Redefining parliamentary sovereignty? a new perspective on the search for the meaning of law.

If students of British law and politics leave their examination of the constitution with but one firmly held idea, it is likely to be A. V. Dicey's doctrine of parliamentary sovereignty. Parliament, we are told, can make or unmake laws of any substantive content whatsoever. Nor are there special rules relating to the amount of parliamentary support a bill must attract; a majority of one in the Commons and Lords is as authoritative as a unanimous vote. Moreover, Parliament is a continuing institution. Its omnipotence is created anew every time it meets; consequently efforts by the present Parliament to place limits on the power of its successors will be futile. Nor need Parliament be explicit about its intention to overrule earlier legislation: a statute which is by implication inconsistent with one of its predecessors is construed as having repealed the earlier act. The doctrine also demands that the constitutionality of legislation cannot be questioned in British courts; a judge may not strike legislation down, irrespective of how draconianly it may impinge upon basic moral or political values. The courts, role is merely to ensure that Parliament's will is respected.

Students who retain more than one idea will qualify the Diceyan formula in several ways. Britain's EC membership has now led to a clear break with orthodox theory; in the recent Factortame (1991) case, the House of Lords considered itself competent to disapply a British statute pending an opinion by the European Court of Justice on its consistency with EC law.[1] Similarly, many students will recall that Dicey's concept was essentially a legal one. He readily acknowledged that there were political boundaries to legal sovereignty. Patrick MacAuslan has latterly termed this concept |auto-limitation'--no government would be likely to promote legislation which so antagonised the electorate that it was voted out of office at the next opportunity.[2] And no Parliament would abolish general elections for fear of provoking a revolution.

For American observers, the idea of bestowing unlimited legal powers on a legislative body which could be controlled by a government commanding the support of only a bare majority, or even a minority, of voters must seem both quaint and alarming. The United States, Constitution rests on the assumption that political and moral values must be ranked in order of importance; the more important the value, the more difficult it should be for citizens to change it. The most important values are those contained in the Constitution. In contrast to traditional perceptions of Parliament's status within the British constitution, both the federal and state legislatures in the USA are bodies of limited competence; they may enact legislation only in so far as it is consistent with the Constitution.

The framers of the American Constitution were much influenced by a fear of majoritarianism. Madison's preoccupation with producing an elaborate, institutional fragmentation of power derived from his presumption that |the invasion of private rights is chiefly to be apprehended not from acts of government contrary to the sense of its constituents, but acts in which the government is the mere instrument of the major number of constituents. This is a truth of great importance, but not yet sufficiently attended to.' Britain's parliamentary system was considered dangerous because an electorate could temporarily be attracted to policies which were either inimical to society's long-term welfare or imposed intolerable burdens on minorities. By demanding that the Constitution could only be changed by three quarters of the states, the framers did not altogether rule out the possibility of a tyranny of the majority; they did however preclude a tyranny of small majorities on major issues.

Fundamental principles can thus be changed only with overwhelming popular support. This provides a legal reinforcement for the political principle of auto-limitation. Should an electorate return a legislature predisposed towards enacting unconstitutional policies, the United States Supreme Court, acting in the capacity of guardian of the Constitution, has the power to strike that legislation down.

Clearly, the formal constitutional competence of the United States Supreme Court and Britain's House of Lords (in its judicial capacity) are very different. However, there are obvious similarities between both the political roots of the courts, powers and the nature of the function they perform.

Both courts derive their constitutional roles from variations on the twin themes of democratic consent and the separation of powers. The periodic election of the House of Commons is the mechanism through which the greatest number of citizens can participate in Britain's political process. In a (limited) sense therefore, the Commons represents the will of |the people'. For a court to refuse to apply a statute would require it to act |undemocratically, in terms of the majoritarian version of democracy underpinning the British constitution. But while a parliamentary majority is the ultimate form of collective political expression available to the British |people,' that function in the United States is fulfilled by the Federal Constitution's amendment process. The ,people, to whom the Supreme Court must defer can express themselves only through common sentiment in three-quarters of the states.

Furthermore, in performing their differing constitutional roles, the two courts face a similar technical problem. In upholding the |will of Parliament', the role of British courts is not simply one of applying law; before reaching that stage, the judges must first determine the meaning of law. The function of implementation is preceded by that of interpretation. The same task arises in a perhaps more acute form for the American Supreme Court in respect both of congressional legislation and of the Constitution itself: to adjudge the constitutionality of a legislative or executive act, the Supreme Court must interpret both the act itself and that part of the Constitution which appears to cast doubt on the act's legality. It is at this point that, in both countries, the messy practicalities of the government process begin to …