Adam Tucker
Parliamentary sovereignty has been characterised as the “central organising principle” and “focal point” of the constitution. But it is a doctrine of striking absolutism with uncompromisingly hard edges: it asserts that there is nolaw that Parliament cannot make, that no other body can override or set aside Acts of Parliament (and so on). Yet in practice a range of issues are now considered sufficiently important that ways have been found to soften those hard edges and carve out protections against legislative infringement.
Important constitutional principles (like the rule of law and access to the courts) are protected by common law principles of interpretation, capable of challenging and even overriding the intention of Parliament. Human Rights are protected by both a procedural mechanism designed to bring embarrassing attention to legislation compromising them and a statutory principle of interpretation capable even of overriding Parliamentary intention. The autonomy of the devolved legislatures is protected by a convention constraining Parliament’s legislative authority over devolved matters. And, most famously of all, our membership of and even departure from the European Union involved judicially enforceable statutory limits on Parliament’s legislative power. These are just the most prominent of a complex array of techniques limiting Parliament’s legislative authority without (overly) trespassing on the core status of parliamentary sovereignty.
This post argues that we should think of the procedural rules exemplified in the parliamentary processes of King’s Consent and English Votes for English Laws (EVEL) as a further part of this constitutional tradition.
I realise that my two examples are not promising starting points for fruitful analysis. King’s Consent is a constitutional aberration, which grants the King an inappropriate opportunity to intervene in the legislative process. It should be abolished. And EVEL is widely seen as an idiosyncratic failure– it was abolished, without the House of Commons even needing to vote, after a debate which saw it attacked across party lines – “baffling” (Conservative), “completely pointless” (Labour) and a ”absolute and utter disgrace” (SNP). Nevertheless, I want to suggest that their shared core is worth further attention, as a model for a potentially constructive addition to our repertoire of techniques for limiting parliamentary sovereignty. In this post I (i) characterise that shared core, (ii) briefly consider its possible features and finally – very tentatively – (iii) suggest two areas where it might be sensibly deployed.
The shared core of King’s Consent and EVEL
King’s consent is a rule of parliamentary procedure which gives the King a power to intervene in the passage of certain proposed legislation. It is found in Erskine May, which provides (for Bills to which the process applies):
If the [King’s] consent has not been obtained, the question on the third reading of a bill for which consent is required cannot be proposed
EVEL was a rule of parliamentary procedure which gave English MPs an additional opportunity to scrutinise certain proposed legislation. It was enacted through a change to the Standing Orders of the House of Commons, which provided (while EVEL was in force, for Bills to which the process applied):
A Consent Motion which gives consent…must be passed by the legislative grand committee…before a motion may be made for the third reading of the bill.
Each (obviously) have greater depth and breadth than these extracts reveal – in terms of when they apply, the processes they involve etc. But these extracts capture their shared core, and the features of each that I want to focus on here.
The key point is that both have the same structure: they create a veto process, and if that veto is wielded then the proposed legislation concerned cannot pass through all the stages of the legislative process or, in other words, the proposed legislation cannot become law. Furthermore, each is a binding rule of parliamentary procedure rather than, say, mere guidance. A bill which required, but had not yet received, EVEL consent could not proceed. And a bill which requires, but has not received, King’s consent cannot proceed. So the Deputy Speaker did not merely chooseor exercise a discretion to refuse Tan Dalyell’s attempt to secure a third reading for his Military Actions Against Iraq (Parliamentary Approval) Bill in 1999 – he was compelled to:
Queen’s consent has not been obtained…As the House knows, and as “Erskine May” … makes plain, without Queen’s consent, I cannot propose the question (emphasis added)
Both, then, are prescriptive elements of the law and custom of Parliament with the capacity to prevent legislation completing its passage through Parliament. As a result, they engage the first limb of most influential definitions of Parliamentary Sovereignty, which claims that there is no legislation which Parliament cannot pass. At present that element of parliamentary sovereignty is false to the extent that Parliament cannot pass legislation which requires, but has not received, King’s consent. And from 2015 until 2021 it was also false to the extent that Parliament could not pass legislation which required, but had not received, consent under EVEL. Procedural vetos like these soften the hard edges of parliamentary sovereignty. We should consider the possibility that a better use can be found for this technique than these two examples.
