* Hertford College, University of Oxford.

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1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please Sovereignty: Demise, afterlife, or partial resurrection? Alison L. Young* This article is a response to the contributions of Nick Barber and Trevor Allan found in this volume. It argues that an analysis of sovereignty does serve a useful purpose in U.K. constitutional law. More specifically, it argues that discussions of sovereignty should also include an analysis of constitutive rules, particularly aiming to understand which institutions are sovereign in the sense of having the power to define and modify these constitutive rules. When analysed in this manner, an argument can be made that Dicey s traditional theory that Parliament cannot bind its successors is still a valid rule of the English legal system. In addition, this rule is desirable. Its presence is necessary, although not sufficient, to ensure that both Parliament and the courts have a rule in defining and modifying constitutive rules. This dual role is desirable as it helps to maintain the legitimacy of the U.K. s political constitution. This contribution is a response to the discussions of sovereignty found in the papers of Nick Barber and Trevor Allan. Barber s article makes two claims. First, he argues that parliamentary sovereignty 1 is no longer the legal rule that whatever the Queen-in- Parliament enacts as a statute is law. For Barber, Factortame 2 changed this, placing substantive limits on the Westminster Parliament s lawmaking power that could not have been placed on the lawmaker were the U.K. constitution adhering to the rule that whatever the Queen-in-Parliament enacts as a statute is law. Second, Barber states that parliamentary sovereignty is an obfuscatory term that serves to confuse or hide legitimate debate. As such, instead of discussing what sovereignty means, constitutional scholars should instead examine the issues that are disguised by the sovereignty debate, chief among them determining the legitimate role of Parliament. Within the context of the United Kingdom, this requires an examination of how much power, if any, should be transferred from the Westminster Parliament to the European Union or to devolved legislative assemblies. If we are forced to give sovereignty any meaning, then, for Barber, the best meaning we can give to the term is its * Hertford College, University of Oxford. alison.young@hertford.ox.ac.uk 1 As will become clear, sovereignty has many meanings. It is used in the broad sense here; I will try to delineate between its different meanings more precisely in the text. 2 R v. Secretary of State for Transport ex parte Factortame (No.2) [1991] A.C I CON (2011), Vol. 9 No. 1, doi: /icon/mor028

2 164 I CON 9 (2011), older, more traditional definition of the necessary and desirable capacity of a state to autonomously exercise control within its territory. Trevor Allan agrees with Barber s second proposition, making the more general claim that [f]ormal theories of Parliamentary sovereignty serve only to obscure the real constitution by removing all such questions from the province of law. 3 However, he proposes an alternative solution, requiring a focus on substantive theories of the rule of law, which provide legitimate restrictions on the lawmaking powers of Parliament enforced by the courts. Although I disagree about whether the legal rule that whatever the Queen-in- Parliament enacts as a statute is a law has been modified by Factortame, and, if it were to have been modified, the means by which such a change may have occurred, 4 I propose to respond to Barber s and Allan s papers by assuming that such a change did occur in Factortame. In doing so, I hope to illustrate that an understanding of sovereignty is important if we are to engage in an analysis of the proper role of Parliament in the United Kingdom constitution. Moreover, in common with Allan, I will argue that any investigation of sovereignty should not merely focus on issues of power or an analysis of legal doctrine but also on the legitimacy of claims to sovereignty. However, I will argue that the solution does not lie in the adoption of substantive theories of the rule of law but, rather, requires a shift in focus from a definition of sovereignty in terms of lawmaking power to an analysis of sovereignty in terms of power over constitutive rules. 1. Sovereignty or the rule of recognition? The Factortame decision poses an interesting conundrum for the rule that whatever the Queen-in-Parliament enacts as a statute is law. As is well-known, the House of Lords granted an injunction to suspend the application of the Merchant Shipping Act However, the reasoning by which this result was reached, in particular, the issue as to whether the decision modified the rule that whatever the Queen-in- Parliament enacts as a statute is law has been puzzling academics, lawyers, and law students ever since. Barber concludes that Factortame changed the rule that whatever the Queen-in-Parliament enacts as a statute is law, explaining it as follows: The rule of Parliamentary sovereignty could not be changed by Parliament and could not, as a matter of law, be departed from by the courts. However, the courts did possess a political capacity to alter the fundamental rule of the British constitution, and it was this capacity that they had exercised in Factortame. 5 For Barber, therefore, the rule of Parliamentary sovereignty (a) could not be changed by Parliament, (b) could not be departed from by the courts, as a matter of law, and (c) could be changed by courts acting in their political capacity. 3 Trevor R. S. Allan, Questions of Legality and Legitimacy: Form and Substance in British Constitutionalism, 9 Int l J. Const. L. (I CON) (2011). 4 See Alison L. Young, Parliamentary Sovereignty and the Human Rights Act chs. 1 3 (2009). 5 Nicholas W. Barber, The Afterlife of Parliamentary Sovereignty, 9 Int l J. Const. L. (I CON) (2011).

