Parliamentary Sovereignty ~ legal rule or assumption ~ either way it is unsatisfactory

There has been considerable debate about the government's "Rwanda Bill" - Safety of Rwanda (Asylum and Immigration) Draft Bill - GOV.UK (www.gov.uk). In particular, there is discussion within legal circles about whether the courts could somehow "disapply" this if it were to actually become an Act of Parliament (i.e. pass both Houses of Parliament and receive Royal Assent).

The legal discussion has arisen because of a letter published by the Daily Telegraph - Back the Rwanda Bill or risk the sovereignty of Parliament, say KCs (telegraph.co.uk) - in which former Attorney-General Sir Geoffrey Cox KC and three other leading barristers comment that - "[T]he assumption that Parliament is entirely sovereign is only that — an assumption, which the courts have long indicated could be revisited in the event that Parliament did the unthinkable."

The word "assumption" certainly caused constitutional lawyers to go to their keyboards

and mobile phones. Is "Parliamentary Sovereignty" just an assumption?

The "assumption that Parliament is entirely sovereign" refers, of course, to the traditional (at least English) doctrine that there are no legal restraints on Parliament's legislative power. According to this view, Parliament is competent to legislate on any subject-matter AND, when it has done so, no court or other body may decide on the validity of the legislation.

This blog has touched on the topic of "parliamentary sovereignty" before. In a post of 11 October 2019 it was noted that, in Miller v Prime Minister [2019] UKSC 41 (the prorogation case), the Supreme Court referred (para 41) to "Two fundamental principles of our constitutional law .. First, the principle of Parliamentary sovereignty. Secondly, Parliamentary accountability." 

In a second post of 18 August 2021, I commented that - "The law textbooks and legal commentaries contain many pages and much detail about [Parliamentary Sovereignty]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."

The Rwanda Bill purports to do highly contentious things including reversing a key factual finding of the courts that Rwanda is not, at present, a safe country to which to send asylum seekers. A possible objection  to this lies in the judicial oath - to administer justice according to the laws and usages of the Realm. Isn't it a requirement of this oath that cases be decided on a proper factual basis as determined by the judges having heard argument placed before the court?

Professor Mark Elliott has provided two posts about the Rwanda Bill. They are on his "Public Law for Everyone" blog and I recommend a full reading. Professor Elliott notes that some senior judges have asserted that, perhaps in extreme cases, the courts could reject a statute as unconstitutional. (There are also contrary views).

The Rwanda Bill and its constitutional implications – Public Law for Everyone

Could the Supreme Court reject the Rwanda Bill as unconstitutional? – Public Law for Everyone  

Elliott does not reject the idea that the courts could find legislation to be "unconstitutional". He argues that we cannot be confident that a court would never do this and it would not necessarily be unconstitutional if they did so.

The courts have from time-to-time referred to important constitutional principles. I have already noted above the prorogation case. 

The Unison case 2017 (here) was concerned with secondary legislation ("the Fees Order") but the Supreme Court held that the Order was unlawful. The court noted a constitutional right of access to the courts inherent in the rule of law. The Order was unlawful because it effectively prevented such access. 

On the one hand, if Parliamentary Sovereignty is to be seen as a rule of law (maybe "the constitutional fundamental") then it is an unsatisfactory rule because it permits unfettered potential for Parliament to introduce oppressive and undemocratic legislation. In short, to wreak injustice.

If, on the other hand, Parliamentary Sovereignty is to be seen as an "assumption" then the obvious question arises as to what limits exist. I am not aware of some "list" of "no go areas" applicable to Parliament. Even if Angels fear to tread, is is not clear that Parliament may not ! 

Notes:

Parliamentary Sovereignty was the subject of an obiter dictum by Lord Cooper in McCormick v Lord Advocate [1953] ScotCS CSIH_2 (30 July 1953) (bailii.org). - "The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done."

In Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005) (bailii.org), Lord Steyn famously commented (obiter) at para 102 - " .... The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism ...."

Safety of Rwanda Bill - Preliminary Rule of Law Analysis (biicl.org)

A novel and contentious policy - by Joshua Rozenberg (substack.com)