Public Law

03 Eleftheriadis_24

6/9/09

10:31 PM

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Parliamentary Sovereignty and the Constitution

Pavlos Eleftheriadis The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement without parallels in comparative constitutional law. By giving unconditional power to the Westminster Parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are carefully limited by their respective constitutions. Parliamentary sovereignty is thus seen as a unique feature and a result of the unwritten constitution. I shall call this the ‘classic’ view. Nevertheless, a closer look at the theoretical presuppositions of parliamentary sovereignty shows that this conclusion is unsustainable. If parliamentary sovereignty is to be a legal doctrine (and not a sociological or historical observation), it must rely on a list of powers that belong to parliament as an institution. These legal powers are organised in powers and disabilities and are thus both empowering and limiting. In other words, all legally organised parliaments have limited powers. The Westminster Parliament has constitutionally limited powers, very much like its German and American counterparts. The classic view is based on Dicey’s understanding of sovereignty in terms of a hierarchical order of power, or a scheme of delegation. It follows from the idea that for a constitution to be higher law it needs to be backed by a special, distinct and higher pouvoir constituant. Nevertheless, this classic view can be seen to lead to a well-known problem. The doctrine of parliamentary sovereignty appears to be the only thing that parliament cannot change. But then what does it mean to say that parliament is omnipotent? Here is something that it cannot do, namely, change the terms of its own power. Its powers appear thus to be in some sense permanent. There is no lawful...