3 Sovereignty: Demise, afterlife, or partial resurrection? 165 However, this assertion poses problems as to the nature of the rule of Parliamentary sovereignty. We know that the rule of Parliamentary sovereignty binds courts. As such, it would appear to have legal force. However, it cannot be a statutory rule or a rule of the common law. If the rule were a statutory provision, then, presumably, it could be changed by Parliament in the same way that any other statutory provision could be changed. If it were a rule of the common law, then it would be possible for the courts to alter this, without that alternation requiring them to act in their political as opposed to their legal capacity. 6 If the rule of Parliamentary sovereignty is neither a provision of the common law nor a provision of statute law, then what could it be? Two possible candidates often arise as possibly accounting for the nature of the rule of Parliamentary sovereignty: Kelsen s Grundnorm or Hart s rule of recognition. The only option open to Barber s account of the rule of Parliamentary sovereignty is to regard this as a rule of recognition. This is because Barber regards the rule of Parliamentary sovereignty as a rule that legally binds the courts. However, Kelsen s Grundnorm is not a rule of the legal system but, rather, stands outside of the legal system. As such, it could not legally bind the courts. 7 Hart s rule of recognition, however, is a rule of the legal system that would bind the courts. It can also be seen as a social rule, whose content can be described by observing the actions of (at least some of) the officials of the legal system. 8 Consequently, the content of the rule of recognition could be legitimately modified when such modification is accepted either by (some) officials administering the legal system 9 or by the legislature and the judiciary. 10 This analysis helps to make sense of what Barber may mean by the courts acting in a political as opposed to a legal sense when modifying the rule of Parliamentary sovereignty: thus, when courts apply the rules of the common law, they act in a legal sense; when their actions are used as a means of identifying the content of the rule of recognition, they act in a political sense. For Barber, therefore, the rule that whatever the Queen-in-Parliament enacts as a statute is law and the rule of Parliamentary sovereignty were changed by the judiciary acting in its political capacity in Factortame, giving rise to the quiet death 11 of Parliamentary sovereignty. My concern is that Barber s argument seems to equate a modification to the rule that whatever the Queen-in-Parliament enacts as a statute is law with a modification of the rule of Parliamentary sovereignty. This has the potential for confusion. The rule that whatever the Queen-in-Parliament enacts as a statute is law is better described as a component of the rule of recognition, not as the rule of Parliamentary sovereignty. Barber s rule that whatever the Queen-in-Parliament 6 Both Jennings and Heuston regard the rule which determines the manner and form in which legislation can be passed as part of the common law. Consequently, they argue that Parliament can modify these rules, as statutory provisions override provisions of the common law. See Sir W. I. Jennings, The Law and the Constitution (5 th ed. 1959), and R. F. V. Heuston, Essays in Constitutional Law (2 nd ed. 1964). 7 Hans Kelsen, Pure Theory of Law (M. Knight trans., 1967). 8 H. L. A. Hart, The Concept of Law (2 nd ed. 1994). 9 Id. at Joseph Raz, The Authority of Law: Essays on Law and Morality (1979), and Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System (2 nd ed. 1980). 11 Barber, supra note 5, at.

