Guy Steward: Parliamentary Sovereignty

Some politicians have been groomed to look, think, act, and talk like politicians, but their smiling public façade hides a tyrant in the making. If you scratch the surface enough the veneer drops and their true, despotic colours emerge. These are the unyielding, resolute autocrats, the dedicated globalists. Our system, unfortunately, suits them as much as a dictatorship would.

Then there are the politicians who are so because they carry the potential for statesmanship. These are a breed of patriots willing to put up with the crap and the flak because they are in it for the long haul, out of love for their country. Our system doesn’t particularly favour them.

New Zealand swings to and fro from “centre right” to “centre left” and then back again – a two-party democracy safe for the two-faced double talkers on both sides. The few minor parties who get to throw in their weight are disparagingly dismissed as “nutter parties”.

It’s all about an idea called “Parliamentary sovereignty (or supremacy)”.

This doctrine has held sway for a few hundred years, crossing over easily from England to its colonies and dominions. Its opposite, “popular sovereignty”, as in America where legitimate power was meant to come from the will of the people, hasn’t had much more success, one of the challenges being to understand what it really means for “the people” to be sovereign.

Parliamentary sovereignty is problematic because it prevents electors after an election from having any significant say in how their countries are governed. It comes across in different ways, some barely perceptible and some overt. One US President (Obama) in a 2014 address to European youth in Belgium referred to it as “an older, more traditional view of power” that contended that “ordinary men and women are too small-minded to govern their own affairs, that order and progress can only come when individuals surrender their rights to an all-powerful sovereign”. Obama here, it should be stated, correctly saw it as a threat and was contrasting it with the idea of power being derived from the consent of the governed. 

Indeed, the idea is not new. From the Middle Ages until the last of the Stuart Kings, the word of the king was supreme. That was “divine right” or royal sovereignty. Then, after the English Civil War and the Glorious Revolution of 1688-9, Parliament took over the role and royal sovereignty turned into Parliamentary sovereignty or the Crown-in-Parliament. Law-making supremacy that originally lay in the monarch ended up in parliament.

It had a certain purpose, as it broke some of the hitherto despotic aspects of monarchy and ensured that any inconsistencies amongst judges or within the law itself could be overridden if necessary. The buck had to stop somewhere.

But it was not without its legitimate challengers. Sir Edward Coke affirmed early on that the common law was supreme over both king and parliament: “Magna Carta is such a fellow that he will have no sovereign”, he said, essentially asserting that the common law was a God-given hedge against the natural urge of humans, especially of politicians, to power-monger. The laws of God, of nature, and of the constitution limited the authority of the sovereign, whoever or whatever that was to be.

Eventually the doctrine took hold though, and philosophers such as Thomas Hobbes endorsed it in books such as Leviathan. He said that because humans are essentially only interested in self-preservation and possess an animal instinct to destroy each other, resulting in “solitary, poor, nasty, brutish, and short” lives, that therefore they should handover their rights to a single source of power, be that a ruler or an assembly of rulers. For Hobbes, the best form of government was still absolutist monarchy.

In contrast, Enlightenment philosopher John Locke argued that the power of the state was to be in the people. Individuals, as he thought, began as a “blank slate”, and as free and equal beings. In community they naturally gravitate towards mutuality, peace, and good will. Rulers should rule by consent, as servants of the people, and government should be based on reason and tolerance with separated powers. Any state interference should only be if absolutely necessary. Even with authority remaining in the legislature, if a government was to subvert its own purpose of protecting life, liberty, and property then rebellion was acceptable, a concept obviously influential on the early American founders.

The fully-fledged two-party system did not emerge in England until the second half of the nineteenth century, prior to which it was a proto-two-party system of two groups of political aristocrats, one supporting the Crown, the other opposing (the Tories and the Whigs). The English 1832 Reform Act ensured that the political system would be chosen by a party and not a king. The king in the executive was consequently replaced by a Prime Minister.

