A Trust of Sovereignty

How can government be held to account when democratic processes are inadequate and Parliament is above the law?

The terms ‘parliamentary supremacy’ and ‘parliamentary sovereignty’ are used interchangeably to refer to a doctrine which is widely regarded as one of the central pillars of Britain’s constitution; namely, that whatever the Crown-in-Parliament enacts is law – and must be enforced by the courts even if it is clearly contrary to reason, good faith or the wishes of the public. However, this understanding of the doctrine overlooks some important features of its origins and underestimates the range of options open to the courts.

From a modern perspective, the doctrine seems to be little more than an arbitrary convention, which rests primarily on the courts’ need to recognise some body as the ultimate decision-making authority. Exploring academic and judicial debate on its origins (in his book, The Rule of Law) Lord Bingham concludes “… the principle of parliamentary sovereignty has been recognised as fundamental in this country […] because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system”.

During the centuries in which it emerged, though, the doctrine rested on solid foundations of practical politics entrenched within the cultural landscape of the times – a landscape that has since been transformed. As Lord Bingham pointed out, at the time when parliamentary supremacy crystallised as a core feature of British governance, Parliament consisted of three ‘estates’ – Crown, Lords and Commons – which were all independently powerful and could be expected to hold each other in check. Now, the Commons is supreme and the other two are essentially powerless.

Underlying Principles

Obviously, the concept of parliamentary supremacy cannot be properly understood without a clear understanding of what is meant by ‘parliament’. Generally it seems to be taken for granted that it simply means ‘that institution which has exercised legislative authority in Britain for the last several centuries’. But is that interpretation consistent with the principles which led to the doctrine becoming central to our constitution?

The original structure, of three independently powerful estates, was not the product of a set of arbitrary rules; the power of the Crown and the Lords reflected a fundamental reality. On the one hand, the Monarch, ruling ‘by the Grace of God’, constituted a temporal manifestation of spiritual authority, at a time when deeply-held belief in God was widespread. On the other hand, members of the Lords were independently powerful because they were local rulers. In effect, Parliament was the place where different vectors of power converged. From this perspective, respect for higher law and the concept of different levels of sovereignty can be regarded as intrinsic aspects of the doctrine of parliamentary supremacy.

On the face of it, the different vectors of power that made Parliament supreme appear to have very different sources, two of which have little relevance in a largely secular democratic society. If we step back and look at them in a broader context, however, they can be seen as different strands of public consent. The Crown’s power can be understood as a reflection of public belief in God – of the public’s aspiration to live in accordance with God’s will – rather than a supernatural endowment coming direct from God¹. The power of the Lords as local rulers can be understood as a product of their relationship with the people who lived under their rule and (originally at least) had the power to overthrow them.

From a modern perspective, if we recognise the Crown as the embodiment of our collective commitment to higher principles and the Lords as the representatives of local authority, we can see that those two estates of Parliament represented different aspects of the public will – aspects which are distinct from what was represented by the House of Commons.

As individuals, most of us recognise a moral framework that we believe should constrain our behaviour (the domain of the Crown). Similarly, we all have ideas around collective identity and how society should operate as a whole (the domain of national government). And we have beliefs and wishes about how it should operate in relation to ourselves personally (the domain of local government). There is a dynamic tension between these three strands of our individual wills – which are often in conflict with each other – and this dynamic tension is also present at the collective level. In a healthy governance system all three of those strands need to be separately represented. However, the cultural changes that have happened in recent centuries mean that all three are now tangled together in the Commons, while the presence of the Crown and the Lords in Parliament is seen by many as an affront to democratic principles.

Sovereignty and Institutional Flaws

The fundamental difference between the Commons and the other two estates of Parliament was, of course, the fact that, from very early on, members of the Commons were chosen by the communities they represented. This meant that, once general-purpose standing Parliaments became normal, there was a recognised constitutional mechanism for the public to withdraw consent from its individual representatives in the Commons and transfer it to someone else. The lack of a comparable mechanism for the other two estates led to the Commons becoming dominant. However, the other strands of public consent are still highly relevant today and the failure of our current political settlement to allow them adequate representation is a serious flaw.

