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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.
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