Law and Lawyers: UK constitutional arrangements - the legislative power of Parliament

Wednesday, 18 August 2021

UK constitutional arrangements - the legislative power of Parliament

Parliament is the UK's supreme legal authority. Parliament's website sets out the principle -

"Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK which can create or end any law ....."

There are good grounds to question the legal basis for the "often accepted without question" Diceyan view of parliamentary sovereignty but, for the purposes of this post, let us adopt the stance that parliament has legislative supremacy. [See this article on the Constitutional Law Group blog].

The word "sovereignty" has different meanings - (discussed at Watching the Law October 2020). The term "Parliamentary Sovereignty" refers to the point that Parliament has legislative supremacy - that is, the power to make any law whatever. Further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.

The law textbooks

and legal commentaries contain many pages and much detail about this but just think about it. Parliament may legally do whatever it wishes. Isn't this the first rule that autocratic politicians would invent to assist them in building State power?

The rule is a form of double-edged sword. On the one hand it enables Parliament to respond to any new crisis or other developments. Parliament is also free to change the law when change appears to be required or needed. On the other hand, the rule is capable of assisting politicians to make highly contentious alterations to the law.

Every government is subjected to various practical and political constraints but if a government commands a sizeable House of Commons majority then it is usually able to secure the legislation it desires. For example, the present government is pushing forward with controversial changes to judicial review, to the law on public order and, depending on the outcome of a review chaired by Sir Peter Gross, it is possible that the Human Rights Act 1998 will come within the sights of the government. The government also wishes to prevent legal challenge to any Prime Ministerial decisions regarding the dissolution and calling of Parliament.

Self-restraint on the part of the government also plays a part in controlling the use of the supremacy rule but the degree of self-restraint exercised inevitably depends on the character of those individuals who form the government. As Andrew Blick and Peter Hennessy argue - Constitution Society: Good Chaps no more? - a key characteristic of the British constitution is the degree to which the good governance of the UK relies on the self-restraint of those who carry it out.

The supremacy rule has been accepted for a long time but it is worth asking whether constraints could be imposed on it.

The rule itself appears to limit the possibility of legal constraints. Suppose that one Parliament enacted a law to state that changes to the Human Rights Act 1998 could not be made. A general election is held and a new Parliament comes into being. The new Parliament could simply repeal the law made by its predecessor but, of course, need not do so.

This leads some to argue for a formal constitution which could contain provisions placing limits on what Parliament could do. I will consider that in a further post.

Another idea might be that a set of "Constitutional Values" is created to which politicians conform unless a temporary departure from a value is justified for some good reason - e.g. a national emergency.

Without seeking to draw up a comprehensive list, constitutional values might include commitment to matters such as -

elections conducted according to internationally recognised democratic standards,
the European Convention on Human Rights and other international agreements to which the UK is a signatory,
adherence to the rule of law,
an independent judiciary and legal system,
devolution to Scotland, Wales and Northern Ireland
non-discrimination in the application of law and provision of services ... etc.

Whether the UK will seek to tame the supremacy rule in some way is debatable but, whether it does so or not, it is important to recognise that the rule is potentially a constitutional rogue if the "good guys" no longer have control.

Links:

Democracy -

https://www.osce.org/odihr/elections/66040

https://www.ohchr.org/EN/Issues/Democracy/Pages/InternationalStandards.aspx

European Convention on Human Rights / Council of Europe -

Council of Europe

The Convention and Protocols

Parliament - Joint Committee on Human Rights - 8 July 2021 report on Review of Human Rights Act

The Guardian 22 July 2021 - More than 220 groups criticise UK review of Human Rights Act

Rule of Law -

Law and Lawyers: The concept of Rule of Law (obiterj.blogspot.com)

Law and Lawyers: Lord Bingham of Cornhill KG (obiterj.blogspot.com)