This, too, needs restructuring for the future.
LECTURE EIGHT: I FORMULA FIVE: SUCCESSOR PARLIAMENTS (Cont.)
Parliamentary debate is, for rules on the second level, the functional equivalent of the judgment of courts. The successor Parliament is in a rather similar position to a court. That is, it has before it a prior enacted rule which it, the successor Parliament, has to apply to the situation in hand. We have already seen that there is room for interpretative manouevre for courts reading legislation. We should not be surprised therefore, that successor parliaments, unfettered by any analogy with precedent, or any formal requirements of judicial reasoning, logic or consistency, may be even less constrained in their interpretation of prior enacted legislation. But howsoever free they may be, they might exhibit sufficient respect for such prior enacted legislation for us to conclude that they regard some of these rules as binding upon them to some degree. If we find that they treat these rules as worthy of respect; if successor Parliaments think of, speak of and use these rules as giving rise to obligations in some degree, then we might justifiably conclude that a Parliament can bind a successor Parliament and that sovereignty is better understood as "self-embracing" rather than "continuing".
[OHPS2] Examples: (1) an Imperial Court of Appeal: (2) Canada Bill in 1982. One might therefore conclude that there is a difference, albeit subtle, in Parliament's own attitude towards ordinary prior legislation and "constitutional" or constitutionally important prior legislation.
However, even if "bound" at all, a successor Parliament is but weakly bound. Clearly any such "binding" relationship between one Parliament and its successors is of a relative and not of an absolute nature. Let me develop an everyday example, based upon the practice of promising. Suppose you ask if I am going to be at a particular party on Saturday night. I might answer (a) Well I may (or may not) go and, if so, maybe I will see you there; or (b) I promise to see you there. Suppose further that between the time of this exchange and Saturday night, my mother dies. On the basis of answer (a) I am entirely unconstrained and can forego the party without looking for any justification; on the basis of answer (b) however, having promised to go, I need a justification for not going. My mother's death and the resultant circumstances would be a perfectly acceptable reason for breaking my promise to you and I am sure that you would understand. Notice however that my breaking this promise does not carry with it the general proposition that I do not regard promises as binding; binding they are, but they are susceptible of being overridden (in my own moral scheme of things) by matters which are morally more compelling.
Likewise with the "binding" relationship between a Parliament and its successors. An "ordinary" piece of legislation, containing no clauses relating to its future amendment or repeal is "easy" for a successor parliament to amend or repeal. Justification is either not called for at all or is very easy to provide. It is on all fours with my saying "I may (or may not) go... [to the party]" . A "constitutional" piece of legislation, containing express conditions for amendment, e.g. "for the evident utility of the subjects within Scotland" is less easy to amend in the sense that a heavier burden of justification falls upon those proposing amendment. It is as if I had said, without actually promising, "Of course I'll be at the party. Finally, amending a "constitutional" piece of legislation, containing a clause prohibiting alteration, "in all times coming" is more difficult to justify, but not impossible. It is as if I had said "I promise to see you at the party". That constitutes a commitment but one susceptible of being overridden in a range of circumstances. Thus when a successor Parliament changes a serious piece of prior constitutional legislation we cannot conclude that in general all such Parliaments regard all such pieces of legislation as not binding upon them at all. We are entitled to conclude only that this Parliament, rightly or wrongly, entertained grave reasons for such a serious change in the law. Thus Dicey (Thoughts on the Union ..., pp253-254) "A sovereign parliament ... though it cannot logically be bound to abstain from changing the law, may, by the fact that an Act when it was passed had been declared to be unchangeable, receive a warning that it cannot be changed without grave danger to the constitution of the country". It therefore seems to me that one Parliament can exert a relative binding influence upon its successors, and accordingly, that the fifth formulation as conventionally stated and understood is erroneous, subject only to my critics' response that even if all I say is true, any relative and weak binding is a matter only of convention and not of constitutional law.
