Dicey, Parliamentary Sovereignty and the Rule of Law

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This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 83-105 (Chapter 2, section 4 to the end of 4(c)).

Parliamentary Sovereignty

[1]The concept of Parliamentary Sovereignty broadly means that Parliament has the right to make or unmake any law, and no person is allowed to override or set aside the law of Parliament.

  • Acts of Parliament override the law of the judges.
  • There are two limits to Parliamentary Sovereignty:
    • External: the people may disobey or resist the laws of Parliament
    • Internal: limitations arising from the moral feelings of those who sit in Parliament (i.e. members of our Parliament wouldn’t legislate laws against a specific race today because the members themselves consider it morally wrong)

These ideas were set forth by AV Dicey. It has been said[2] that Dicey’s concept lacks support from precedents, and is inherently fallacious because the nature of ‘sovereign’ power is contrary to the idea of the Parliament.

Support of Parliamentary Sovereignty

[3]

  • There must be a single, ultimate and unlimited law making power.
  • Because it is representative, Parliament’s decisions are a reflection of the collective wisdom on the community. This makes it the preferable ultimate authority.
  • Parliament is also the highest court in the land, where no appeal is possible.
  • If its authority was limited and not sovereign, Parliament would not be able to take extraordinary measures in cases of emergency.
  • The system of checks and balances of the Parliament is the best safeguard against tyranny.
  • Judges could not be trusted with the authority to strike down Parliament legislation.
  • Parliamentary tyranny is thus highly unlikely, and it is the best agency to serve as the ultimate, sovereign authority.

Critique of Parliamentary Sovereignty

[4]

  • Parliament is two groups of people, which need to face re-election every couple of years if they want to stay. This means they can’t really make whatever law they like, because if the population dislikes it, they would not be voted again. This is not the ‘supreme power over citizens and subjects unrestrained by law’ which is Sovereign Power.
  • Rather, the power in this case is separated into ‘legal sovereignty’ and ‘political sovereignty’.
    • Legal sovereignty: legal ability to make laws without restriction.
    • Political sovereignty: the body whose will is obeyed by the citizens.
  • Thus, Parliament enjoys legal sovereignty. The electors (the people) ultimately enjoy political sovereignty.
  • However, ‘legal sovereignty’ isn’t sovereignty at all – it is a legal concept which expresses that the courts will recognise laws made by Parliament.

The limits of Parliamentary Sovereignty

[5]

  • The concept of Parliamentary Sovereignty is not of limitless power.
  • Judicial obedience to statutes doesn’t only reflect the authority of the Parliament; it also reflects the judicial understanding of what political morality demands.
  • The courts will not recognise the laws of Parliament which threatens “the essential elements of any plausible conception of democratic government.[6]
  • Thus, legal authority of a statute is derived from its compatibility with contemporary political morality, which constitutes the rule of law.
  • The rule of law seeks to protect the individual’s rights, and to protect him from arbitrary power.
  • If Parliament ceased to be an effective representative assembly, the courts would resist its laws.

In Australia, Parliamentary Sovereignty is to be understood as operating within the limits imposed by the Constitution. Notice that the Constitution can ultimately be changed by Parliament (admittedly, through a complex procedure) and Parliament can also overrule court decisions.

The rule of law

The Rule of Law aims to prevent the exercise of arbitrary or tyrannical power. It became popularised by AV Dicey, who described it through three main tenets[7] :

  1. A man can only be punished if it was proved in court that he breached a law.
    • This means that the Sovereign cannot punish people arbitrarily.
  2. No man is above the law, and everyone is equal before the law.
    • This means that the law applies to everyone in the exact same way regardless of social, economic or political status.
  3. The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons.
    • This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights.

A further explanation is provided by WI Jennings[8]:

  • Rule of Law means a limitation of power on every authority, except perhaps a representative legislature.
  • A sovereign or any person acting on behalf of a state can only exercise a power as long as he can authorise his act through an existing law.
  • Equality before the law is flawed – many legislations apply only to special classes, minor’s have different laws.

Other definitions of the Rule of Law

Julius Stone

[9]

  • The true essence of the rule of law is that those in power recognise that their power is “wielded and tolerated only subjects to the restraints of shared socio-ethical conventions.[10]
  • Substantive law must respond to needs of social and economic development.
  • The rule of law does not demand a uniform rule on all matters for everyone.

The Rule of Law should not be limited to three tightly defined principles. The Rule of Law is a broad concept which prevents arbitrary power in any form.

International Commission of Jurists

[11]

  • The rule of law can be characterised as ‘the principles, institutions and procedures, …which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and enable him to enjoy the dignity of men.’

