Looking around at the faces of new MPs, wandering bemused, around the Houses of Parliament over the past few weeks, it is easy to forget just what extraordinary power these individuals now hold.
As humble new backbenchers they may not think so, but it is no exaggeration to say that collectively and constitutionally they are now members of an institution that is nothing short of an elected dictatorship. In the general humdrum reality of British political life these powers may be theoretical – but no one living in this country should be under any doubt that they are there.
Take just a few examples. Parliament alone can determine what is legal and what is illegal in Britain – as well as the punishment for illegality. It can make war. It can dispatch ministers; prime ministers; even kings and queens. A simple majority vote in Parliament would be enough to bring back the death penalty; abolish the BBC; withdraw from the European Union; hand over the Isle of Wight to Russia; or unleash Britain’s nuclear weapons.
When it is said that Parliament is “sovereign” it means just that. Over hundreds of years – through wars, negotiations, executions and conventions – it has amassed all the powers of the state that used to be in the hands of absolute medieval sovereignty. As the Swiss political theorist Jean-Louis de Lolme put it in his – not uncritical – 1771 book on the English constitution: “Parliament can do everything but make a woman a man and a man a woman.” Even that is now a moot point, given recent medical advances.
In reality, of course, how Parliament exercises its power is constrained by myriad “real-life” factors. But the fact remains that, in theory at least, our 650 elected MPs and 800-odd unelected peers have far more power than most of us who voted for them would ever imagine.
The basic reason for this is that, unlike other countries – notably the United States – we do not have a written constitution whose broad principles of citizens’ rights and responsibilities trump the will of the elected assembly.
In the US, Congress can pass laws, but it is ultimately the Supreme Court that judges whether those laws are “constitutional”. In Britain we have a Supreme Court, but it can only interpret the laws as laid down by Parliament and the treaties that Parliament has signed up to. If the Supreme Court rules something is illegal, a simple majority vote in Parliament can make it legal.
And that is very significant. Take, for example, the bête noire of the Conservative right: the power of the European Court of Human Rights over British law. In reality the European Court has constitutional authority over our laws only because Parliament has agreed to it. If a future parliament (or indeed government) were to withdraw from the Convention on Human Rights, the court would have no authority over the UK whatsoever.
The same is true of the European Union. The UK courts recognise the supremacy of EU law on those subjects where the EU can legislate. However, this supremacy derives from the European Communities Act 1972 (and its successor acts), which could be repealed by a future parliament.
So what does sovereignty actually mean? How did the concept develop? And what is the relationship between the two elements of Parliament: the Commons and the Lords?
Sovereignty means that Parliament can make laws concerning anything. It means that no Parliament can “bind” a future parliament to something on which it has previously legislated; and that a valid Act of Parliament cannot be questioned by a court of law.
The root of these powers goes back to the English Civil War but it was not until the Glorious Revolution and the Bill of Rights (1689) that stemmed from it that the concept of parliamentary sovereignty really took root.
That document, for the first time, laid down limits on the powers of the monarch and set out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It also stated that no laws could be dispensed with or suspended without the consent of Parliament and that no taxes could be levied without its authority.
Since then, parliamentary power has evolved without recourse to another such fundamental document of rights. Powers that used to be the preserve of the sovereign have gradually been transferred to Parliament while the Commons has exerted its supremacy over the Lords. For example, the Parliament Act 1911 abolished the power of the House of Lords to veto a bill passed by the House of Commons (peers can now delay legislation only for a defined period of time). Similarly, in 1945, faced with the prospect of a Labour-dominated Commons and a Conservative-dominated Lords, the leaders of both Houses agreed the Salisbury Convention: that is, that in future, peers should not oppose legislation contained in a party’s election manifesto at second reading. It is, however, no more than a convention.
But while Britain does not have a written constitution defining the powers of Parliament it is not entirely true to say that none of the UK constitution’s rules is written down. In fact, there are several documents that come close to being constitutional textbooks.
The most important of these (which is still updated more than 170 years after publication) is Erskine May’s A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament. This sets down the rules of parliamentary procedure and the relationship between the executive, legislature and sovereign and is still regularly cited as the ultimate arbiter of Britain’s unwritten constitution.
Yet the truth is it is only a guide; and the principal point remains. Britain’s system of government has been built up over the years on foundations that consist largely of convention, with no overarching legal document that codifies and guarantees the rights of citizens. As long as that remains the case – and repeated calls for a constitutional convention to rectify the situation show little sign of being heeded – the theoretical power of Parliament is fundamentally unchecked.
Key texts: The sovereignty of Parliament
A | From the Petition of Right (1628):
“To the King’s Most Excellent Majesty… your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent, in parliament.”
B | From the Bill of Rights (1689):
“The… Lords Spiritual and Temporal and Commons… being now assembled in a full and free representative of this nation… do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare:
• That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
• That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
• That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
• That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
• That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
• That election of members of Parliament ought to be free;
• That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
• … And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
C | From ‘Introduction to the Study of the Law of the Constitution’, by A V Dicey (1885; 10th edn, 1959 by E C S Wade):
“The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, 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…
“Parliamentary sovereignty is therefore an undoubted legal fact. It is complete both on its positive and on its negative side. Parliament can legally legislate on any topic whatever which, in the judgment of Parliament, is a fit subject for legislation. There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of Parliament. No one of the limitations alleged to be imposed by law on the absolute authority of Parliament has any real existence, or receives any countenance, either from the statute-book or from the practice of the Courts.”
D | From ‘Treatise on the Law, Privileges, Proceedings and Usage of Parliament’, by Thomas Erskine May (first edition, 1844):
“The legislative authority of Parliament extends over the United Kingdom, and all its colonies and foreign possessions; there are no other limits to its power of making laws for the whole empire than those which are incident to all sovereign authority — the willingness of the people to obey, or their power to resist. Unlike the legislatures of many other countries, it is bound by no fundamental charter or constitution; but has itself the sole constitutional right of establishing and altering the laws and government of the empire.”
E | From ‘The English Constitution’, by Walter Bagehot (1867):
“The ultimate authority in the English Constitution is a newly-elected House of Commons.”