Later reform bills enlarged the number of votes in elections for the House of Commons and suffrage was settled in England in 1928 with everyone over twenty-one getting the vote. As the franchise grew, so did public opinion, a threat to both Whigs and Tories. One worried reform opponent opined that the voice of the people might end up becoming “irresistible”, and indeed over time public meetings, petitions, and associations became so widespread that parties of power and privilege had to prepare to bow to the people’s voice.

Parliamentary sovereignty or the “single source of power” idea found another advocate with the English Whig jurist, Albert Venn Dicey (1835 – 1922). The product of a kindly but rigorous homeschooling, Dicey wrote Introduction to the Study of the Law of the Constitution, and the ‘Dicey standard’ became the norm for the United Kingdom and other countries like ours. It had three basic principles. First, Parliament was to be the supreme lawmaking body and so could enact laws on any matter, i.e., it could make or unmake any law it liked. Second, no parliament could be bound by a predecessor or could bind a successor. Third, no person, or body, including a court of law, could question the validity of a parliament’s enactments.

The second principle makes sense. But how Parliament became the supreme lawmaking body was through the prevailing will of the electors who asserted themselves in the franchise. They give a government its mandate and then, once in power, it can do whatever it wants – within reason, for theoretically under an honest voting system it risks losing another term if it alienates them. In principle, the legal sovereignty of Parliament should be subordinate to the nation’s political sovereignty and limited by its accountability to the electorate.

We have seen here in New Zealand, however, how easily a “single source of power” can style itself as a “single source of truth”. So Dicey recognised two limits to Parliamentary sovereignty. The external limit was if a large number of the public disobeyed or resisted the laws. The internal limit was the nature of those in sovereignty, for as he stated, “even a despot exercises his powers in accordance with his character, itself moulded by circumstances under which he lives”. Those circumstances could include cultural settings, social conditioning, political environment, upbringing or education or a lack thereof. All could influence or potentially limit power. The principle remained that a truly representative government ought to be able to prevent too wide a discrepancy between the wishes of the “sovereign” and the wishes of its subjects. And the key was how much it was truly representative and how much it respected its common law and constitution.

Dicey acknowledged that “if the doctrine of Parliamentary sovereignty involves the attribution of unrestricted power to Parliament, the dogma is no better than a legal fiction”.

He also wrote that “there are many enactments . . . which Parliament never would and (to speak plainly) never could pass”. The old argument went, “If a legislature decided that all blue-eyed babies should be murdered . . . legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.”[1] Some might say that we have a significant problem today of both those – madness and idiocy. Dicey also clearly could not have anticipated the current context of global elites and corporations through enticements and rulings placing massive pressure on countries to conform to their agendas.

Our challenge as we look another election in the face again is of course what will happen afterwards. We’re so used to the system we’ve had. Is it possible to have more checks on this deep-rooted two-party system, or is it beyond hope? Referenda, including citizens-initiated ones, even if indicative and non-binding, may still be valuable, although previous efforts to make them a regular part of our system have not been encouraging. Or we could arrange an environment to inspire again the development of independents, committed to placing their electorate’s interests before any personal, ideological, or party interests. Or some other system.

One jurist debunked the supremacy rule ( “Parliamentary sovereignty is no longer, if it ever was, absolute”[2]) and argued that “the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”[3], a debateable idea.

Regardless, those with power must be reminded somehow to remain within the terms of that power, and to serve the people by ensuring their ancient rights and laws. Ideas like Parliamentary sovereignty don’t easily submit to modification. But limits are needed, especially when there are those around who actually think that “ordinary men and women are too small-minded to govern their own affairs”. (Of course, small-mindedness is not so uncommon today but arguably that could be because it appears to have been almost deliberately cultivated.)

Most if not all elected representatives in New Zealand, whatever their party, have some awareness, even if only subconscious, of the concept of Parliamentary Supremacy, and it would be worthwhile at this point in time for them to carefully consider the sort of tensions this can create, such as distrust and cynicism. Could it be time for a review of the whole idea?

Guy Steward is a musician and writer, recently retired from full-time teaching.

[1] Stephen, Leslie Science of Ethics. New York: G.P. Putnam’s Sons, 1907, 137.


[2] Lord Hope, in Jackson v Attorney General.


[3] Ibid.