Parliament, sovereignty and the paradox of the political constitution

Keith Ewing has made an outstanding – indeed, an inspiring - contribution to the way in which we perceive and understand the United Kingdom’s (still) political constitution, both in theory and in practice. In this chapter, however, I will take as my point of departure what in my view is a tension between two claims that he has made about that tradition. The first is made in defence of Parliamentary sovereignty, which for Ewing is the ‘core legal principle of the political constitution,’ and this, he says, for two reasons. First, because it defines the power of the legislature itself, having evolved to become ‘no more and no less than the legal principle underpinning the political principle that there should be no legal limit to the wishes of the people.’ Second, because Parliament, in the exercise of its legislative function, delineates the proper scope of lawful executive action. Seen in this light, Ewing defends judicial review on traditional ultra vires grounds as being ‘not so much a usurpation of the sovereignty of Parliament as its vindication, to the extent that the courts do not permit Ministers or others to stray beyond their Parliamentary mandate.’ For Ewing, the problem of judicial review (against which so much of modern political constitutionalism has been defined) emerges where judicial activism has gone further than this in order to wash through (and by implication to constrain) progressive social and economic legislation and government action with conservative common law values. For these reasons, Ewing found it frustrating that JAG Griffith, in his seminal 1978 Chorley Lecture, The Political Constitution, paid such little attention to the principle of Parliamentary sovereignty, because Ewing found it difficult to see how a political constitution could operate without it. Indeed, Griffith’s only explicit reference to the principle in that lecture was to deny – contra contemporaneous challenges – that the sovereignty of Parliament was amongst the constitutional vices of the time.