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Lord Hutton (dissenting): . . . My Lords, despite the attractiveness of the . . . argument based
on the purpose of the Belfast Agreement, I have come to the conclusion that the appeal
should succeed. The Northern Ireland Assembly is a body created by a Westminster statute
and it has no powers other than those given to it by statute . . . In my opinion the wording
of section 32(3) . . . makes it clear that Parliament intended that if there was not a successful
election with in the six weeks™ period, the Secretary of State would fix an early date for the
poll . . . [T]he objective of the Belfast Agreement cannot operate to alter the meaning of the
[statutory] words.

Had there been a further election to the Assembly, it was likely that the DUP
(the Democratic Unionist Party, led by Ian Paisley) would have replaced
Mr Trimble™s UUP (the Ulster Unionists) as the largest Unionist party. Likewise,
it was felt that Sinn Fein would stand a good chance of replacing Mr Durkan™s
SDLP as the largest Nationalist party. Coalition government was di¬cult
enough with the more moderate UUP and SDLP as the largest parties. With the
DUP and Sinn Fein as the largest parties it was considered almost unthinkable.
(Since the 2003 elections to the Assembly the DUP and Sinn Fein have indeed
been the largest Unionist and Nationalist parties. During all of that time (in fact,
since October 2002) devolution to Northern Ireland has been suspended. An
agreement was reached at St Andrews in Scotland in October 2006 that could
lead to the reinstatement of devolution with e¬ect from March 2007, but this
will be subject to the ability of the DUP and Sinn Fein to work with one another
in the government of Northern Ireland. These matters are discussed in greater
detail in chapter 4.)
This is the political background to the dispute in Robinson. The question of
constitutional law which the case raises is the extent to which the courts should
take political background such as this into consideration when interpreting
what Lord Bingham described as a constitutional statute. The majority of the
House of Lords interpreted the legislation purposively, the purpose being to
maintain devolved government in Northern Ireland. Why should this purpose
have been privileged over other purposes embodied in the 1998 Act and in the
Belfast Agreement that preceded it? Why, in particular, should it have been
privileged over the value of electoral democracy? Is the fact that elections may
sometimes ˜deepen divisions™, as Lord Bingham expressed it, a proper and
relevant consideration for the court? Even if the purposive approach was appro-
priate in principle, what of Lord Hutton™s objection that no matter how noble,
no purpose should be permitted to displace the clear meaning of the statutory
language in sections 16 and 32 of the Act? Robinson suggests that, when it comes
to the interpretation of what the courts deem to be ˜constitutional statutes™
(whatever that may mean in our unwritten constitution), di¬erent rules
71 The ideas of the constitution


may apply from those which govern the interpretation of ordinary (ie non-
constitutional) legislation. (For another case in which the notion of ˜constitu-
tional statutes™ has been considered, albeit in a di¬erent context, see the decision
of the Divisional Court in Thoburn v Sunderland City Council [2003] QB 151,
discussed further in chapter 5.)


Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262
The second case to reveal something of the challenge that is posed for
parliamentary sovereignty by common law radicalism is Jackson, the facts of
which were set out above (p 46). The comments made in Jackson about the sov-
ereignty of Parliament were obiter and, moreover, they were uttered in the
context of litigation concerning statutes passed without the consent of the
House of Lords. It may be, for that reason, that they prove to be of little prece-
dential value. That said, however, their Lordships™ opinions do not expressly
state that their comments about parliamentary sovereignty should apply only
in the context of legislation passed under the Parliament Act procedure (see
Plaxton (2006) 69 MLR 249, 259).
In Jackson, as in Robinson, one of the matters considered was the category of
˜constitutional statutes™. The Court of Appeal in Jackson ruled that, while neither
the Parliament Act 1949 nor the Hunting Act 2004 were invalid, the Parliament
Act procedure would not be available to pass any bill into law. A bill, for example,
to abolish the House of Lords would be a change so fundamental to the consti-
tution that it could be enacted only in the usual way (ie, with the assent of the
Commons, Lords and Crown) and could not be lawfully enacted under the
Parliament Act procedure (see [2005] EWCA Civ 126, [2005] QB 579). This view
was comprehensively rejected by the panel of nine law lords who heard the appeal
in the House of Lords. Lord Carswell did say that ˜Despite the general lack of
enthusiasm for the proposition espoused by the Court of Appeal, . . . I incline very
tentatively to the view that its instinct may be right [and] . . . I wish to reserve my
opinion on it™ but his judicial colleagues in the House of Lords distanced them-
selves from the Court of Appeal™s view, not least because when it was passed in
1911 both Houses knew well that the Parliament Act was more than likely to be
used to enact measures of considerable constitutional importance: ie, the
Government of Ireland Act 1914 and the Welsh Church Act 1914.
Among the most interesting obiter comments in Jackson are the following
from Lords Bingham, Steyn and Hope.


