of parliamentary supremacy took hold, there were voices of alarm.

In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.

All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.

This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.

And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.

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So how did we end up like this?

Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?

Mount’s review provides an interesting explanation.

The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.

Here Mount’s review starts with this wonderful anecdote:

“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”

Mount then explains why we did not take the liberal constitutionalist course we imposed on others:

“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]

“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’

“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.

“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.

“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”

(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)

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In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.

The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.

Translating finance bills in to acts of parliament is the thing.

And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.

Politicians and parties simply want the keys to this efficient fiscal-legal-political state.

And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.

*

But.

What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.

For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.

*

What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.

And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?

This is a difficult question.

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‘Parliamentary Sovereignty’ and ‘Parliamentary Supremacy’

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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