SOVEREIGNTY OF PARLIAMENT

Sovereignty Of Parliament



Sovereignty Of Parliament

Introduction

Although the doctrine of parliamentary sovereignty has long been considered the central principle of British constitutionalism but in spite of the lack of written constitutional limits on the United Kingdom Parliament, it has long been recognized that there are certain measures that it would be politically impossible to adopt and whose enactment would, therefore, never be attempted. For example, Mann observed that Parliament could not realistically enact legislation introducing racial or religious discrimination, or “vesting the property of all red-haired women in the state.” (Loveland 2009 pp.112-119) 

United Kingdom Parliament

once the United Kingdom Parliament has renounced legislative competence in relation to a particular country or territory, it is politically impossible—whatever the legal theory of parliamentary sovereignty may suggest—to regain such power. So, having relinquished its ability unilaterally to legislate for (what were then) dominions, such as Canada, Parliament could not later legislate to reclaim that power. As the Lord Chancellor, Lord Sankey, explained in British Coal Corporation v. The King: It is doubtless true that the power of the Imperial Parliament8 to pass on its own initiative any legislation it thought fit extending to Canada remains in theory unimpaired: indeed the Imperial Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute [of Westminster]. But that is theory and has no relation to realities. Examples such as these prompt the realization that the theory of parliamentary sovereignty is ultimately inaccurate—or at least that, properly understood, it “denotes only the absence of legal limitations, not the absence of all limitations or . . . . inhibitions, on Parliament's actions.” (Bradley Ewing 2002 pp.109-115) However, when we confine our analysis to “inhibitions” that pertain only to the extreme or the bizarre—e.g., Mann's discriminatory treatment of red-haired women—it is easy to overlook the fact that the theory of parliamentary sovereignty errs by ascribing unlimited lawmaking power to an institution that is constrained in what it can do by the dictates of political reality. Since the situations in which the theory fails to describe reality are unlikely ever to arise, there is little incentive to revisit the theory: it works perfectly well for all likely eventualities. It is partly for this reason that contemporary criticism of parliamentary sovereignty seems to lack immediacy of impact. Writers who urge reconsideration of sovereignty theory argue that it needs to be rewritten because Parliament should be denied—as a matter of law, not just of practical politics—the power to act grotesquely(Feldman 2002 pp.67-73). However, by merely arguing against a legislative competence that is so broad as to permit the wholesale abolition of democratic governance or of judicial powers to review administrative action, these critiques fail to demonstrate the inadequacy of sovereignty theory except with reference to situations whose eventuation is inconceivable.

The changing constitutional landscape, however, is causing the net around parliamentary sovereignty to tighten: the category of legislation that it is politically impossible for Parliament to enact is expanding substantially. Such developments ought in turn to alter radically our approach to the theory of parliamentary sovereignty, as abstract academic dissatisfaction with the orthodoxy's inability to cope with extreme situations is transmuted into a more pressing need to develop a theory that can account for very real—albeit nascent at ...