Lord Bingham of Cornhill: . . . The bedrock of the British constitution is, and in 1911 was,
the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was
unconstrained by any entrenched or codified constitution. It could make or unmake any law
it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the
highest legal authority.
72 British Government and the Constitution


Lord Steyn: . . . We do not in the United Kingdom have an uncontrolled constitution . . . In
the European context the second Factortame decision made that clear: [1991] 1 AC 603. The
settlement contained in the Scotland Act 1998 also points 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 . . . 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. Nevertheless, the supremacy of Parliament is still the
general principle of our constitution. The judges created this principle. If that is so, it is not
unthinkable that circumstances could arise where the courts may have to qualify a principle
established on a different hypothesis of constitutionalism. In exceptional circumstances
involving an attempt to abolish judicial review or the ordinary role of the courts, the
Appellate Committee of the House of Lords or a new Supreme Court may have to consider
whether this is a constitutional fundamental which even a sovereign Parliament acting at
the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore
the ramifications of this question in this opinion. No such issues arise on the present appeal.

Lord Hope of Craighead: . . . Our constitution is dominated by the sovereignty of Parliament.
But parliamentary sovereignty is no longer, if it ever was, absolute . . . Step by step, gradu-
ally but surely, the English principle of the absolute sovereignty of Parliament which Dicey
derived from Coke and Blackstone is being qualified . . .
The rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based . . .
Each of the two main parties has made use of the 1949 Act™s timetable, and in subse-
quent legislation passed by both Houses each of these Acts has been dealt with in a way
that has acknowledged its validity . . .The political reality is that of a general acceptance by
all the main parties and by both Houses of the amended timetable which the 1949 Act
introduced. I do not think that it is open to a court of law to ignore that reality . . .
Trust will be eroded if the [Parliament Act] procedure is used to enact measures which are,
as Lord Steyn puts it, exorbitant or are not proportionate. Nevertheless, the final exercise of
judgment on these matters must be left to the House of Commons as the elected chamber.


Several comments may be made about these various statements. First, as the
contrast of approaches between Lord Bingham on the one hand and Lords
Steyn and Hope on the other shows, their Lordships were not unanimous in
terms of their thoughts about sovereignty. For Lord Bingham, outwith contexts
in which the European Union was relevant (and it was not relevant here) there
was no di¬erence between the doctrine of sovereignty as it stood in 1911 and
the doctrine of sovereignty now. For Lords Steyn and Hope, by contrast, even
if the sovereignty of Parliament persists as a ˜general™ doctrine, it does so in a
way that is heavily quali¬ed both by statute and by the common law. For Lord
Steyn, moreover, Dicey™s account, while apparently accepted by Lord Bingham,
is ˜out of place in the modern United Kingdom™.
Secondly, is there not something curious about the construction of Lord
Steyn™s argument? At the beginning of the passage from his opinion he cites
three respects in which, in his view, the sovereignty of Parliament is now
73 The ideas of the constitution