Sir Ninian Stephen

[12]

  1. Government should be under the law, not just ordinary citizens.
  2. Administrators of the law (judges, lawyers) must be independent from government.
  3. There should be ready access to the courts of law for those who seek remedy or relief
  4. Law of the land should be certain, general, and equal in operation

Lord Bingham

[13]

  1. Law must be accessible, intelligible, clear.
  2. Legal rights and liabilities should be resolved by application of the law, not discretion.
  3. Laws of the land should apply equally to all.
  4. Laws must afford adequate protection to human rights.
  5. Means must be provided for resolving civil disputes.
  6. Ministers and public officers should exercise the powers conferred on them reasonably and without exceeding their limits.
  7. Adjudicative procedures provided by the state should be fair.
  8. Compliance by the state with international law.

Reconciling Parliamentary Sovereignty with the Rule of Law

A problem arises because Parliamentary Sovereignty entails the Parliament’s ability to make or unmake whatever law without restriction. This necessarily entails that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.

AV Dicey tries to reconcile these two concepts[14]:

  • Parliamentary Sovereignty, unlike other types of sovereignty, favours the supremacy of the law.
  • Two reasons why Parliamentary Sovereignty won’t result with arbitrary power:
    • The will of Parliament can only be expressed through an act. These acts are only passed after a formal and deliberate process involving two houses and the Queen. An act is also subject to judicial interpretation.
    • Parliament has never attempted (except for the revolution) to exercise executive power.

Dicey’s reconciliation is largely unpersuasive. WI Jennings undermines Dicey’s reconciliation as follows[15]:

  • The complex process which Dicey described is not actually at all complex or deliberate. Several examples can be provided where Parliament passed drastic acts in one sitting or one day. This is arbitrary power indeed.
    • Defence of the Realm Act 1914 – gave Parliament drastic powers
    • Sweeping of the ‘Gold Standard’ in 1931
  • Parliament is not limited to the enunciation of general rules. This means its orders are not merely legislative.
    • It has condemned people to death, release people from compliance with the law, declare marriages void,
  • Parliament can both override judicial interpretation, or even provide that an act is not subject to judicial interpretation.

Another view at reconciliation is made by TRS Allan[16]:

  • Parliamentary Sovereignty is a principle given life by democracy – it only exists because it facilitates the political resolution of communal issues through representative and elected government.
  • If Parliament was to legislate against democracy, it would be using its sovereignty in an unacceptable way.
  • At this point, the Rule of Law would become substantive rather than merely procedural principle – The Rule of Law limits the sovereignty of the Parliament to its purpose of facilitating democracy.
  • Thus, the court’s adherence to Parliamentary Sovereignty should be qualified.
  • “a wise judge will be reluctant to accept at face value a legislation which violates important rights and will strive to interpret it consistently with the traditional (common law) values of individual liberty and autonomy[17]
  • See ‘the principle of Legality’.

The rule of Law as a protector of human rights

Dicey has argued that the combination of the common-law and the Rule of Law adequately protect human rights, thus eliminating the need for a statutory human rights law.[18]

This idea was critiqued by Eric Barendt[19]:

  • What Dicey considered as ‘arbitrary power’ was autonomous executive or prerogative power, whereas we are now concerned with the risk of governments abusing their power through the legislature.
  • Dicey ignored the role of Parliament in safeguarding the Rule of Law:
    • Rule of law is valueless unless it is accepted as a rule which binds the legislature, either as constitutional law or as a general political convention.
    • However, this doesn’t seem to be present in modern British legislatures.
  • Dicey exaggerated willingness and ability of the judges to safeguard the rule of law:
    • Most judges do not give certain rights enough weight or refuse to recognise the rights in question.
  • Also, freedoms are residual – this means everyone is free to do what the law doesn’t prohibit (1st principle made by Dicey, people can only be punished for breaching the law).
    • This means that the common-law is unable to protect right against things like discrimination or invasion of privacy unless there is already a law prohibiting them. Indeed, these examples have occurred.

