The Rule of Law and Parliamentary Sovereignty: an evolution of compatibility

A post by Katherine Shadlock

“To all free men of our kingdom we have also granted, for us and our heirs for ever, all the liberties written out below.”1 With these words began the development of two of the most critical entities of English law, and history: the rule of law and Parliament. In 1215, the Magna Carta’s obligatory decrees set forth the foundation of both the rule of law, and the King’s Council­­later to be developed into the Parliament. Perhaps the writers of the Magna Carta would have been amazed to see how Parliament developed into a sovereign power comprising both a legislature and a judiciary body, and talk of a rule of law came to imbue omnipresence never before imagined. But in the evolution of each came collision, friction, and mutation. The colossus of legislative and judiciary power seated in Parliament and the evolution of the rule of law challenged one another in a continuing quest for balance in authority. But are these titans of reason so irreconcilable? Is the growing importance of the rule of law a threat to that sacrosanct and most fundamental of England’s institutions? To answer this question, it is necessary to view the continuum of these concepts and their respective evolutions: from the tacit and abstract beginnings, to their ubiquitous reference at present day. In the following essay, it is shown that while Parliament and the rule of law have a root akin, the course of their relationship was redefined through the 1980s and decisively in 2005 with the creation of an independent British judiciary. Though independent in their inception, the tides of the centuries have rendered them a new duality.

In 1765, William Blackstone recanted the words of Sir Edward Coke when describing Parliament as an “absolute despotic power, which must in all governments reside somewhere.”2 Indeed, Albert Venn Dicey affirmed the continuance of this sentiment nearly a century later when he stated there was “no area of the law where Parliament is not concerned” and that the limitlessness of Parliament extends as far as “Parliament has the right to make or unmake any law whatsoever”, implying a supremacy of Parliament to the law.3 Yet in the same year as Blackstone penned his Commentaires, the concept of the rule of law took on one of its first and most foundational forms. Entick V. Carrington (1765) held that the equality of all individuals before the law applied universally in the famous quotation that “if it is law, it will be found in our books in an authority against the defendant and the plaintiff must have judgment.”4 This was the basis for what Albert Dicey would define as one of the three qualities of the rule of law: first, that there be general rules and an absence of arbitrary power rather than broad parliamentary power, second, equality of all individuals before the law, and finally, expression of the common law.5 Entick v. Carrington checked Parliament’s free-­for-­all authority and formally established the supremacy of a law as opposed to the influence of arbitrary power. In examining the conflict in these bodies, further thought would suggest that parliamentary sovereignty and rule of law are conflicting principles because parliament is somewhat arbitrary, and absolutely conflicts with the notion that all men are equal, promptly effaces any doubt of the nature of the hierarchy.6 As a result, for the next century and a half this notion of the rule of law flourished in popularity, academic discourse, and legal­political consciousness.

The stark contrast presented invited question and contention with frequency, particularly so in the case Pickin v. British Railways Board. In 1974, the court dismissed this case because it relied on a standing order process not having been fulfilled, therefore denying a judicial challenge of an Act of Parliament, and sending a clear message of parliamentary supremacy.7 Yet only six years later, Lord Diplock in Duport Steels v. Sirs held that the “British constitution is based on the separation of powers. Parliament makes the law, judiciary interprets them” demarcating responsibilities outside of Parliament while limiting the judiciary­­ but most interestingly, reinforcing rule of law.8 This small but critical development set the stage for the next thirty years in the growth and power of the rule of law and it’s ever­-changing dynamic with Parliament.

In 1979, James Malone filed a claim against the Commissioner of Police for the Metropolis for a telephone tapping warrant authorized neither by statute nor by common law.9 The actions of the Commissioner were held lawful because Malone failed to show a violation of right that warranted remedy. However, in an appeal to the European Council on Human Rights five years later moved to grant Malone a win on the grounds that he was entitled to a right to privacy.10 One perspective from this outcome could be that this highlighted a gap in the third Dicean principle of the rule of law addressing the common law, but another perspective is that the rule of law took a grander and farther-­reaching form in the European Union law that definitively asserted the supremacy of judicial chambers over the corps entier of Parliament. Yet twelve years later, Parliament faced another revision of its power. In 1991, Lord Bridge of Harwich stated in X. v. Morgan­Grampian that the “rule of law rests upon twin foundations. The sovereignty of the Queen-­in-­Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”11 While on first glance, this finding echoes that of Duport Steels v. Sirs, the clause indicating that the rule of law “rests upon twin foundations” renders an entirely different conclusion. One could argue that there is simultaneously a lessening in the absolute nature of the rule of law and there is the suggestion of a vertical ascendancy of the rule of law. Running contrary to Dicean principles, this shows a interplay of Parliamentary power and the rule of law fostering codependence rather than competition or conflict.