This brings us to a crucial point: the supremacy of past Parliaments was not invalidated by the imperfections of their mandate, but it was undoubtedly inferior to the supremacy exercised by later Parliaments, which more truly represented the will of the people. From that, we can infer that ultimate sovereignty does not reside in Parliament as it is constituted at any particular point in time, but in an ideal Parliament which, if it could be realised, would be be the true voice of the people. Every substantive Parliament is an imperfect expression of the ideal Parliament (which will probably always be beyond our reach) and, as such, is no more than a trustee for the ultimate sovereign.

So, what might this imply for the relationship between the courts and Parliament?

Judicial Authority

The judiciary have recognised for many years that the UK’s constitution is incoherent and that many laws are fundamentally unjust. However, they also recognise that they themselves have no democratic mandate and they adhere to the principle, established centuries ago, that the courts must be subordinate to some higher authority.

As long as a substantive Parliament can legitimately be regarded as the best possible approximation to the ideal Parliament, the courts have no option but to accept its authority. They must uphold its laws, even when they consider them to violate natural justice or believe them to be contrary to what the public really wants. However, in certain circumstances, the courts might have another option: it might be legitimate for them to rule, on the presumed authority of a superior Parliament, that the substantive Parliament had breached its duties as a trustee.

A Superior Parliament

So, what might constitute a superior Parliament? There are clearly many different ways in which a Parliament can be structured, and many different processes by which its members can be elected or appointed. Who is to decide which of many possible manifestations of Parliament is the truer expression of the public will?

Obviously, it can’t be the courts, who have no independent mandate from the public. It is surely no more appropriate, though, for it to be a standing Parliament. MPs are generally elected to represent the public across the broad range of non-specific issues that might be expected to arise in the course of everyday governance, and the public’s wishes on constitutional matters play a tiny role in their decisions on who to vote for. For members of a general-purpose Parliament to determine, themselves, the rules governing the institutional framework in which they operate, and the electoral processes which put power in their hands, is a glaring conflict of interests. It would be truly absurd if the courts were unable to recognise a higher sovereign body.

Fortunately, that does not present much of a problem: everything else being equal, an ad hoc Parliament elected today to legislate solely on laws of sovereignty will undoubtedly be a truer expression of the public’s will, in that specific matter, than a general purpose Parliament elected yesterday. If the UK’s Supreme Court feels that Parliament has acted outside the bounds of its authority, or without the care and attention that the public can reasonably expect, it is entirely legitimate for it to rule accordingly and ask His Majesty to convene a special Parliament to confirm, modify or reject their judgment.

That’s obviously not a step to be taken lightly and a mature society would have clear rules governing when it might happen. For example, I would suggest that this option should only be available when there are both clear grounds for believing that Parliament does not properly represent the public, and clearly identifiable reforms which can reasonably be expected to significantly improve representation. A specially-convened Parliament cannot be presented with a problem and asked to come up with a solution that may not, in fact, be possible. Nor should the courts be free to dispute the ordinary Parliament’s exercise of supremacy, however convinced they may be that some parliamentary act violates their duty to the public, if they cannot envisage a superior Parliament they believe would not have been guilty of that misfeasance.

For now, though, Britain’s constitution is a work in progress and its further development still depends on its boundaries being stretched as the need arises – but stretching its boundaries in times of crisis is surely as much a part of Britain’s constitutional tradition as parliamentary supremacy itself.

This paper was originally published on my Wordpress site in November 2020.

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1. When I say that the Crown’s power can be understood as a reflection of public belief in God rather than a supernatural endowment coming direct from God, I do not mean of course that it must be understood that way. The phrase ‘by the Grace of God’ in the King’s title has constitutional implications that I intend to explore in a later post.