During the recent debates on the European Union bill currently before Parliament, Bill Cash MP moved an amendment to the bill (Amendment 41) re-asserting the sovereignty of the United Kingdom Parliament, admirable in its simplicity and in complete accord with the Conservative Party’s election manifesto. Foreign Office lawyers spread the canard, absurdly, that the amendment would open the doors to judicial interference by adding this important principle to the statute books for the first time. But the principle should be a simple and obvious one: the Crown-in-Parliament is supreme.
A. V. Dicey
This centrality of parliamentary supremacy to the British constitution cannot be overemphasised. The Victorian constitutional scholar A. V. Dicey wrote that Parliament – that is the Queen, the Lords, and the Commons together – has “the right to make or unmake any law whatsoever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” This remains true to this day, and that Amendment 41 was found so objectionable as to be defeated by the votes of over three hundred MPs is both surprising and telling.
The only alternative to parliamentary supremacy is a system of judicial review whereby laws passed by the elected representatives of the people are overturned by unelected judges. We already suffer from a version of this system thanks to the partial supremacy of European Union law, but still that situation exists only because of parliamentary legislation which any future parliament is freely capable of repealing.
The very real danger is that the sovereignty of parliament is being eroded, not through a decision-making process open to public scrutiny, but instead through the incremental agreement of judges, academics, lawyers, and activists. These figures seek to slowly acclimatise the important institutions of law and the state to the disappearance of parliamentary supremacy and its replacement by judicial review.
Already, Lord Hope – as Deputy President of the Supreme Court not a disinterested party – has stated that “parliamentary sovereignty is no longer… absolute” and that “step by step” is is “being qualified.”
This “qualification” process must be exposed to public scrutiny so that the people of Britain do not awake one day to find the democratic system by which they hold their government to account has been completely eroded away.