6. The Bill of Rights Debate. The idea that Parliament cannot bind its successors is frequently pressed into service against proposals for a Bill of Rights. The Hon Sir John Laws, for example, in a challenging and innovative article entitled "Is the High Court the Guardian of Fundamental Constitutional Rights ?" in  P L 59, 77, states that "it is a commonplace about the possible statutory incorporation of ECHR or the enactment of a Bill of Rights, that such initiatives run into severe intellectual difficulties over the sovereignty of Parliament..." His thesis is that "the contents of the ECHR, as a series of propositions, largely represent legal norms or values which are already inherent in our law, or, so far as they are not, may be integrated into it by the judges". Judges cannot incorporate the ECHR into domestic law but they can treat decisions of the European Court of Human Rights as persuasive and take notice of the provisions of the ECHR in their "development - indeed change"  of the common law. The "ECHR jurisprudence is a body of legal material to which the common law may legitimately have regard in arriving at the right result when faced with a difficult issue involving a conflict of rights"[64-65, Cf L Templeman, in Spycatcher  1 WLR 1248, 1296F-G] and Derbyshire v Times Newspapers  1QB 770 (CA);  AC 534 (see L. Keith 551 F-H) which "is a legal landmark" .
Any genuine statutory Bill of Rights clearly seeks to limit and constrain future Parliaments. The European Convention of Human Rights and Fundamental Freedoms, the Canadian Charter of Rights and Freedoms, or the American Bill of Rights may be taken as illustrative. Basically, the big idea is that there are certain fundamentally important values such as freedom of speech, conscience, and association, and above all civil liberty, and freedom from arbitrary interference in one's person, property, and activities by governmental agencies. Thus the American Constitution famously speaks of life, liberty, and the pursuit of happiness. Such fundamental values are protected by a Bill of Rights from arbitrary amendment by a transient majority for the time being in the legislation by a device known to constitutional lawyers as "entrenchment" and that means that the amendment of such provision is made formally more difficult as, for example, being made conditional upon a qualified rather than a simple majority calling for the support of, say, two-thirds of those voting. Such an arrangement directly limits the legislature and that obviously raises intellectual difficulties in a jurisdiction wedded to the doctrine of "continuing" Parliamentary Sovereignty.
(A) But a Bill of Rights need not be established to control primary legislation. One could, wholly consistent with "continuing" Parliamentary Sovereignty establish a Bill of Rights applicable only to all forms of secondary or delegated legislation and to all administrative decisions.
(B) Again a Bill of Rights on the pre-1982 Canadian model could readily be introduced consistent with Parliamentary Sovereignty. The Canadian Bill of Rights, 1960 was enacted as an ordinary statute of the Federal Parliament. This caused some controversy as to whether it was capable of overriding inconsistent federal statutes and in the 21 years of its operation , the Bill was only once successfully invoked to render a federal statute inoperative. (R v Drybones SCR 282). Concern about the effectiveness of the 1960 Bill of Rights may well have been significant in the adoption of the Constitution Act (of Canada), 1982, which incorporates the Canadian Charter of Rights and Freedoms. The Charter expressly overrides inconsistent statutes and applies both to provincial and federal governments. The rights and freedoms protected and limitations on them are broadly similar to those of the European Convention. However S.33 of the Charter enables [the Canadian] parliament or a provincial legislature to override crucial sections of the Charter by including in the legislation an express declaration to that effect. S. 33 also contains a "sunset" clause whereby any such override will automatically lapse after five years, though such clauses can be reenacted. This necessitates regular reconsideration of any exercise of the power to override. This is a more sophisticated model than its Canadian predecessor and is the model which I had recommended for the statutory incorporation of the ECHR directly into our law, but, as you will be aware, the Human Rights Act 1998 proceeds on a different basis, much more akin to the New Zealand approach. The override power has been controversial in Canada. It has been routinely used by the (awkward) province of Quebec as a means of evading the Charter entirely, simply by including the express declaration in every provincial statute in force in Quebec. Hence I refer to "Q-clauses" as express derogations from Bills or Charters of Rights and "S-clauses" as temporal limits on such derogating clauses.