4 166 I CON 9 (2011), enacts as a statute is law looks remarkably similar to Hart s formula [w]hatever the Queen-in-Parliament enacts is law, which Hart provides as an account of the rule as to the legal competence of Parliament, the ultimate criterion for the identification of law. 12 In other words, the proposition that whatever the Queen-in-Parliament enacts as a statute is law is or, more accurately, is a component of the rule of recognition. However, the rule of recognition is not the same as Parliamentary sovereignty, although our conception of sovereignty may determine components of the rule of recognition. To see this, we need to return to Dicey s account of sovereignty. Dicey s traditional account of Parliamentary sovereignty has two components: that the Queen-in-Parliament has the right to make or unmake any law whatever and that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. 13 The doctrine of implied repeal that a later statute overrides a contradictory, earlier statute is a legal rule that would be found to be a component of the rule of recognition in any system that adhered to Dicey s conception of sovereignty. However, Barber seems to reverse the inferences, asserting that whatever the Queen-in-Parliament enacts as a statute is law is the rule of Parliamentary sovereignty, inferring from this Dicey s second component of sovereignty that courts cannot override legislation enacted by Parliament and the doctrine of implied repeal, which Barber seems to equate with Dicey s first component of Parliamentary sovereignty. Barber seems to confuse an assertion as to the content of the rule of recognition in the U.K. constitution with the concept of Parliamentary sovereignty. Although an examination of the legal rules in place may help to identify the conception of Parliamentary sovereignty adopted in the present legal system, the two are not the same. This confusion has implications for the validity of Barber s assertion that Parliamentary sovereignty has been modified by Factortame. First, it is perfectly possible to accept that the rule whatever the Queen-in-Parliament enacts as a statute is law has been modified without a concomitant modification of Dicey s conception of Parliamentary sovereignty. It is often argued that the difference between Dicey s traditional / old view / continuing theory of Parliamentary sovereignty and the new view / self-embracing theory of Parliamentary sovereignty depends on whether Parliament can bind its successors. 14 If Parliament cannot bind its successors, then Parliament is sovereign in a continuing sense. If Parliament can bind its successors, then Parliament is sovereign in a self-embracing sense. However, this is often analyzed from the perspective of whether Parliament is restricted, in the sense of whether there are limits on the lawmaking power of Parliament that can be enforced by the courts. Factortame appears to provide evidence of a move from continuing to self-embracing Parliamentary sovereignty, since the House of Lords granted an interim injunction to suspend the application of legislation, thus implying that Parliament no longer enjoyed unlimited lawmaking power, having been bound 12 Hart, supra note 8, at A. V. Dicey, An Introduction to the Study of the Law of the Constitution 40 (10 th ed. 1959). 14 The terminology to be preferred, here, is that of continuing and self-embracing found in Hart, supra note 8, at

5 Sovereignty: Demise, afterlife, or partial resurrection? 167 by its predecessor s enactment of the European Communities Act However, continuing Parliamentary sovereignty does not require that Parliament be completely free; rather it requires that, if it be bound, any limitations on its actions do not derive from the actions of a prior parliament. Doubt regarding the impact of Factortame, in particular, stems from Barber s account of the courts having acted politically as opposed to legally, suggesting that the modification in the rule that whatever the Queen-in-Parliament enacts as a statute is law did not stem from requirements imposed by a prior parliament. If the restriction had stemmed from the actions of a prior parliament, then surely the courts would have been legally bound to modify the rule that whatever the Queen-in- Parliament enacts as a statute is law. Moreover, Barber would not have asserted that Parliament was not able to change this rule. Barber s account of the modification to the rule that whatever the Queen-in-Parliament enacts as a statute is law may have left continuing Parliamentary sovereignty untouched. Following Factortame, Parliament is not bound to comply with the actions of its predecessors, although it is bound to comply with the component of the rule of recognition that defines law to be enacted by the courts. If the rule of recognition changes, Parliament may be in the apparently paradoxical position of enjoying continuing sovereignty such that it is not bound by and cannot be bound by its predecessors while, at the same time, facing court-enforced restrictions on its lawmaking power. This conundrum does not appear so odd, however, when we realize that such restrictions are a prerequisite of sovereignty. For Parliament to be sovereign, we need to be able to recognize a particular institution as Parliament and also need to be able to determine which of its activities amount to the enactment of statutes. In a similar manner, the rule of recognition binds both the House of Commons and the courts in recognizing that a resolution of the House of Commons is not a legally enforceable statute. 