Constitutional Monarchy or Elective Dictatorship?

The responses of the UK government to the COVID-19 pandemic had an overwhelming impact on the enjoyment of basic human rights in that country.[1] This is the conclusion of Human Rights Measurement Initiative (HRMI), an international non-governmental organisation, in its 2021 human rights report. The HRMI report refers to children being treated as adults for violating lockdowns and thus facing the full application of ‘the law’. It also reveals that citizens believed to violate COVID-19 guidelines were subject to ‘arbitrary arrest’ as many police officers used the phrase ‘the spirit of the law’ to mean the detaining of people without  judicial warrant.[2]

These sobering findings are confirmed in a report prepared by Human Rights Watch (‘HRW’). It accuses the UK government of relentlessly pursuing laws and policies ‘with little regard for their impact on human rights’.[3] HRW reports that the UK government’s responses to the COVID-19 pandemic ‘highlighted its willingness to set aside human rights for the sake of political expediency and a worrying disdain for the rule of law’.[4] During the pandemic, former UK Supreme Court judge Jonathan Sumption comments:

The British state exercised coercive powers over its citizens on a scale never previously attempted. It has taken effective control, enforced by the police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country. We have never sought to do such thing, even in wartime and even when faced with health crises far more serious than this one.[5]

Unfortunately, however, such a ‘disdain for the rule of law’ does not come as a surprise for those who know how the doctrine of ‘parliamentary sovereignty’ is applied in the UK. In his 2006 Hamlyn Lectures, Sir Francis Jacobs QC, a law professor at King’s College London, commented on the implications of the concept:

Legally, it is difficult, if not impossible, to identify today a State which ‘sovereign’ legislature is not subject to legal limitations on the exercise of its powers. Moreover, [parliamentary] sovereignty is incompatible with another concept which also has a lengthy history, but which today is widely regarded as a paramount value: the rule of law.^[6]

British citizens live under a legal-institutional situation whereby Parliament is deemed ‘sovereign’ and, therefore, not subjected to the rule of law. Under the settlement shaped by the Glorious Revolution in 1689, a certain measure of protection could still be afforded under the requirement that Crown, Lords and Commons  — each of them relatively independent players  — should assent to a Bill before it became an ‘Act of Parliament’. Today, however, the constitutional role of the Crown has been reduced to a mere formality. We now know all too well that the King has no choice but to assent to every piece of legislation duly laid before him, and that he has no power even to hire or fire ministers or judges without the explicit approval of those who control the House of Commons.^[7]

In addition, under the Parliament Acts 1911 and 1949, the power of the Lords is also deeply unimpressive and one of relatively brief delay and not denial of the passage of legislation. As a result, the UK is devoid of an effective second legislative chamber and the nation’s constitutional settlement has become entirely unbalanced. Indeed, the power to restrain legislation favoured by a majority in the Commons has become virtually impossible, even when proposed legislation objectively infringes the most basic rights of the subject.^[8]

In 1714, the Hanoverian succession to the throne brought about the 123-year union between Great Britain and the German electorate of Hanover. Thanks to the Act of Settlement, the prince of Hanover, George, was the nearest Protestant eligible to take the English Crown. However, George did not speak English and found it a bore to attend such discussions which he could not follow. He rarely attended any of the Cabinet meetings, not only because he did not speak English but also due to his complete indifference for English affairs. Sir Robert Walpole then volunteered to act on the king’s behalf as his principal adviser, or, in effect, his ‘Prime Minister’. As a result, Walpole, who held the office of the First Lord of the Treasury from 1721 to 1742, became the first Member of Parliament (MP) to hold the position.^[9]

Throughout the 18^th century, the Cabinet, now exclusively comprised of MPs, became the primary feature of the Westminster system. In Britain, where even to this day there is no written (and rigid) constitution but only a collection of statutes, common law and custom that can be easily repealed by Parliament, the King remains as the Head of State, but his functions are either entirely ceremonial or to be more directly exercised by the Ministers of the Crown.^[10] One of the powers the monarch theoretically exercises is that of disallowing legislation. However, this power has been made entirely redundant and it is now a dead letter. If the King were to refuse his royal assent to an statutory law, this would be deemed unconstitutional due to the application of the doctrine of desuetude.[11]

In this context, the sovereignty of Parliament becomes a doctrine of paramount constitutional importance. In the White Paper that introduced the UK Human Rights Bill on 1 October 1997, parliamentary sovereignty is defined as follows: ‘Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes.’^[12] As stated by the late Owen Hood Phillips KC, the late Emeritus Professor of Jurisprudence and sometime Dean of the Faculty of Law in the University of Birmingham,