A Bill of Rights Act for Britain might have been an ordinary piece of statutory legislation in the sense that it could be altered by Parliament according to normal Parliamentary procedures. It would purport to control subsequent legislation only in so far as a subsequent statute does nor contain an express clause excluding the operation of the Bill of Rights Act. The advantage of this arrangement is that any controversial legislation, potentially harmful to civil liberties and human rights, would be expressly brought to Parliament's attention and thereby to the media and to the forum of public debate. Basically, such a Bill enacts a series of presumptions about civil liberties which the courts are to apply in their interpretation of legislation enacted before or after the Bill of Rights Act, unless a subsequent statute contains a "Q-clause".
The major difficulty with this proposal is that it runs counter not so much to ("continuing") Parliamentary Sovereignty, which can always be asserted by a "Q- clause" ousting the operation of the Bill of Rights in relation to any particular piece of legislation, but the alleged impossibility of Parliament enacting measures expressly immunised from implied repeal [OHPS3].
Of course, the value of such an anaemic or weak Bill of Rights Act is open to question; one might argue that if we are to have a Bill of Rights Act at all, it ought to be a robust, full-blooded measure and not a fudge or compromise. However, all that I am minded to argue for here is that such a Bill of Rights Act is constitutionally consistent with Parliamentary Sovereignty even on the "continuing" conception. Indeed, even a full-blooded Bill of Rights, entrenched clauses and all, is not manifestly inconsistent with "continuing" Parliamentary Sovereignty. Such a Bill by requiring, say, a two-thirds majority of the House, rather than a simple majority does not entail that Parliament cannot amend such a Bill; it merely makes amendment more difficult to achieve in practice. To override an entrenched clause, a substantial proportion of MPs must be in favour. A Bill of Rights Act providing for its own amendment only with the consent of two-thirds of those voting is therefore quite different from a Bill of Rights Act which declares certain rights inalienable and immune from change "in all times coming". This latter arrangement would be a direct challenge to "continuing" Parliamentary Sovereignty. It seems to me unnecessary to go that far.
A Bill of Rights as an ordinary piece of legislation, such as the New Zealand Bill of Rights Act, 1990, or the Canadian arrangement from 1960-1981 seems to me too weak, given the concern to protect rights. Such a Bill of Rights Act would be hostage to the doctrine of implied repeal. [e.g. "Scots go home !]. A Bill entrenched by reference to a qualified majority seems to me too strong, given our constitutional tradition. A Bill of Rights Act expressly immunised against implied repeal (including a Q-clause and a S-clause) seems to me just right. That was the view put by Lord Scarman in a lecture at Swansea in 1986 and embodied in a Bill which as reported in the Times of February 7, 1987 was counted out for lack of support [the vote being 94-16]. More recently Lord Lester's arguments to similar effect in the House of Lords are recorded in the New Law Journal of February 3, 1995, pp 141-142 and 145.