15 Moreover, limitations on the unlimited lawmaking power of Parliament are found in Dicey s own theory of Parliamentary sovereignty, which derive from the nature of sovereignty itself. Parliament does not have unlimited lawmaking power in that it cannot bind its successors, because this restriction is required by Dicey s conception of continuing parliamentary legislative supremacy. Our examination so far seems to create further confusion. Barber s argument appears to equate sovereignty with an aspect of the rule of recognition, asserting that this aspect of the rule of recognition has changed. However, to make such an assertion implies that Parliament has a newly limited lawmaking power. This apparent paradox casts light on a more fundamental distinction between continuing and self-embracing theories of sovereignty. Continuing and self-embracing theories of sovereignty do not reach different conclusions as to whether parliament can be bound, but rather reach different conclusions as to who is able to bind parliament. This is because the theories reach different conclusions as to which institution(s) can modify constitutive rules i.e. rules about how Parliament is constituted, rules of continuity that govern the transfer of power from one parliament to the next, 15 See Stockdale v. Hansard (1839) 9 Ad & E 1 : [112] E.R

6 168 I CON 9 (2011), rules determining how legislation is validly enacted, and rules about how such rules can change. 16 If Parliament is sovereign in a self-embracing sense, then Parliament has the power to modify these constitutive rules. So, if a Parliament enjoying self-embracing sovereignty were to enact legislation in 2011 requiring that, in future, statutes would only be valid if they were compatible with directly effective European Union legislation, then future parliaments would be bound by these provisions. The Parliament in 2011 would have succeeded in modifying the constitutive rule concerning the enactment of valid legislation, binding its successors. On the other hand, if the Parliament possesses continuing sovereignty, then it does not have the power to modify constitutive rules in this manner. If it were to enact legislation purporting to alter the rule of recognition, then any modification of the rule of recognition would not have occurred through Parliament s enactment alone. However, were the courts, acting in what Barber refers to as their political capacity, to accept this partial modification of a constitutive rule, then the modification would have succeeded. 17 The rule of recognition would have changed, as both institutions would have accepted such a change. This acceptance has to be an internal acceptance, an acceptance that there is a justification for the rule of recognition to change in this manner. In each case, the result may be the same the constitutive rule regarding the enactment of valid legislation has changed, such that legislation which contradicts directly effective EU law will not be enforced by the courts. However, the method by which this is achieved is different. Such delineation may appear to be too nice. Is it not just nitpicking the terminology applied in one strange country that refuses to adopt a written constitution whose provisions override ordinary legislation, especially given that, in the real world, the result may be no different, regardless of which story is told about how the rule that whatever the Queen-in-Parliament enacts as a statute is law has changed? I will argue that this subtle difference can have crucial importance for the legitimacy of the U.K. s predominantly political as opposed to legal constitution. To see this, we need to examine the justifications provided for granting sovereignty to Parliament. 2. Sovereignty, legality, and legitimacy The traditional interpretation of Dicey s justification for placing sovereignty in the hands of Parliament relies on democracy. As a democratically accountable institution, Parliament can be trusted to act compatibly with the wishes of the people. Consequently, it is better for Parliament to have unlimited lawmaking power, ensuring 16 John Finnis, Revolutions and the Continuity of Law, in Oxford Essays in Jurisprudence (A. W. B. Simpson ed., 2 nd ed. 1973). 17 Mackie distinguishes between these two forms of sovereignty as Sovereignty 1 and Sovereignty 2, where Sovereignty 1 refers to the sovereignty over lawmaking powers and Sovereignty 2 refers to sovereignty over constitutive rules that is, the rules about how Parliament is constituted, rules of continuity, rules determining how legislation is validly enacted, and rules about how such rules can change. See John L. Mackie, Evil and Omnipotence, 64 Mind 200, (1955), and James Allan, The Paradox of Sovereignty: Jackson and the hunt for a new rule of recognition, 18 King s L.J. 1, 1 2 (2007).