‘There are under the constitution of the United Kingdom no rights strictly fundamental, in the sense of entrenched (basic, inalienable), because of the supremacy of Parliament and the absence of a written constitution with entrenched provisions and judicial review of Acts of Parliament’.[13]

In other words, under no circumstance can a judge hold a statute enacted by Parliament to be invalid in light of a violation of fundamental human right. Indeed, under ‘parliamentary sovereignty’, there is no fundamental law which such Parliament cannot change via its own ordinary legislative process. Of course, Sir Edward Coke did famously state in the Dr Bonham’s Case in 1610 that ‘a statute contrary to common right and reason would be void’.^[14] However, his observation was not generally accepted even at the time it was proclaimed, since it was relied on as one of the primary reasons for Coke’s dismissal as Chief Justice of the Court of Common Pleas.^[15] As stated by the Court of Queen’s Bench in 1872:

‘There is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature superior in authority to any court of law … and no court could pronounce a judgment as to the validity of an act of parliament’.^[16]

The same understanding has been confirmed by Tom Bingham, who was first Lord Chief Justice of England and Wales:

‘The courts have no inherent powers to strike down, supersede or disregard the provisions of an unambiguous statute duly enacted by the Queen in Parliament, and in indeed, an extremely limited power to enquire whether a statute has been duly enacted. For Parliament may under our constitution enact any legislation it chooses, and no court has any power to annul or modify such enactment, it necessarily follows that Parliament can legislate so as to abrogate or infringe any human right, not matter how fundamental it may be thought to be’.^[17]

Since there is no legal-institutional mechanism for holding the parliamentary government to account, the effect is that such a government is accountable to no one, except once in five years at general elections.[18] As can be seen, it is no wonder why so many rights of the individual can be ignored and violated in that country. The current legal-institutional design operating in the UK facilitates what Lord Hailsham properly described in his 1976 Dimbleby Lecture as an ‘elective dictatorship’.^[19] This was because of the enormous power acquired by a government with an overall majority in the House of Commons. And even if Lord Hailsham’s warning about elective dictators might have been an overstatement in 1976, many commentators now agree with his assessment. 

Augusto Zimmermann is professor and Head of Law at Sheridan Institute of Higher Education, in Perth, Western Australia. He is a former Director of Postgraduate Research (2011-2012 and 2015-2017) and Associate Dean, Research (2010-2012) at Murdoch University. During his time at Murdoch, Dr Zimmermann was awarded the University’s Vice Chancellor’s Award for Excellence in Research in 2012. He is also a former Commissioner with the Law Reform Commission of Western Australia (2012-2017), and President of the Western Australian Legal Theory Association (WALTA). Dr Zimmermann is the author of numerous academic articles and books, including ‘Foundations of the Australian Legal System: History, Theory and Practice’ (LexisNexis, 2023, forthcoming).

[1].    Human Rights Measurement Initiative, United Kingdom: Human Rights During the Pandemic (Report, 2021) <https://humanrightsmeasurement.org/2021-united-kingdom-spotlight>.

[2].    Ibid.

[3].    Human Rights Watch, ‘United Kingdom: Events of 2021’ in World Report 2022 (Report, 2022) <https://www.hrw.org/world-report/2022/country-chapters/united-kingdom>.

[4].    Human Rights Watch, ‘United Kingdom: Events of 2020’ in World Report 2021 (Report, 2021) <https://www.hrw.org/world-report/2021/country-chapters/united-kingdom>.

[5].    Jonathan Sumption, Law in a Time of Crisis (Profile Books, 2022) 218.

[6].    Francis Jacobs. The Sovereignty of Law: The European Way (Cambridge University Press, 2007) 5.

[7].    Tom Bingham, The Rule of Law (Penguin Books, 2011) 12.

[8].    Ibid 169.

[9].    Sir Ivor Jennings, The Queen’s Government (Penguin Books, 1954) 98.

[10].  Peter Boyce, ‘Magna Carta and the Parliament’ (2015) The Western Australian Jurist 218, 222.

12. O Hood Phillips and Paul Jackson, O Hood Phillips’ Constitutional and Administrative Law (Sweet & Maxwell, 7^th ed, 1987) 137.

[12].  United Kingdom, ‘Rights Brought Home: The Human Rights Bill’ (Cm 3782, 1997) para 2.13.

[13].  Phillips (n 12) 423.

[14].  (1610) 8 Co Rep 113 b, 118a; 77 ER 646, 652.

[15].  Bingham (n 8) 163.

[16].  Ex parte Canon Seluryn (1872) 36 JP 54 (Cockburn CJ and Blackburn J).

[17].  Bingham (n 8) 162.

[18].  Sumption (n 6) 220.

[19].  Q Hogg, A Sparrow’s Flight (HarperCollins, 1990) 318.