Sovereignty, The Rule of Law and The Nature of Legislation: Reconceptualising the traditional ultra vires theory

This article criticises the commonly-held view that parliamentary sovereignty are autonomous, and potentially conflicting, principles, a view I label the ‘autonomous conception’. Proponents of the autonomous conception tell us that, when the two principles conflict, courts must ‘finesse’ or ‘qualify’ sovereignty in order to defend the rule of law. This does not amount to abandoning sovereignty, we are told, because Parliament remains able to legislate contrary to fundamental principles by using ‘express language or necessary implication’.

I highlight three problems with the autonomous conception. Firstly, ordinary statutory interpretation, in both private and public law cases, involves determining the meaning of an enactment in light of constitutional principle, and so there is no reason to associate unqualified parliamentary sovereignty with a reading that ignores rule of law considerations. Secondly, the idea that Parliament must use ‘express language’ to sanction a violation of the rule of law can only provide a principled standard for statutory interpretation if understand it as a presumption about what Parliament should be taken to intend, rather than a doctrine that qualifies parliamentary intent. Thirdly, the autonomous conception treats the rule of law as a freestanding political value which the courts must create rules to protect, and thus engages the courts in a legislative rather than adjudicative role.

More fundamentally, I argue that the autonomous conception is tacitly premised upon the discredited Austinian conception of legislation as command. In fact parliamentary sovereignty entails, not the power to issue commands, but to govern through law, that is, through generally binding rules that constrain the behaviour of citizens and government alike. This leads us to a revitalised version of the traditional ultra vires theory, in which the principles of judicial review are understood as flowing from the courts’ attempt to remain faithful to Parliament’s intention to create discretionary power within a system generally controlled by law.