limited. These are: the United Kingdom™s membership of the European Union,
the devolution ˜settlement™ of 1998, and the incorporation by the Human Rights
Act of fundamental rights into domestic law. Each of these, it is to be observed,
came about as a result of legislation. Yet from this starting point his Lordship
goes on to state that the sovereignty of Parliament is a ˜construct of the common
law™, ˜created™ by judges and alterable by them. Even if this is correct (on which
more below) does the conclusion follow from the evidence his Lordship cites?
The changes he outlines were made through legislation by Parliament; not
through common law adjudication by judges.
Thirdly, two of Lord Steyn™s descriptions are worth noting. First, he describes
the devolution legislation of 1998 as pointing to ˜a divided sovereignty™. It is not
at all clear what this means. The Scottish Parliament, created by the Scotland Act
1998, which his Lordship cites, is anything but a sovereign legislature, as the
Scotland Act makes abundantly plain. Moreover, the existence of the Scottish
Parliament has done nothing to limit the legal power of the Westminster
Parliament to legislate for Scotland, even on ostensibly devolved matters: see
Scotland Act 1998, section 28(7). The political reality may for the time being be
that the Westminster Parliament will not legislate for Scotland on devolved
matters without the consent of the Scottish Parliament, but this behaviour results
from a political agreement which is not legally enforceable and has nothing to do
with the legal principles that Lord Steyn is concerned with in this passage.
Secondly, he describes the Human Rights Act as having created a ˜new legal order™.
This is obvious mimicry of the European Court of Justice, which in 1963
famously described the European Union as having created a ˜new legal order of
international law™, a new legal order that dealt with matters of national sover-
eignty, for example, di¬erently from the way in which they were understood in
ordinary international law. Again, however, is his Lordship™s terminology not
somewhat tendentious? Lord Steyn may wish that the Human Rights Act had
created a new legal order of judicial supremacy, but is the reality not that it was
expressly intended to do no such thing? As we saw above, the Act seeks to balance
Convention rights with parliamentary sovereignty, and seeks to ensure that
the sovereignty of Parliament is preserved in the scheme of the Act (see Ewing,
˜The Human Rights Act and parliamentary democracy™ (1999) 62 MLR 79).
Fourthly, there is some di¬culty in reconciling all of the statements that Lord
Hope makes. He starts with the (some would say) sweeping proposition that the
rule of law is the ˜ultimate controlling factor on which our constitution is based™.
This sounds very much like the common law radicalism of Lord Steyn and others,
as outlined above. But Lord Hope goes on to make two further comments, which
seem signi¬cantly to dent the extent to which he can really believe what he says
about the rule of law. First, he o¬ers as a reason for the court holding that the
Parliament Act 1949 is valid that each of the two main parties has made use of the
Act, that both Houses have treated legislation made under the Act as valid, that
the political reality is of a ˜general acceptance™ of the Act™s procedures and, more-
over, that ˜it is not open to a court of law to ignore that reality™. Secondly, and
similarly, he states that the ˜¬nal exercise of judgment™ as to when the Parliament
74 British Government and the Constitution


