Under traditional constitutional theory the UK parliament may pass any law it chooses to. It was not always so.
Under traditional constitutional theory the UK parliament may pass any law it chooses to.
It was not always so. Prior to the English Civil War courts, acting on behalf of the monarch, could rule legislation by parliament to be unlawful. After the parliamentarians’ victory the English courts accepted that they no longer had such power. Democracy was paramount.
But suppose that a parliament were to act in a way that was fundamentally inconsistent with democracy. Suppose that a majority of MPs could be persuaded to abolish democracy and hand absolute power to an individual or foreign power. This occurred in 1659 when Oliver Cromwell’s troops forcibly removed members of what then passed for a parliament until those who remained voted to grant him dictatorial powers under the Protectorate. It occurred in Germany in 1933 and Iraq in 1979. Would such a betrayal be law?
Modern jurists no longer believe that Britain’s unwritten constitution grants parliament unlimited power. This view was expressed by Lord Hope in the case of Jackson (2005) concerning the validity of the Hunting Act 2004: “Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament ... is being qualified.” Parliament has a wide power to make laws, but not laws “so absurd or so unacceptable that the populace at large refuses to recognise it as law".
The fundamental principle of the common law then, is recognised as not the will of parliament, but the people’s consent to be governed by that will.
Well on Brexit, as David Dimbleby put it ‘The British people have spoken and the answer is: we're out!’ Parliament can no longer claim that there exists any mandate for it to continue to allow itself to be subordinated to the European Union. If, for the first time in British history, parliament were to act against the expressed wishes of the British people through the ballot box, doing so would not merely be dishonourable and unwise: it will be unconstitutional and unlawful and will shatter the basis of parliament’s legitimacy.
Since 2016, we have been watching a slow-motion coup attempt. This coup, as Cromwell’s, Hitler’s and Saddam Hussein’s eventually did, may carry the votes of the majority of law-makers. The civil service may welcome it. The television stations may pump out pro-coup propaganda. The speaker of the House of Commons may be a puppet of its leaders, breaching the rules he is sworn to uphold. The House of Lords may be shameless in its contempt for the convention that it is a reviewing chamber with no right to overrule the outcome of a national democratic vote.
But any statute that reverses the Withdrawal Act will have neither a moral nor a legal claim on our loyalty. Nor, thereafter, would any law deriving from a regulation or directive forced upon us by the rejected European empire.
We have refused our consent to government by a parliament that makes itself a local authority under the EU; and the consequences of parliament ignoring this could be revolutionary.
Paul Ellis, Legal Spokesman