Category Archives: Authority

The Draft Scotland Bill and Parliamentary Sovereignty: Legal and Political Effects

Image by drgillybean

Image by drgillybean

Following the completion of the Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament, Mark Elliott has written a pointed piece on the legal and political effects, which he argues must be strictly separated.

The Draft Scotland Bill would insert into the Scotland Act 1998 a new section 1(1A) providing that:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

Elliott argues that it is unclear whether “any provision purporting to make the Scottish Parliament permanent would be worth the paper upon which it was printed” due to the doctrine of Parliamentary sovereignty, the absoluteness of which he sees as having been confirmed by LJ Laws in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151: “Being sovereign, [the UK Parliament] cannot abandon its sovereignty.” Elliott believes that given Parliamentary sovereignty, the provision would “lack any legal effect whatever” and that “its consequences are likely to be entirely symbolic.”

Disagreeing somewhat with Elliott, Kenneth Campbell QC does not believe that one can dismiss the legal effects of the proposed legislation so easily, given recent UK Supreme Court rulings. On one important level, this disagreement hinges on the rule of recognition governing how legal rules are recognised within a state. Campbell is right to highlight that in the UK, our rule of recognition is that “whatever the Queen-in-Parliament enacts is law.” It follows, says Campbell, that if this is correct, then the proposed changes should be expected to have legal effects. Here, Campbell suggests that rulings of the UK Supreme Court since devolution may now be pointing towards a tentative recognition that Parliamentary sovereignty may be becoming more limited in a domestic context, quite apart from the already understood and accepted limits imposed by the effects of EU law and the Human Rights Act 1998.

Campbell writes:

“Judicial recognition of constitutional statutes since Thoburn v Sunderland City Council [2002] EWHC 195(admin) [2003] QB 151 has been cautious, but has been affirmed by the Supreme Court, and specifically in the context of devolution: BH v Lord Advocate [2012] UKSC 24; 2012 SC(UKSC) 308, per Lord Hope para 30. Likewise, again in devolution case-law before the Supreme Court, Lord Hope expressly left open the question of whether the supremacy of the UK Parliament is absolute or may be subject to limitation in exceptional circumstances:AXA General Insurance v Lord Advocate [2011] UKSC 46; 2012 SC(UKSC) 122, paras 50 & 51.”

Concluding, Campbell argues that:

“Taking the Supreme Court case-law together with the ‘Scotland clauses’, I suggest that a definite and entirely domestic boundary of Parliamentary supremacy is emerging. That is the meaning and intent of these clauses of the Scotland Bill.”

The interesting aspect of the divergence of views, as I see it, is between Elliott’s theoretical distinction between political (or symbolic) effects and legal effects on the one hand, and on the other, Campbell’s belief as a practising advocate and barrister that what constitutes legal effects must also include (a) legislative intent, (b) how the highest UK court now interprets that intent, and (c) the legitimacy that comes from political recognition of devolution.

Something that Professor Neil MacCormick wrote in 1995 seems relevant here:

“Legal authority […] is empty without general acceptance in a society of the decisions taken by those in authority. Without the backing of political power this cannot practically be achieved.” [1]

Overall, it seems to me that Neil MacCormick’s view on the relationship between legal authority and political authority supports Campbell’s belief that we cannot simply judge the proposed Scotland Bill according to either positive law, or on pre-devolution and Diceyan understandings of Parliamentary sovereignty. We must also recognise that as the constitutional ground continues to move below our feet following the independence referendum, how we judge the ‘legal effects’ may depend much more on what is seen as politically legitimate than we have perhaps been used to before in the UK.

Image courtesy of drgillybean

[1] Neil MacCormick, ‘Sovereignty: Myth and Reality’, Scottish Affairs, 11 (1995). p.4.

David Miles is a Carnegie Scholar researching Anglo-American and German constitutionalism and is an Associate Fellow at the Centre for Global Constitutionalism. He is also Managing Editor of Global Politics Magazine and is a contributor for the Scotsman, the Daily Beast and Huffington Post. 

Could parity principle for UK nations on EU referendum veto be basis for reformed second chamber?

Will Self has written a cogent, pointed, and important piece in the New Statesman which echoes some of the points made by Sir David Edward about the House of Lords and parliamentary sovereignty in his recent lecture at St Andrews. Self takes aim at the House of Lords and argues, following  Professor Colin Kidd, that reform of the Lords could adopt the model of Germany’s upper house, the Bundesrat, as a legislative chamber representing the nations and perhaps regions of the United Kingdom.

One key question, picking up on the post-referendum tensions, will be whether a new upper house for the UK should be constituted on a basis which accords equal representation to the four constituent nations of the United Kingdom, or at least provides a veto to each nation on important issues? The immediate political test for whether reform of the upper house might proceed on such terms may occur when the bill for an EU referendum comes before Parliament. The SNP has promised to table an amendment to any EU referendum bill requiring that any decision to leave the EU must be backed by a majority of voters in each of the four nations of the UK. While the reaction from eurosceptic Conservatives and UKIP would be predictably hostile, David Cameron could see such a veto amendment as a political lifeline, allowing him to criticise the EU as much as he wishes, safe in the knowledge that there are unlikely to be majorities in all four nations to leave the EU. Whether, as Will Self implies, there would be the political will among the UK parties to entrench permanent constitutional parity between the four nations in a reformed UK second chamber, perhaps through a veto or super majority provision, remains to be seen.




Hierarchy in International Relations

Hierarchy in International Relations

The first event in this area was a workshop held on 16 March 2012 focused on the work of Professor David Lake of the University of California, San Diego. The workshop, held in conjunction with the Centre for the Study of Political Violence and Terrorism, focused on Professor Lake’s scholarship on international authority. Participants spoke from a wide variety of disciplinary and geographical perspectives.

Hierarchy in International Relations? (PDF, 158 KB)

Hobbes and Law: The Past in the Present

Hobbes and Law: The Past in the Present

This workshop, held at the University of St Andrews on 10 July 2013, will explore ideas of law in the work of Thomas Hobbes, both in his context and today. Rather than the precursor to Austin’s positivism, Hobbes’ theory of law puts across a much more complex understanding of law. The workshop will focus on law’s relationship to authority, justice and  equity; the distinction between natural, civic, divine and international law; and meaning of obligation and punishment. Confirmed speakers include Larry May, Patricia Springborg, Tom Sorell, Alan Cromartie and Juhana Lemetti. Anyone interested in the workshop should contact the organizer, Dr Gabriella Slomp.

James Wilson and Constitutionalism

James Wilson and Constitutionalism

The Centre has an ongoing interest in the political and legal theory of James Wilson, the St Andrews graduate, American founder, and key drafter of the American constitution. On 30 March 2012, Director Anthony F Lang, Jr presented a talk St Andrews alumni in San Francisco on the importance of Wilson’s thought both in its context and today. In 2014, Dr Lang will be speaking at a conference on Wilson’s thought to be held at the University of Pennsylvania.

James Wilson presentation: Constitutional Theory for the Modern World(PDF, 1,528 KB)

Political Constitutionalism

Political Constitutionalism

The Centre cosponsored a workshop on Political Constitutionalism organized by Glasgow Caledonian University and held at their London Campus on 7-8 June 2012. The workshop explored the nature of political constitutionalism and will result in a publication of the selected papers in 2013.