7 Sovereignty: Demise, afterlife, or partial resurrection? 169 that wishes of the people are supreme. The traditional alternative viewpoint is one that regards the substantive principles of the rule of law as having greater value. This prioritizes substantive values and principles; these principles are either more fundamental than or are foundational justifications of the democratic decision-making process. Barber s analysis appears to advocate that discussions regarding sovereignty should concern these issues in order to determine the extent to which Parliament should enjoy a limited or unlimited lawmaking power. However, to analyze sovereignty in this way not only misconstrues Dicey s argument but may also do so in a manner that is damaging to the delicate interinstitutional balancing that underpins the United Kingdom s constitution. First, as Allan points out in his article, 18 courts play a much larger role both in Dicey s argument and in an accurate description of the U.K. constitution than Barber s analysis would appear to suggest. Allan argues that Parliamentary sovereignty ascribes sovereignty not to Parliament but to the wording of legislation, which is then interpreted by Parliament. Dicey, too, recognized the role of the courts, interpreting legislation so as to protect principles of the rule of law, even potentially to the extent that their interpretation of legislation which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments. 19 To regard sovereignty as merely focusing on the extent to which Parliament should have unlimited lawmaking power may fail to recognize the fundamental role played by the courts in the United Kingdom a role perhaps exacerbated by the enactment of sections 3 and 4 of the Human Rights Act For Allan, the recognition of the role of the courts demonstrates that Parliament is not sovereign, its sovereignty is shared with the courts. 20 At first sight, this may appear to suggest that neither the rule of law, represented by the Court s interpretation of legislation, nor the sovereignty of Parliament are wholly sovereign ; sovereignty, interpreted, perhaps, as ultimate power, is shared between the two. However, a more accurate reading of Allan s argument is to recognize that sovereignty, in the sense of superiority, rests with the substantive principles found in the rule of law. These substantive principles provide the legitimacy for legislation. The courts are the best institution to interpret legislation so as to ensure it adheres to these substantive principles, both because courts are independent and because courts engage in reasoning processes that mirror those employed in moral reasoning, meaning that they are better placed than the legislature to ensure that legislation adheres to these substantive values. Sovereignty, in the sense of power or, perhaps, importance, rests with these substantive values. Allan would answer Barber s issue as to whether the powers of the legislature should be limited by arguing that Parliament s powers should be limited because its legislative enactments are only legitimate when they comply with substantive values reflected in the rule of law. My preferred justification differs from that of Allan. This stems from an analysis of another possible meaning of sovereignty, focusing not on the lawmaking power, be 18 Allan, supra note 3, at. 19 Dicey, supra note 13, at Allan, supra note 3, at.