The UK has passed a statutory Bill of Rights – the Human Rights Act 1998 (UK). However, this does not empower the courts to invalidate laws, but merely to give them a declaration on incompatibility, which is then reviewed by Parliament. Thus, the concept of Parliamentary Sovereignty remains.[20]

Reconciliation: continued

[21]Despite criticism and technical ability of the Parliament to exercise arbitrary power, the Rule of Law is reconciled with Parliamentary Sovereignty through the wide powers of interpretation of the judiciary. This is because: Despite criticism and technical ability of the Parliament to exercise arbitrary power, the Rule of Law is reconciled with Parliamentary Sovereignty through the wide powers of interpretation of the judiciary. This is because:

  • The presumption (when interpreting statutes) is that the statute operates within the Rule of Law, and does not intend to alter the common-law or human rights.
    • The wording of most legislation leaves enough room for the judges to interpret the legislation in a way which restricts the arbitrary use of power and places the legislation within the confines of the Rule of Law.
    • Thus, it is true that Parliament does possess the ability pass arbitrary legislation. But in practice, the courts have sufficient powers of interpretation to limit the executive from exercising those powers.
  • It is also true that Parliament can assert arbitrary power by:
    • Wording its legislation explicitly enough to make alternative interpretation impossible.
    • Restrict the courts from interpreting the legislation in question with human rights in mind.
    • Completely override or reverse court decisions.
  • However, this doesn’t happen often in practice.

These ideas were discussed in Potter v Minhan[22]:

  • There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them would therefore to be avoided.
  • One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares.
  • It is improbable that the legislature seeks to overthrow fundamental principles, infringe rights, or depart from the general system of the law, without expressing its intention with irresistible clearness.

And reiterated in Coco v The Queen[23] :

  • “The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose...[24]
  • Quoting Re Bolton; Ex parte Beane[25] : “Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.”

This was idea is now called the principle of legality.

The principle of legality

“In the absence of express language or necessary implication to the contrary the courts…presume that even the most general words were intended to be subject to the basic rights on the individual.[26]

The principle of legality is a part of the rule of law, and has a broader meaning that simply the presumption against legislative interference with basic rights. This was discussed in R v Home Secretary; Ex parte Pierson[27]:

  • “Parliament does not legislate in a vaccum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption.[28]
    • True, “this assumption can be displaced by clear and specific provision to the contrary.[29]
  • “Legislators…assume that the courts will continue to act in accordance with well-recognised rules…[and] long standing principles of constitutional and administrative law[30]
    • Examples are the principles that discretionary power conferred in apparently absolute terms must be exercised reasonably[31]

End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010)

  1. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 39-40, 59-60, 75-81) in Textbook, pp. 83-5
  2. Geoffrey de Q Walker, “Dicey’s Dubious Dogma of Parliamentary Sovereignty” (1985) 59 Australian Law Journal 276, pp. 276-284 in Textbook, pp. 85-6
  3. Jeffery Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, 1999, pp. 233-4) in Textbook, p. 86
  4. WI Jennings, The Law and the Constitution (University of London Press, 5th ed 1959, pp 147-151) in Textbook, pp. 87-8
  5. TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press, 1993, pp. 282-3, 290) in Textbook, pp. 88-9
  6. TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press, 1993, p. 282) in Textbook, p. 89
  7. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 45-54) in Textbook, p. 90
  8. WI Jennings, The Law and the Constitution (University of London Press, 5th ed 1959, pp 47-51) in Textbook, pp. 91-3
  9. Julius Stone, Social Dimensions of Law and Justice (Maitland Publications, 1966, pp. 619-21) in Textbook, pp. 93-4
  10. Julius Stone, Social Dimensions of Law and Justice (Maitland Publications, 1966, p. 620) in Textbook, p. 93
  11. International Commission of Jurists, The Rule of Law in a Free Society – Report of the International Congress of Jurists, New Delhi 1959 (Geneva, 1959, p. 313) in Textbook, p. 94
  12. Sir Ninian Stephen, “The Rule of Law” (2003) 22(2) Dialogue (Academy of the Social Sciences in Australia) 8 in Textbook, pp. 94-5
  13. Lord Bingham, “The Rule of Law” (2007) 66 Cambridge Law Journal 67, in Textbook, p. 95
  14. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 406-8) in Textbook, pp. 95-6
  15. WI Jennings, The Law and the Constitution (University of London Press, 5th ed 1959, pp 54-58) in Textbook, pp. 96-7
  16. TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press, 1993, pp. 12-8) in Textbook, pp. 104-5
  17. TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press, 1993, p. 13) in Textbook, p. 104
  18. AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 198-202) in Textbook, p. 97
  19. Eric Barendt, “Dicey and Civil Liberties” [1985] Public Law 596, pp. 604-608 in Textbook, pp. 98-100
  20. Textbook, p. 100
  21. Textbook, p. 100
  22. (1908) 7 CLR 277
  23. (1994) 179 CLR 427
  24. (1994) 179 CLR 427, 437
  25. (1987) 162 CLR 514, 523
  26. R v Home Secretary; Ex parte Simms [2000] 2 AC 115, 131
  27. [1998] AC 539
  28. [1998] AC 539, 587
  29. [1998] AC 539, 587
  30. [1998] AC 539, 588
  31. [1998] AC 539, 588
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