In similar measure, Jackson v. Her Majesty’s Attorney General corroborated that there may be limits to Parliamentary sovereignty when it held that a preceding Act of Parliament could be used as precedent to pass a later act of Parliament.12 Before analysing this conclusion, it is important to note that 2005 was the year in which an independent judiciary was created in Britain.13 Proceeding from this fact, it is even more influential to consider the contrast presented between Dicey’s previously-­stated conclusion that Parliament may establish or eliminate laws as it pleases and the facts of this case that resulted in judicial affirmation that Parliament was not entitled to do just that. Combined with the creation of an independent judicial body, it appears that by the advent of the twenty­-first century Parliamentary power had been fragmented and lessened while the rule of law came to imbue a grander yet compatible existence.

It is a wondrous to consider how traceable the roots of Parliament and the rule of law to a document that scarcely mentions their name, and how their significance has expanded in function and detail over generations. In origin, Parliament ­as both legislature and judiciary­ maintained the mass of power, while the rule of law was but a tacit and abstract concept hidden between the verses of decrees and decisions. But with the popularization of the identity of the rule of law through the mid­-nineteenth century and continuing through to the twenty-­first century, the power accorded to this principle grew while Parliament’s behemoth decayed as power was met with measure. This came to a peak in the era of the 1980s through the early 2000s when the supremacy of the European courts imposed limitations to Parliamentary authority, and an entirely new judicial body breathed new life into the rule of law. Together, Parliament and the rule of law reached a new equilibrium of interdependency and cooperation rather than irreconcilability. In the present day, there is great question of what the future holds for the relationship between these two entities as Britain moves to exit the European Union. It is possible that the rule of law could be lessened in the absence of European Councils, or perhaps it will evolve to be even more entwined with the workings of Parliament and the judiciary. In either case, the centrality and connection of these bodies cannot be doubted. Like the redwood trees of the United States, though occupying unique space in respective fields, continually share roots over the generations to come.

References:

1 King of England, John, and Stephen Langton. “English Translation of Magna Carta.” The British Library, The British Library, 17 Jan. 2014. 2 Blackstone, William. “Document 2.” Commentaries on the Laws of England: A Facsimile of the First Edition of 1765­­1769., 1st ed., vol. 2, Chicago: University of Chicago Press, 1979. Article 1 Section 1.

3 Venn Dicey, Albert. Chapters 1 & 4. Introduction to the Study of the Law of the Constitution, ed. Roger E. Michener (Indianapolis: Liberty Fund 1982). 13 Nov. 2017. 4 Entick v Carrington [1765] EWHC KB J98 5 Venn Dicey, Albert. Chapter 4. Introduction to the Study of the Law of the Constitution, ed. Roger E. Michener (Indianapolis: Liberty Fund 1982). Accessed 13 Nov. 2017.

6 Loughlin, Martin. “The Rule of Law.” Public Law Lecture Series. Class Lecture, Oct. 2017, London, London School of Economics.

7 British Railways Board v Pickin [1974] AC 765

8 Duport Steels Ltd V Sirs: HL 3 Jan [1980]

9 Malone v Commissioner of the Police for the Metropolis (No. 2): CHD 28 Feb 1979. 10 Malone v United Kingdom [1984] ECHR 10 11 Forsyth, Christopher. Judicial Review and the Constitution. University of Cambridge, 1 May 2000. Page 187. 12 R (Jackson) v Attorney General [2005] UKHL 56. 13 United Kingdom: Constitutional Reform Act 2005 [United Kingdom of Great Britain and Northern Ireland], 2005 Chapter 4, 24 March 2005, available at: http://www.refworld.org/docid/48abd5650.html [accessed 13 November 2017]