8 170 I CON 9 (2011), it limited or otherwise, but on the power to alter constitutive rules. In this sense, it is closer to an understanding of Kompetenz-Kompetenz, or an analysis of constituent power. While I share Allan s recognition of the strong role of the court, I see this role as justified not because of the better ability of the court to recognize the substantive values that legitimize legislative actions, but because such recognition places the sovereignty over constitutive rules in the hands of both the legislature and the courts. It is not substantive values per se that are sovereign, in the sense of having overriding power or of legitimizing administrative or legislative actions. Rather, sovereignty, in this sense, is found in these constitutive rules. These constitutive rules can only be modified when both institutions agree to their modification, their agreement requiring acceptance of these rules. I would argue that this interinstitutional balance is a better means of ensuring the legitimacy of legislative acts. This is best explained by means of an example. As Allan recognizes in his article, Jackson poses as many issues for sovereignty as the Factortame case mentioned by Barber. 21 For Allan, these difficulties arise when the courts are forced into coming to terms with whether the sovereignty enjoyed by the U.K. Parliament is continuing or self-embracing in nature, rather than being able to examine whether the restriction placed on Parliament s lawmaking capacity is justified or not. In addition, this forces the courts to separate legitimacy and legality. While sharing a concern regarding the problem of trying to discern what conception of sovereignty was accepted in Jackson, 22 my concern with Allan s analysis of the case is his apparent acceptance that the rule whatever the Queen-in-Parliament enacts as a statute is law is a principle of the common law that can be modified by the courts. If this is the case, then sovereignty, in the sense of control over constitutive rules, rests with the courts. However, my concerns as to the ability of the Court to accurately perform the moral reasoning required in determining the content of the moral principles underpinning the law, combined with concerns regarding the existence of substantive values sufficiently determinate as to enable the courts merely to recognize as opposed to creating the culturally specific refinements of these values, lead me to question whether this would be to place too much power in the hands of the courts. An alternative reading of Lord Steyn s statement pertaining to the ability of the courts to choose not to recognize legislation that purports to remove judicial review from the courts purview is to see this as what Barber and I have referred to as constitutional self-defence mechanisms. 23 From this perspective, both the legislature and the courts share sovereignty in the sense of sharing the ability to modify constitutive rules. However, neither the legislature nor the courts possess sovereignty, in the sense of possessing unlimited powers or in the sense of possessing the ultimate power to enforce their will over that of the other institution. However, each institution 21 R (Jackson) v. Attorney General [2005] U.K.HL See Alison L. Young, Hunting Sovereignty: Jackson v. Attorney-General, Pub. L. 187 (2006). 23 Nicholas W. Barber & Alison L. Young, The Rise of prospective Henry VIII clauses and their implications for sovereignty, Pub. L. 112 (2003).

9 Sovereignty: Demise, afterlife, or partial resurrection? 171 has enough powers to lay claim to being the U.K. constitution s most powerful institution, their shared sovereignty as the power to modify constitutive rules helping to ensure that each institution must think carefully about transforming a claim as the constitution s most powerful institution into reality. When analyzed in this manner, the Parliament Acts 1911 and 1949 can be seen as an attempt by the legislature to modify the constitutive rules, an attempt that might have been accepted or rejected by the courts in Jackson. Lord Steyn s statement is best understood as a recognition that, if the legislature had attempted to lay claim to greater lawmaking powers, moving to an assessment of its own position as that of the ultimate lawmaker by removing the powers of judicial review from the courts, the courts would have failed to recognize this legislation, exerting their claim to sovereignty over the constitutive rules by treating the rule regarding the identification of valid legislation as part of the common law and thus open to modification by the courts. If the courts were to act in this manner, it would give rise to a constitutional crisis. Such a crisis could only be resolved were one institution or the other to make good on its claim to being the sovereign institution in the sense of the most powerful in the United Kingdom s constitution. Each institution would be faced with a situation in which it could, therefore, lose its claim to this sense of sovereignty. Any resolution of a constitutional crisis, then, would rest on a combination of what is acceptable to those governed by the U.K. institutions viewed through the lens of substantive values and principles as well as interpretations of these substantive values and principles that constitute the values of the United Kingdom. 3. Conclusion To merely focus on whether the lawmaking powers of the Westminster Parliament should be limited may miss an important justification for adopting Dicey s continuing version of sovereignty. An acceptance of this version of sovereignty is necessary to ensure that the power to modify constitutive rules rests in the hands of the officials of the legal system, most notably the Parliament and the courts, both of whom need to work in tandem. The interinstitutional balance provided by continuing Parliamentary sovereignty provides a checking mechanism. And as both institutions need to accept constitutive rules as standards of behavior, these checking mechanisms can help give rise to refinements of the substantive values that constitute the values of the United Kingdom. On the other hand, to regard sovereignty as less important than these substantive values may also challenge this interinstitutional balance. If courts are regarded as the institution best suited to protecting substantive values, then it is hard to resist the temptation of placing the constitutive rules in the hands of the courts, with courts having the power to overturn legislation that fails to protect these substantive values, whether these values are recognized in a written constitution or not. For those who believe that substantive values are contestable and question the ability of the courts to clearly identify these values, this can also damage the legitimacy of United Kingdom s constitution.