Parliamentary sovereignty to the rescue?
The UK government is introducing bills that could harm the rule of law and democracy. Does parliamentary sovereignty require the judiciary to apply such laws, or could it also be interpreted differently?
Boris Johnson's war on the people
On 8 December 2021, Gina Miller, the claimant in the two Brexit cases, wrote in the Guardian: ‘Boris Johnson's war on judges is a fiction – the truth is, this is an attack on all of us’. Miller signals that Johnson's proposals are harming the substantial rule of law and perhaps even democracy itself. Miller's firm statement was elicited by the Interpretation Bill Johnson published a week earlier. This bill makes it possible for ministers to repeal the outcome of judicial review. This Interpretation Bill is not the only recent government proposal that caused controversy. Johnson's government is also playing with the idea of repealing the Human Rights Act and it proposed restrictions on judicial review and the right to protest. The Elections Bill strengthens the first-past-the-post voting system, a system that has long been scrutinised for leading to minority parties achieving majorities in parliament and disenfranchising younger and lower-income voters. The proposed Nationality and Borders Bill makes it easier to strip citizenship off anyone with a second nationality, sometimes even without prior notice.
If these government-proposed bills truly are 'an attack on all of us', should the judicial branch forfend the people from these plans? This post will discuss to what extent the judiciary has grounds to reject legislation that harms the rule of law and democracy by offering two non-orthodox views on parliamentary sovereignty.
Orthodox view on parliamentary sovereignty
Brexiteers captured the public imagination in their campaign for the Brexit referendum with the slogan ‘taking back control’. The ‘control’ was understood by many as referring to parliamentary sovereignty. The traditional meaning of parliamentary sovereignty entails parliament’s ability to make or unmake any law, while there is no other institution that can overrule these laws. However, the rightness of this view on parliamentary sovereignty has been intensely debated. Since Brexit, the British government has tried to re-establish this view with the proposals mentioned before. It can even be argued that the government is not trying to reinstate parliamentary sovereignty, but instead wants to enhance governmental sovereignty. Following the traditional view on parliamentary sovereignty, there is not much that can be done against these proposals, even though many see these proposals as an attack on the independent judiciary and the rule of law. After all, if parliament passes these proposed bills, there is no other institution that can touch upon the validity of these laws.
Non-orthodox views on parliamentary sovereignty
While the traditional view requires judicial obedience, there are also two other views on the concept of parliamentary sovereignty. Firstly, the modern view claims that parliamentary sovereignty and the rule of law are equally important, leading to a system of shared sovereignty and democratic dialogue in which both principles strengthen and limit each other. Sir Stephen Sedley was the first to introduce such a system with his account of bi-polar sovereignty. Secondly, the common law constitutionalists claim that parliamentary sovereignty is a principle of the common law. Consequently, the judiciary can shape and control the meaning and limits of parliamentary sovereignty. Both these views allow the judiciary to restrict the legislative powers of parliament. This can happen in two different ways.
The least invasive way is to interpret the legislation of parliament in such a way that it does not harm the rule of law and human rights. Acts of parliament are always written in a general sense, and need interpretation before they are applicable to specific situations. In this process of interpretation, the words of the act can be given a different meaning than parliament intended. After all, it is the act of parliament that is sovereign, not the intention. The force of this interpretational method has proven itself in case law to be strong. In the cases regarding ouster clauses, clauses that limit or remove judicial review from decisions from certain tribunals or specific statutes, the judiciary has interpreted these clauses so narrowly that it became practically impossible for parliament to successfully oust the jurisdiction of the courts. To give an example; in the Anisminic case the following section was being challenged: ‘the determination by the commission of any application made to them under this Act shall not be called in question in any court of law’. The House of Lords decided that the word determination could only refer to a valid determination, therewith creating an opening for judicial review and stripping the section of any practical relevance. The second option courts have is to confront parliament face front and squash the newly proposed acts based on a violation of the rule of law. Courts have already expressed the possibility to do so in earlier cases, but have never applied this method yet.
Towards a constitutional crisis
Looking at the developments in the UK, a worrisome tendency is visible. Proposals are being made to reform the judiciary, while at the same time the right to protest and the protection of people’s nationality is being restricted. With no possibility for the judges to review these laws based on a written constitution, one might say that this is parliament's will and therefore the correct democratic path to follow. However, multiple views on parliamentary sovereignty exist, and not all of them demand that the courts slavishly follow parliament's laws. If these bills that are being proposed are indeed passed and turn out to harm the rule of law or even democracy, the courts could either use their interpretational force or the possibility to squash the laws to counter them. Depending on your view on democracy, this is either a bullet we must bite or a sign of a healthy functioning liberal democracy. Either way, such interference from the courts will lead to a heavy constitutional debate or even a crisis. Nevertheless, for people opposing the orthodox view on parliamentary sovereignty and the people opposing forementioned bills, the constitutional crisis is already present.