Two characteristics of procedural vetos
As we saw above, there are many other ways to circumvent the less desirable consequences of parliamentary sovereignty. They are hard to measure against each other because they work in different ways and have virtues (and vices) in different dimensions. I will mention only two such dimensions of procedural vetos here: their force, and the place they occupy on the political-legal spectrum.
First, their force, by which I mean the degree to which they can be suspended or overridden (when this is very difficult it even begins to make sense to use the language of entrenchment). In this dimension, procedural vetos are extremely flexible. At one end of the spectrum, a procedural rule could be vulnerable to easy circumvention or abolition. For example, when the government decided to abolish EVEL this was very straightforward to achieve with a simple motion in the Commons. But a procedural veto could be designed to be slightly more entrenched – for example the EVEL procedures could have been drafted so that, say, any motion proposing their abolition or suspension was itself subject to the consent procedure, making them more problematic to circumvent. A procedural veto could even be fully entrenched, that is protected by its own provisions against even legislative override. Indeed, the prevailing opinion amongst parliamentary lawyers seems to be that King’s consent is entrenched in this way – that a statute abolishing King’s consent would itself require King’s consent. Whilst in my view this position is extremely problematic with regard to that specific example, it would clearly be possible to craft a veto which more clearly functioned in that way. The upshot is that procedural vetos, as a technique, are very flexible in terms of their force – and therefore in terms of the scale of the obstacle that they present to a government which intend to promote legislation which would violate whatever value or principle they protect. They can be used to impose very soft or very hard limits on Parliament’s capacity to legislate.
Secondly, procedural vetos are more a political than a legal mechanism. Admittedly they seem mildly legalistic: they are part of the law and custom of parliament, they are authoritative rules which depend on tying categorisation to consequence (and so on) – to the extent that legal advice is involved in their application and operation. Nevertheless, the existence, continuation and negotiation of the limitation they impose on Parliament remain firmly in the political arena. The respect of and survival of EVEL were political questions, and its fate rested on politics. The respect of and survival of King’s Consent are political questions, and its fate rests on politics.
These are promising characteristics. Carefully crafted and appropriately deployed (King’s Consent is, and EVEL was, neither) procedural vetos have the potential to be a valuable addition to the constitution’s set of techniques to soften parliamentary sovereignty.
Two possible uses of the mechanism
I want to close by suggesting, very tentatively, two contexts in the contemporary constitution where it might be appropriate to deploy procedural vetos to restrict parliament’s capacity to make law.
First, as a replacement for the Sewel convention, which is designed to protect the legislative autonomy of the devolved legislatures against infringement by Parliament. It is (despite being put on a statutory footing) a purely political constraint, but it is also weak and easily circumvented. Yet it would be relatively straightforward to craft a procedural rule obstructing, say, the passage of legislation certified to trespass on devolved competencies without a statement that the necessary consent had been obtained. This form of procedural veto would maintain the content and political nature of Sewel, whilst buttressing its force. It need not be entrenched at all – even as a simple veto it would have greater force than the present Sewel Convention because it would at least impose a procedural hurdle (say, passing a circumvention motion) on a government promoting legislation in breach of Sewel. This approach has been referred to before (in different contexts by Alistair Carmichael MP and by Ian Loveland) although not in detail. It is a proposal which merits being taken more seriously.
Secondly, as an alternative to the rule in Anisminic and Privacy International, which constitutes a wide and judicially-imposed limitation on parliament’s legislative authority, preventing it – almost entirely – from successfully enacting provisions ousting the jurisdiction of the courts over executive action. This rule achieves a justifiable aim, but it also moves into the legal arena an issue – the appropriate scope of Parliament’s power to enact ousters – that might more appropriately be tackled in the political domain. A procedural veto could be crafted so as to maintain the existing strength of this rule (especially in core cases) but with the additional virtue of returning to the political domain the broader question of the appropriate limits of legislated ousters.
To summarise: Parliamentary sovereignty is not always desirable, in fact a whole variety of ways are often used to circumvent its requirements. Whilst King’s Consent and EVEL are not, in themselves, successful examples of this kind of process they are nevertheless instances of an approach which might be harnessed more successfully in other contexts including, perhaps, as an alternative approach to the Sewel convention and to the rule in Anisminic and Privacy International.
Dr Adam Tucker is Senior Lecturer in Law at the University of Liverpool.