Parliamentary Sovereignty is dead and this was affirmed by MPs when they voted against Bill Cash's amendment on the Lisbon Treaty Bill and this is no surprise says Peter Facey from Unlock Democracy as he urges for a written constitution.
Say what you like about Bill Cash, he did us all a big favour two weeks ago. He proposed an amendment to the European Union (Amendment) Bill which would have affirmed the sovereignty of Parliament over and above any of our legal commitments in the Lisbon Treaty . The Lib Dems and Labour voted against this amendment. Shame-faced, the Conservative front bench all abstained, leaving the other parties to do their dirty work in voting down the small band of Cash-supporting Tory backbenchers
What this vote revealed is something which constitutional experts have known for years but many prefer to ignore: the doctrine of parliamentary sovereignty is dead, and arguably never really existed. What's more, we're better off without it but it is high time we had something in its place.
The story of Britain's constitution is the story of an over-powerful executive periodically having its wings clipped. The doctrine of Parliamentary sovereignty arose out of this struggle. In theory at least it works by ensuring that Parliament can make a law on anything it likes, that no Parliament can bind a future Parliament, and that no valid act of Parliament can be questioned by the courts.
We can argue about the exact origins of the doctrine of Parliamentary sovereignty, but the English Parliament's authority became an unarguable part of the constitution in 1649, when the decision to separate Charles I from his head was made in its name. Of course, the next decision made by Oliver Cromwell was to shut Parliament down for twenty years, an act which rather gave the game away in exposing where power truly lay. With the monarchy eventually restored, a whole raft of powers remained in the hands of the monarch. Formally at least, the monarchy remains the institution that decides whether we sign international treaties, go to war and even call elections. Of course the Queen would never dare exercise these "royal prerogative" powers by herself and instead invests them in the government.
Because Parliament is elected, the idea was that investing sovereignty in Parliament means that ultimately the people are in control. In an era of powerful monarchs, this was certainly a powerful tool for restraint, but as they faded into the background it became increasingly problematic. Government is now in theory accountable to Parliament but with no separation of powers and the rise of a two-party system, in practice government has a stranglehold over Parliament. The 1911 and 1949 Parliament Acts, which curtailed the House of Lords' powers, entrenched this further.
To put this into perspective, look at the government's proposals to reform the royal prerogative powers and give Parliament a greater role in exercising them. Superficially this sounds like radical stuff, with the government giving away its powers. In practice however, the government whips will almost always be able to force whatever they want through Parliament. If Gordon Brown wants a general election he will get one whether the final decision is made by Parliament or not.
The only way parliamentary sovereignty would have any meaning would be if we adopted a system of proportional representation. This would make it far less likely for a single political party to form a working majority in Parliament (Labour got just 35% of the vote in 2005) and thus every government bill would have to be negotiated on a cross-party basis. In New Zealand, a country which up until the 90s had replicated our parliamentary model of governance lock, stock and barrel, this is precisely what has happened. We should pause to wonder why it is that so many of parliamentary sovereignty's staunchest defenders are also opponents of PR. Could it be that a truly strong Parliament is the last thing they want?
But do we actually want a supremely powerful Parliament, and is one even possible in a globalised world? No democracy is worth the name if it is little more than a tyranny of the majority. The rights and freedoms of the individual are equally important to us and this has been a dominant theme of the British constitution even before the Magna Carta (http://www.unlockdemocracy.org.uk/?p=1222). It was a concern about this that lead to the drawing up of the1689 Bill of Rights and the Universal Declaration of Human Rights. There are some lines that even the most wildly popular governments should never cross and Parliamentary sovereignty is a very weak check on this.
Meanwhile, the 19th century idea of global diplomacy centred around muscular nation states locking horns has been exposed as delusional and dangerous by the two world wars in the 20th. The European Union is one response to this, but I could also cite the Council of Europe, the United Nations, the World Trade Organisation and the International Criminal Court. International law may still be in its infancy, but it is springing up all over the place.
The idea behind international law is that we agree to basic rules with the assurance that our co-signatories agree to abide by the same. The European Union has gone further than any other trans-national body in implementing this principle, but it is a fact of life we would continue to have to abide by even if we left the EU. Certainly countries such as Norway and Switzerland, both net contributors to the EU despite not being members, are only too aware of this.
With all that said however, such decisions should not be taken lightly. Ratifying the Lisbon Treaty is clearly a bigger step than, say, whether to ban smoking in pubs. Most EU member states recognise this, which is why either their Parliaments have to agree to ratify treaties with constitutional implications by super-majorities (e.g. two-thirds of the MPs must agree to it) or hold a referendum as Ireland has to do automatically. The UK, with its uncodified constitution and its politicians enraptured with the idea of Parliamentary sovereignty, has no such mechanism. We don't even formally recognise the difference between constitutional law and ordinary law.
This works the other way as well. With no restraint on Parliament, over the last century the UK has become one of the most centralised democracies in the world. Almost every political crisis has precipitated greater centralisation, egged on by the media. The EU has a legal obligation to respect subsidiarity; the UK has no such obligation.
The solution to all this is simple. We need a codified constitution, ratified by popular vote, that clearly lays out what powers and rights Parliament, government, the judiciary and we mere mortals have. It would do a lot more than Lord Goldsmith's proposed citizenship ceremonies to give the public an idea about what being a British citizen really means.
The main objection to this is that it would give the unelected and unaccountable judiciary too much power. Yet judges adjudicate over people's rights on a daily basis already - not only due to the Human Rights Act but in judicially reviewing decisions made by public services and government departments. No-one is arguing that the judiciary should be given legislative power. They would merely act as a restraint on Parliament, forcing it to think again. And the rights they would be defending would be our rights, agreed by us.
The Lisbon Treaty debate has highlighted a gaping hole in the UK constitution. The Labour government tacitly accept that Parliamentary sovereignty is no longer a useful concept - that's why they lined up to vote down Bill Cash's amendment. The Conservatives know it too - they have been insisting for years now that EU treaties should be ratified by referendums. Yet it seems to suit both their purposes to pay lip service to the idea that our democracy is protected by a supremely powerful Parliament. It is time we shook them out of their complacency.