A former First Minister of Wales has questioned whether the UK parliament is really sovereign.
Carwyn Jones, who is a Professor in the Department of Law and Criminology at Aberystwyth University, argued on the blog of the United Kingdom Constitutional Law Association (UKCLA), that the principle of parliamentary sovereignty does not have the “status of settled law.”
The Senedd member for Bridgend says that it is merely a “convention” which the courts could decide to ignore if they wished, and its absolute nature is an issue that “still rests tantalisingly unsettled.”
He said: “The fact that a concept it mentioned in statute does not make it justiciable. For example, s.2 of the Scotland Act 2016 and s.2 of the Wales Act 2017 both make the Sewel Convention part of the law, but that convention can be ignored by the UK government whenever it sees fit.
“The executive, legislature and the courts have accepted the principle in the main (at least outside Scotland). There are those who would argue that this gives the principle the status of settled law. I disagree.
“It seems to me that parliamentary sovereignty, like so much else in our constitution, is a convention. If the courts decided that they no longer wished to respect it in its entirety or at all, there would be no barrier to them in doing so.
“There is no legal barrier that is so absolute that forbids the courts from reviewing any Act of Parliament beyond a convention respected by judges over the last two centuries.
“There is no legislation that declares that the UK Parliament can do as it sees fit without scrutiny from the courts and we have seen, from the obiter comments in Jackson, that there is scope for such scrutiny in the future.
“The question is whether we are content to continue with a constitution that, at its heart simply declares that there is a Parliament at Westminster that can pass whatever law it wishes, even abolishing the common law and the courts if it so chose or a written constitution.”
According to Mr Jones, our concept of parliamentary sovereignty is based largely on the views of one man, A.V Dicey, who expressed his views in the Introduction to the Study of the Law of the Constitution (1885).
The former First Minister says this “looks more like political graffiti rather than an attempt to clarify the law.”
He adds: “Before we look at those words, it’s worth reflecting that Dicey was a product of his age and the Victorian Empire that infused it.
“He was a vehement opponent of Irish home rule in any form (see England’s Case Against Irish Home Rule (1886). He further maintained that the Imperial Parliament could do anything from taxing the colonies to abolishing the structure of the Church of Scotland.
“He would have struggled with the Statute of Westminster 1931 which recognised the self-government of (white) dominions.
“It only took a few years before MPs were gleefully referring to this concept. After all, why not support a concept that gave you untrammelled power?
“How ironic then that the legislature, tasked with passing laws, embraced the concept that it could do as it pleased, thus making itself lawless.”
Mr Jones argues that this concept of parliamentary sovereignty would breach the conditions in the Treaty of Union that were agreed when Scotland signed.
He said: “The Scottish courts seem however to take a different view.”
He quoted the judgement of Lord Cooper of Culross, the Lord President in the case of McCormick v Lord Advocate (1953 SC 396).
The judgement says: “The principle of unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law.
“The Lord Advocate conceded that the Parliament of the United Kingdom could not repeal or alter certain fundamental and essential conditions of the Act of Union.”
Mr Jones said: “What’s clear from these words is that the court did not accept the Diceyan view of the constitution, and more, importantly, neither did the UK government’s own Scottish Law Officer.
“The UK Parliament can either do as it sees fit, in which case it is sovereign, or there are restrictions on it regarding Scotland, in which case, it is not.
“At the very least, in not expressly ruling out any challenge to parliamentary sovereignty the Court has left it open for a future Court to consider.
“The issue has not been dealt with substantively since but, it would seem to me, that if a senior Scottish judge could express those views in the days when Scottish nationalism was politically weak, it would be unlikely that a court would take a different view in the present time.”
He also quotes Lady Hale in case of Jackson v Her Majesty’s Attorney General, who seems to suggest that the courts can rejects attempts to “subvert the rule of law”, and this means that parliamentary sovereignty is not absolute.
She said: “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing government action affecting the rights of the individual from all judicial scrutiny.”
Mr Jones adds: “Again, Lady Hale seems to reserve to the courts the ability to guard the rule of law even against a Parliament that seeks to subvert it.
“That is not consistent with parliamentary sovereignty as the UK Parliament, acting on that principle, would be able to abolish judicial review, the courts or even the rule of law if it wished to. That is the logical conclusion of accepting parliamentary sovereignty.”