Act procedures may be used should be left to the House of Commons ˜as the
elected chamber™, not to a court of law. Now, if the constitution really were based
on the rule of law as its ˜ultimate controlling factor™, neither of these would be the
case. Neither the ˜political reality™ nor the judgment of the House of Commons
would stand in the way of the court stating that the rule of law had been violated.
The rule of law would trump both. As it is, Lord Hope holds that the rule of law
has to be conditioned by “ has to give way, even? “ to political reality and to the
Commons™ democratic superiority. Given this, how can the rule of law be the ulti-
mate controlling factor on which the constitution is based?
Finally, and related to the previous point, what is perhaps most important
about Lord Hope™s opinion is the reliance he places on political fact. This brings
us back to what Sir William Wade wrote about the sovereignty of Parliament half
a century before Jackson was decided (see above, p 54). What is the source of the
authority for the proposition that Acts of Parliament enjoy legal supremacy in the
British constitution? Lord Steyn and the common law radicals would say that it
is a rule of the common law, which, like any other rule of the common law, was
created and may be altered by the courts. Wade and Lord Hope, however, take the
view that its source lies in political fact “ or, more precisely, in judicial recogni-
tion of political fact. As Wade argued, it was the political fact of Parliament™s
seventeenth-century victories over the Crown that the courts took into account
when articulating the orthodoxy of parliamentary sovereignty. Similarly, the
political facts of the United Kingdom™s membership of the European Union and
of its incorporation into domestic law of Convention rights may be recognised by
the courts as conditioning the constitutional environment in which the doctrine
of sovereignty now operates. This, it is submitted, is the better view. Just as
the sovereignty of Parliament is a doctrine which Parliament, acting alone, would
struggle to change so too is it a legal doctrine which the courts, acting alone,
should not imagine they could change. As Lord Hope correctly states in Jackson,
the doctrine of the sovereignty of Parliament results from ˜a delicate balance
between the various institutions . . . maintained to a large degree by the mutual
respect which each institution has for the other™. Lord Hope cited with approval
what Lord Reid had stated in Pickin: namely, that ˜for a century or more both
Parliament and the courts have been careful to act so as not to cause con¬‚ict
between them™. As Lord Hope added, ˜this is as much a prescription for the
future as it was for the past™. And it is a reminder as much to the common law
radicals as it is to Parliament that the doctrine of the sovereignty of Parliament is
not to be abused.


(e) Conclusions
For the time being, and notwithstanding the various challenges to it outlined in
the previous section, parliamentary sovereignty remains formally intact as
a matter of law. That said, however, the practical realism of the doctrine may be
questioned. In the ¬rst place, as Professor Lauterpacht observes, ˜the reality of
75 The ideas of the constitution


that sovereignty [of the Crown in Parliament] ends where Britain™s interna-
tional obligations begin™ ((1997) 73 International A¬airs 137, 149). Again, who
can doubt that Parliament has in reality relinquished its power to legislate for
Canada and other independent Commonwealth states, notwithstanding
Sir Robert Megarry™s ruling in the Manuel case (above, pp 50“2) that sover-
eignty over such territories continues?
Another kind of constraint upon the exercise of sovereignty arises from the
phenomenon of ˜globalisation™ “ the growth of a global economy dominated by
transnational corporations and characterised by a free movement of capital,
advanced technology and communications, regulation by international agree-
ments and agencies, and a diminished exposure to national controls. These
developments place limits upon national economic policy-making and to this
extent reduce the scope for the e¬ective exercise of parliamentary sovereignty.
(See Himsworth, ˜In a state no longer: the end of constitutionalism?™ [1996]
PL 639 and see further chapter 1.)
Further, Parliament is limited in its legislative activity by its (or rather by the
Government™s) awareness of what is politically unfeasible or likely to provoke an
adverse public reaction. A more ˜constitutional™ form of constraint consists in
Parliament™s recognition of conventions as to the use of its legislative power. These
may be quite speci¬c, for instance that Parliament should not legislate for the
domestic a¬airs of the Channel Islands or the Isle of Man without their consent
(the Islands having their own legislative authorities). Similar conventions may be
emerging as to Parliament™s respect for the autonomy of the elected institutions
in Scotland, Wales and Northern Ireland to which legislative powers have
been transferred under the devolution settlements of 1998. Broader and less
precise conventions constrain Parliament from enacting oppressive laws, such
as violate fundamental rights or unjustly discriminate between citizens. (The
signi¬cance of conventions for sovereignty theory is explored by Elliott,
˜Parliamentary sovereignty and the new constitutional order™ (2002) 22 LS 340.)
Even if parliamentary sovereignty must be quali¬ed in these ways, it continues
to embody a considerable and wide-ranging power “ within its acknowledged
sphere of application it is still a power not misdescribed as supreme. It provides
a party elected into o¬ce by the people with the fullest legal capacity to put
its policies into e¬ect, and in this respect serves the claims of democracy.
Governments have been able to call on the sovereign power of Parliament in

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