The sovereignty of parliament in the UK needs no new law[s]. The UK parliament is supreme as it is.
It’s just pollies since Maastricht who have pretended it’s not and so all this treaty and proposed law guff. The attempt by the EU was to get enough precedent of pollies signing over the country that they could use those when it came to international law. But there is equally precedent in laws before that. To the point where it’s neither here nor there – it’s just down to our political will.
Is there not something curious about the construction of Lord Steyn’s argument? He cites three respects in which, in his view, the sovereignty of Parliament is now limited. These are: the United Kingdom’s membership of the European Union, the devolution “settlement” of 1998, and the incorporation by the Human Rights Act of fundamental rights into domestic law. Each of these, it is to be observed, came about as a result of legislation.
Yet from this starting point his Lordship goes on to state that the sovereignty of Parliament is a “construct of the common law”, “created” by judges and alterable by them. Even if this is correct (and I submit below that it is incorrect) the conclusion does not follow from the evidence his Lordship cites. The changes he outlines were made through legislation by Parliament; not through common law adjudication by judges.
30. Lord Bingham, in his 2007 Commemoration Lecture delivered at King’s College London, to my mind correctly stated that it has been ‘convincingly shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.’
32. The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact than in the common law.
33. European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty.
One commenter at Breitbart said that this Freeman of the Realm stuff doesn’t cut it any more, quoting Magna Carta and all that.
In one sense true and to back that up, another commenter wrote, on Magna Carta:
Question 1: What has Magna Carta done for me?
Quite simple – it’s because of Magna Carta that we live in a free country today. Magna Carta affirmed the vital principle of freedom under the law. Clause 39 of the Charter said: ‘no free man shall be imprisoned or deprived of his lands except by judgement of his peers or by the law of the land’. Clause 40 said:
‘To no one shall we sell, delay or deny right or justice’. Before the making of Magna Carta the king had been able to do pretty well whatever he liked – and did. After the making of the Charter he was subject to the law like everyone else.
In the mid thirteenth century, the lawyer Henry Bracton was to write, ‘in England the king is below God and below the law’.
Question 2: How much of Magna Carta is still in the statute book?
Very little, in fact. To be precise, just four clauses of the original 1215 version of the Charter.
These are: clause 1, guaranteeing the liberties of the Church; clause 13, guaranteeing the liberties of the City of London; and the famous clauses 39 and 40, guaranteeing due legal process.
These represent clauses 1, 9 and 29 of the definitive reissue of the Charter in a slimmed down version by King Henry III in 1225.
All the rest of the Charter has been repealed in stages over the centuries, most especially in the nineteenth century, a period which saw the repeal of a great deal of obsolete medieval legislation.
Does that mean that the Charter no longer matters? Most definitely not. All great documents are the product of specific historical circumstances and lose their immediate relevance over time.
But that does not mean that they can be forgotten or consigned to the historical waste paper bin. Magna Carta, although overtaken by events even in the medieval period, acquired huge symbolic significance, and it is its symbolic power as a touchstone of liberty which has guaranteed its continuing fame and importance over the centuries.
Butit’s clear to me that the commenter had not read that document:
… because contained in there is the legal opinion that in fact, the “Freeman stuff” is not an historical curiosity in the least – it is a legal argument for today.
Does a vote for Leave alter the situation?
From the parliamentary paper:
Although Factortame … undoubtedly demonstrate[s] what may be described as a devolution of legislative power to Europe, it is no true devolution of sovereignty. In legal (though certainly not political) terms, the organs of European legislation may in truth be described, for so long as the Act of 1972 remains on the statute book, as Parliament’s delegates; the law of Europe is not a higher-order law, because the limits which for the time being it sets to the power of Parliament are at the grace of Parliament itself.
16. Professor Allan’s challenge to Wade is slightly different. He attacks the jurisprudential basis of Wade’s account of sovereignty. For Wade, the sovereignty of Parliament is ultimately a judicially recognised “political fact”.
And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly. So, for Wade, what the House of Lords recognised in Factortame (No 2) was that the political fact of sovereignty had changed – Parliament since 1972 legislates not in the splendid isolation of a supreme being but in a geo-political environment in which the United Kingdom is a loyal member of the European Union.
Allan disputes this analysis on the basis that sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law.
So, in a nutshell, yes, should we depart the EU, then all bets are off with sovereignty according to current arguments – Wade, Allan etc.
But should we not leave, this places us in a very grey area with arguments on both sides – one saying EU law then takes precedence and the other still saying no, it never could.
As the case for eternal UK parliamentary sovereignty relies on precedent and this referendum result is one of the precedents, then this does strengthen the EU’s counter argument, should the people vote Remain.
However, what is also the case is that the EU makes its claim on ultimate sovereignty, should there be a clash, the Lords concur, the judicial commentators then interpret it as Steyn did and Cameron now views it in this way. However, nowhere in this does anyone see that this simply cannot be under the weight of historical precedent which must take into account how sovereignty has previously been seen.
Which means that any statute brought in by parliament, asserting sovereignty for the nation and its parliament ends any arguments brought by anyone – Steyn, the EU, anyone, even Cameron.
It makes it a hell of a lot easier though if we vote out.
Just as an aside, there was a particularly shoddy article at the Telegraph, stating they were examining the claims and discovering “the facts”. Significant was that there were no comments allowed on the article, no chance to correct the lies at the site. That was, as just mentioned, shoddy and that is the Remain approach – shoddy.