Still life in the mace and crown

The Law, Politics and the Constitution - The Sovereignty of Parliament
February 11, 2000

Tony Blair's government has projected the question of constitutional reform, and thereby the subject of the constitution, to centre-stage in its administration. A subject that was too sacred to be tinkered with by politicians, too opaque to be understood by the vast majority of citizens and too un-legal to be of much concern to lawyers and courts now finds itself exposed to all forms of major change, the effect of which we can largely only guess at. Both of these books are centrally concerned with features of the British constitution, one being an examination of the history and philosophy of parliamentary sovereignty - our theory of the state - the other being a Festschrift to Geoffrey Marshall, a shrewd observer of the constitution and constitutional law for more than 40 years.

Jeffrey Goldsworthy's work ("primarily for lawyers" but it deserves a wider readership) sets out to establish that the doctrine of legislative omnicompetence - although parliamentary sovereignty has a wider meaning - has been subject to erroneous criticism. The criticism states that as the doctrine is a creature of the common law it is thereby in some sense judicially created and is subject to judicial amendment. The judges control the agenda. No judge has explicitly said as much, but a new strain of adventure and a willingness to present themselves as lions in their own right and not simply as lions under the crown or mace is evident. The Human Rights Act will encourage this sense of judicial mission. Furthermore, no specific ratio or judicial authority supports Parliament's power to alter a "truly fundamental constitutional principle" or to enact a barbarous law. The theory has not been subjected to the ultimate test and must be obiter dicta ; persuasive but not binding.

Further subjects of attack include the belief that the doctrine was the product of the 18th and 19th centuries (the Whig interpretation of history). Additionally, a decisive influence on sovereignty came with the philosophy of Hobbes, whereby a single institution comprising the crown and the three estates of the realm - on page 106 the crown is described as one of the estates - assumed a sovereignty previously enjoyed by a "common law constitution" where the common law could control acts of Parliament. It is Goldsworthy's belief that the doctrine goes way back to the clanking of medieval chains.

Six chapters document the historical development of the doctrine and the making of sovereign laws by the king in Parliament - and whether this means the "king, in Parliament" signifying that the king simply happens to make his sovereign laws in Parliament, or the "king-in-Parliament" signifying that a partnership between the crown and the people's representatives is essential to make sovereign laws? Altering the succession through act of Parliament, the acts of supremacy, proclamations and their repeal are essential ingredients in the formulation of the legal doctrine.

Goldsworthy's use of secondary sources and his scholarship are admirable. The style may be allusive, but it is nonetheless very readable and his arguments in the chapter dedicated to the philosophical foundations of the doctrine are clearly written and accessible. He criticises the supporters of judicial supremacy because they fail to give any, or any proper, weight to the view that it is not only the judges who have internalised the rule of parliamentary sovereignty and how that rule may be subject to development of principle and change in different social and political contexts and how they may apply it differently. The rule is also internalised in the legislature, the executive and among senior officials, and their perception may not be so disposed to change as that of the judicial branch. For the judges to move alone would be catastrophic.

Additionally, why should we believe they are equipped experientially or intellectually to assume the role of Hercules?

The author deliberately completes his historical analysis in the 19th century with only fleeting reference to the European Community and more recent events. I suppose the argument would run that parliamentary sovereignty is still the bedrock of the constitution and nothing, not even Community membership, is beyond change. What is missing is an account of why the new spirit of adventure among the English judiciary has come from our membership of the Community and the increasing inter-penetration of Community law, itself inspired by continental systems, UK lawyers - and here I think the influence of academic lawyers has been crucial - have begun to think of horizons beyond their shores where sovereignty has to address international and global realities. And yet within the Community, our constitution is the least disturbed by the adoption of Community legal norms - largely as a result of the doctrine of parliamentary sovereignty. There is life in the old dog yet.

The Festschrift for Marshall contains essays that address the tensions confronting the challenge to the constitution. Neville Johnson discusses the traditional legitimising role of convention in our constitution and how this is being replaced by increasing juridicalisation of constitutional affairs. Are the university law schools able to prepare lawyers for this revolution given their domination by private-law thinking - Dicey's third component of the rule of law?

Dawn Oliver and Diana Woodhouse examine ministerial accountability and responsibility. Robert Blake sketches the role of a constitutional monarchy in the UK today. Kenneth Morgan traces the ascendancy of prime ministerial style, concentrating on Tony Blair. Philip Norton assesses the power of parliamentary procedure to act as a check on executive and other excesses - an illustration of the wider significance of sovereignty referred to above. Vernon Bogdanor assesses devolution and the British constitution, noting the desideratum that there should be equality of rights within the unitary state. Benefits and burdens should depend upon need not geography; university students take note. John Griffith asks the perennial question of why in this brave new world we should trust the judges. Other essays deal with the interface of elections, litigation and legislation (David Butler), judicial interpretation of statutes and legislative history (Robert Summers), the ombudsman (William Reid) and police accountability (David Williams). Gavin Drewry regrets that while public lawyers have happily taken on board the lessons of politics and political science, political scientists have maintained a chill distance from law.

As a political scientist, Marshall made a lifelong study of constitutional law, and his insights helped generate the interest of succeeding generations of public lawyers. This is a very fitting tribute to his work by distinguished authors, and it should be read by lawyers and political scientists without prejudice.

Patrick Birkinshaw is professor of law, University of Hull.

The Law, Politics and the Constitution: Essays in Honour of Geoffrey Marshall

Editor - David Butler, Vernon Bogdanor and Robert Summers
ISBN - 0 19 8295855
Publisher - Oxford University Press
Price - £48.00
Pages - 331

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