John Redwood MP: Standing up for Parliamentary Sovereignty

The Crown was sovereign once. Indeed, sovereignty technically still belongs to the Crown in Parliament. We all know about the events that took place over several hundred years, particularly when they were accelerated during the 17th Century revolution and crisis. There was a large transfer of power from the Crown to Parliament. When a sufficiently large transfer of power takes place from someone who was sovereign to those who would be sovereign, a point is reached at which that sovereignty passes because enough power has been surrendered and the arrangements have changed sufficiently.

We need briefly to look at how that very big transfer of power occurred in the 17th Century from the Crown to Crown in Parliament and, in due course, effectively to Parliament standing on its own. One important factor was that Parliament was very good at aggregating power to itself. In those days, it decided to be very nice to bankers, which worked very well for it, because it got the City of London and the men of finance on its side. The English Navy responded to the commands of the English Parliament. Parliament also took the precaution of hiring and training and paying the best army in the country. It got over the problem of competing armies and, in due course, established that it had military power and could command the Army. Paying them on time was a clever innovation, which the City helped them achieve.

Parliament also needed to deal with the judges. It was established during the revolutionary period that judges were necessary and that, according to our current tradition, they had to be independent and should not interfere in parliamentary matters by trying to make the law. They simply had to deal with the law as Parliament provided it. We therefore eventually ended up with a very powerful Parliament.

In the 19th and 20th centuries, Parliament did something that everyone is now united in admiring: it made the exercise of power by Parliament a democratic matter by extending the franchise until practically every adult in this country was able to participate in elections. That gave Parliament the authority of having a democratic voice and mandate. The question that we must now ask is whether that great democratic settlement is now under threat from judge-made law, from Europeanmade law and from other centers of power. Could parliamentary sovereignty come under pressure in the nottoo- distant future? Is it being damaged because too much power is being transferred? These questions account for the nervousness from Members of Parliament and the public about the degree of power that has already been surrendered by successive Parliaments over the years, particularly under the previous Government following the treaties of Nice, Amsterdam and Lisbon. Under those treaties, a large number of areas were transferred either to joint decision taking or to sole European decision taking.

That means that the exercise of power in many important areas of activity, including regulation, the expenditure of money and the provision of public services now emanates from the continent. Those powers are trying to establish their own democratic credibility through the European Parliament. They are also trying to establish their own judicial credibility through the European Court of Justice, and their own administrative credibility by strengthening the powers that are exercised around the various collective corporate tables that constitute the ever-evolving, and ever more powerful, European Union settlement.

The main point here is whether there is something that this Parliament could and should do, no matter how much power has passed, how many decisions are taken through the European Union and how much money it now takes to itself and spends on our behalf, to make it clear that, should we want those powers back, we can have them back. If we wish to change or moderate what the European Union is doing, do we have every right to do so because we are still the sovereign? 

Some of us fought long and hard to keep the currency under British sovereign control. These arrangements involve a British sovereign and preserve the settlement of the Queen in Parliament, and the Queen’s face appears on the banknotes of the realm, but we all know that they are Parliament’s notes and that they represent an expression of parliamentary sovereignty. Indeed, it was this very Parliament that, by a majority, approved the previous Government’s decision to print a lot more of those notes-or electronic notes-as an expression of what that sovereignty can do for the people of Britain.We can argue about whether that was a good thing or a bad thing, but it was an undoubted expression of sovereignty.

There is also the test of what might arise if or if Britain chooses to renegotiate back areas of competence now partly or wholly controlled by the EU. I would like us to elect a Government in this country who had the necessary majority to go off to Brussels and say, “It is now the settled will of this Parliament that we want different arrangements on this particular policy, and if you will not grant them through the European Union arrangements, we would like to negotiate our exit from the existing policy.” That is exactly the kind of renegotiation that many Conservatives were elected to achieve, and, had we had a majority, we would have wanted our Government to do something like that. There are also a number of other policy areas, some of which are more politically contentious, where we think we can make better decisions here than are being made in our name by the European Union.

If such renegotiations could be achieved, we would clearly have reasserted, or asserted, the sovereignty of our Parliament. If, however, they can never be achieved, it is difficult to see how Parliament could still be sovereign. If we are saying that nothing can ever be changed once it has been agreed under the various procedures in Brussels – including the many measures that the British Government did not want or on which they were outvoted – we cannot say that we are sovereign any longer.We would then be in a relationship with the European Union that would fall short of our preserving parliamentary sovereignty.

The other point I wish to highlight is a narrow, but crucial, legal issue. As I understand it, we have a Government who say that they wish to do all they can to reassure people in this country that we are and intend to remain sovereign. They do not wish to pick a fight with Brussels, and I am not asking them to do so. They say, however, that should a disagreement arise in future that cannot be resolved through the usual channels, it will be settled here. I am very much in favor of that; this seems to me to be a wholly admirable and sensible approach. If that is the intention, it proves that Parliament is still sovereign. However, in the future, we will only remain so if we have the will and determination to shape our own destiny, should the need arise. I hope we can do it by agreement. Any sensible person wishes to do it by agreement, given how far we are in this project with our European partners and what a mess they are in.

Successive Governments have always said that they quite agree with those of us who make these points, but they have never managed to negotiate a better deal. Would it not be wonderful if the Government said, “If we cannot negotiate a better deal next year, we will use British parliamentary sovereignty to pull out of a particular policy area now devolved to Europe”? I would like to do that and I do not think it would be tantamount to leaving the European Union. Although Brussels might be unhappy at this, the EU would probably do a deal with us because it would be more embarrassing to have a sovereign Parliament taking unilateral legislative action than to do a deal. I hope the EU would do a deal; it would be sensible for it to do so.

If we are not prepared at some point to assert our power, we lose our sovereignty. Just as the Crown lost its sovereignty, became the Crown in Parliament and eventually lost practically all its real powers, so the current Parliament is losing its powers. If it goes on losing them, without at some point standing up for a better deal for Britain, this Parliament will no longer be sovereign.

One thought on “John Redwood MP: Standing up for Parliamentary Sovereignty

  1. David Radlett

    I found this very interesting. I would like to draw attention to the fact that some of the judges are becoming really rather unsafe on the sovereignty issue. Although the late Lord Bingham stood up for sovereignty, other judges have started to express doubts. In R (Jackson & others) v AG [2005] 4 All ER 1253 Lord Hope said “104. … parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified. 105 … Although Parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law, that in practice is the effect of section 2(1) when read with section 2 (4) of that Act. The direction in section 2(1) that Community law is to be recognised and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last word in this matter to the courts. The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants in this area.” Lord Steyn went even further: “We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision [1991] 1 AC 603 made that clear. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act 1998, created a new legal order. One must not assimilate the European Convention on Human Rights with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom.” There is a real danger that judiciakl thinking upon these lines will lead a future court to seek to close down arguments based on sovereignty. We ignore this at our peril.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>