The legitimacy of parliamentary sovereignty has long been debated. Richard Gordon QC discusses the implications that a written constitution may have in solving the problems that parliamentary sovereignty creates. He claims that a constitution is more compatible with democracy and will be able to bridge the gap between the judiciary and politicians.
I had always been apolitical. Vaguely to the left of centre (though a little to the right of the Lib Dems) I had, at Oxford, found myself dining at Conservative clubs but only because I had Conservative (with a large “C”) friends. At the Bar my public law practice brought me into contact with left wing and right wing causes until it could fairly be said that my left hand did not know what my right was doing.
This is more or less still my position. But in 2009 I experienced what Thomas Kuhn calls a paradigm shift. The 2009 expenses crisis enraged me. As the Telegraph leaks became a torrent and the reputation of MPs and Peers (whether charged and convicted or not) sank deeper into the mire I found it harder to think of democracy in the same way.
Many years earlier I had felt what I now recognise to be a similar rage against Catholicism. I went to a Benedictine day school which featured recently in the news over child abuse by monks drunk on the unnaturalness of celibacy. Some of these were the same monks who had taught me about papal infallibility with such confidence. Once I learnt that this doctrine had only been invented in the late nineteenth century it took away, for me at least, all the gloss, the stardust, the sheer mystery claimed by my teachers to survive down the ages uniquely in Roman Catholicism.
So it is, I have discovered, with parliamentary sovereignty. Sovereignty, like infallibility, is a toxic mix because it asserts, with nothing more than litany to back it up, supreme and unquestionable authority. But, unlike the dogma of religion, the dogma of political power imprisons us all. We cannot escape from it and don a new faith. We are trapped in the false legitimacy of democratic consent.
The political catechism goes something like this:
- Q – Who made Parliament?
- A – The people.
- Q – And why did the people make Parliament?
- A – To rule over them in their best interests.
- Q – And can Parliament do wrong?
- A – No, Parliament is supreme because of the doctrine of parliamentary sovereignty. It can make and unmake any law it pleases.
In historic and democratic terms this is, with due deference to parliamentary sensibilities, a load of cobblers.
Historically, sovereignty lay with the Crown. That was based not on consent but, rather, on brute force. When, in turn, the barons wrested power from the Crown (a process that started in the thirteenth century but went on until our glorious revolution in 1688 and the Bill of Rights enacted the following year) that was also based on force, albeit force masquerading as constitutional progress.
In democratic terms, parliamentary sovereignty only makes sense in a fictive political universe. Parliament’s bible, Erskine May, may not be as readable as The Hitch Hiker’s Guide to the Galaxy, but its logic is equally zany. The self-evident truth, that no-one ever voted for parliamentary sovereignty, is the one absentee from its solid, dense and ostensibly authoritative pages that set out in comprehensive detail the internal procedures of parliament. But if that self-evident truth is reflected on and accepted, the whole edifice of parliamentary authority cannot be justified democratically.
The logic used to defend parliamentary sovereignty from its critics is that we, the people, get the chance under the rules of the democracy game at least once every five years to vote the scoundrels out. Yet these rules, the lynchpin of our modern constitutional arrangements, are only the current electoral framework devised by Parliament. They do not reflect any popular consensus as to the scope of Parliament’s authority. There never was a Magna Carta for the people; only for those a little lower down the power rung at the time than the King.
Does this matter? Well, yes it does. It matters, I suggest, for at least three reasons. Taken together, they go some way to explain my drafting a Constitution for popular endorsement. These are the main reasons that I wanted to trigger a debate.
First, a popular Constitution deriving its authority from the people is incompatible with parliamentary sovereignty but entirely compatible with democracy. If there were a codified Constitution the supreme authority would be the Constitution rather than, as at present, any single institutional “player”. Any other form of written document, even if called a Constitution, could, under the logic of parliamentary sovereignty, be repealed by a new law tomorrow. It could not be entrenched.
Secondly, and related to the first reason; the sheer audacity of the claims of parliamentary sovereignty make principled constitutional progress impossible. It is a truth universally acknowledged that those with vested power interests will not surrender power. All the power in our modern constitutional arrangements rests with the executive rather than with parliament. As Lord Hailsham observed in that graphic phrase all those years ago, we have not a democracy but an “elective dictatorship”. The result is that no principled constitutional change is likely unless it strengthens the hand of the government of the day. A codified Constitution would contain its own mechanisms for principled change.
Finally, there is evidence of a constitutional divide opening up between judges and politicians which is being fuelled by different conceptions of what parliamentary sovereignty entails. We saw it surface, first, in the recent judicial review challenge to the Parliament Act when two Law Lords observed that parliamentary sovereignty was created by the common law. Lord Bingham, the presiding senior Law Lord, criticised this view both in his judgement and in his subsequent brilliant book The Rule of Law, but it is the fact that such divisive views were voiced that should give pause for thought. For if sovereignty was created by the judges then it can as easily be taken away.
For their part, MPs are becoming increasingly critical of the judges. For example, it was illuminating for me to read through the questions to witnesses posed by the recently constituted Joint Select Committee on Parliamentary Privilege to see how potentially wary parliamentarians are of judicial interference in the affairs of Parliament. The hostility comes from the, this time entrenched, belief that parliament is sovereign and that it is not for unelected judges to frustrate its will.
I do not pretend that a codified Constitution would solve all tensions of this kind but by subordinating the power of our governmental institutions to a higher authority – that of the Constitution – it would, I believe, strengthen the sometimes fragile consensus that props up our informal constitution. A codified Constitution would play its part in preventing that fragile consensus from being shot to pieces.
Richard Gordon is widely recognised as one of the leading silks in Administrative and Public Law, Constitutional Law and Human Rights/Civil Liberties. Increasingly, too, he is recommended in judicial review for EU and Competition Law cases. He is a Visiting Professor at University College London and Honorary Professor at the University of Hong Kong. He is the author of “Repairing British Politics: A Blueprint for Constitutional Change” which presents key arguments for constitutional reform focused around a draft written Constitution underpinned by a new principle of constitutional supremacy.