However, the Human Rights Act, 1998 did not adopt any of the above strategies. Rather it follows the logic of Lord Browne-Wilkinson's infiltration argument: "through our membership of the EEC a wide range of activities enjoy the same protection as a full bill of rights would confer" . For Lord Browne-Wilkinson a full bill of rights "confers on the individual certain fundamental rights which cannot be over-ridden even by Act of Parliament" . So a very strong claim is being made: "It seems therefore that, in those areas affected by the EEC Treaties, the ECHR is already incorporated into English domestic law"  i.e. before enactment of the Human Rights Act 1998
He contrasts that conception with "a half-way house" Bill of Rights which would declare the existence of certain fundamental human rights, infringement of which by the executive would constitute a legal wrong. In the absence of clear and precise statutory enactment, it would be presumed that Parliament in passing legislation does not intend to infringe on these fundamental rights. But a half-way Bill would "stop short of giving the courts power to invalidate an Act of Parliament"  and "the common law of this country could provide much of the protection that a half-way Bill would provide" . Indeed for Lord Browne-Wilkinson, "... for most practical purposes a half-way Bill of rights is all that is needed to preserve personal freedom". Well, I remain sceptical unless by half-way Bill is meant a Bill of Rights Act weakly entrenched by express immunity from implied repeal with or without a "Q-clause" and a "S-clause". Even such a weakly entrenched Bill grants courts power to invalidate Acts of Parliament, so I think, though falling short of a so-called full Bill of Rights Act, it goes further than half way - i.e. a Bill of Rights Act expressly immunised from implied repeal with or without a "Q and S clauses" would be in Lord Browne-Wilkinson's language "a three-quarters" Bill of Rights Act [OHPS4]
On my spectrum, Lord Browne-Wilkinson's proposal is over-started as a half-way Bill, it is at most a quarter-way Bill of Rights Act. So he is a minimalist as to reform which is slightly odd, because on his "infiltration" argument, the ECHR through European Union Law give full protection in some areas of domestic law, a fortiori if British courts can disapply Acts of Parliament inconsistent with EC Law. In non-European areas of domestic law citizens would, on Lord Browne-Wilkinson's proposal in his own terms, enjoy only half the protection. That seems anomalous and it encouraged me to advocate a Statutory Bill of Rights, Q-claused (and perhaps S-claused) which would offer equal protection of the laws to all citizens, irrespective of whether the matter was one with a European dimension, or one wholly of domestic law. That is not an argument that I won. The Human Rights Act 1998 adopts Lord Browne-Wilkinson's approach.
Lord Browne-Wilkinson's argument however disposes of one hoary fallacy: that British judges, lacking experience in the interpretation and application of Human Rights documents would lack the skill or competence to apply any Bill of Rights Act. The first response to this competence argument is the suggestion that increasingly the common law has come to coincide with the terms of the ECHR (eg Derbyshire v Times) A second response is that our senior judges have heard many appeals in their capacity as members of the Privy Council and these appeals sometimes, as in Guerra v Baptiste (Times Nov 8, 1995), raise human rights issues sometimes in a poignant form. There it was held that to execute an appellant after a lapse of four years and ten months between the imposition of the death penalty and completion of the domestic appellate process would constitute cruel and unusual punishment contrary to rights enshrined in the constitution of the Republic of Trinidad and Tobago.
II FORMULA SIX: DIVISIBILITY AND EUROPE The Sixth and Final Formulation is that Sovereignty is Indivisible (or Illimitable). These characteristics of sovereignty have their origins in Austinian analytical jurisprudence and were inherited by English Constitutional Theory in general. The attribution of these qualities to Parliamentary Sovereignty is vitiated by the same defect as infects the fourth formulation (omnipotence); namely it turns upon a confusion between sovereignty as absolute power and as supreme legislative authority. As a matter of strict logic an absolute power cannot be limited, nor any supreme organ constrained by any other institution, because it would then lose its absolute supremacy. Equally, at the level of logical analysis if ultimate authority is divided between two or among several organs, no one organ can truly be regards as sovereign.
However, as a matter of legal logic, the supreme legislative organ, if such there be, must "limited" at least by such manner and form rules as define its legislative activity. Again, in some legal systems, notably America, law making powers are divided between or spread our amongst several different federal and state organs, including federal and state legislatures and Supreme Courts. So it is a matter of "co-ordinate magistrates" and distribution (not separation) of powers.
In modern debates, this formulation is sometimes used to resist the implementation of a full blooded Bill of Rights, seeking to limit Parliamentary law making but I shall use this formulation as a platform from which to launch my final salvo against the doctrine of Parliamentary Sovereignty. The alleged illimitability and/or indivisibility of Parliamentary Sovereignty seems disproved by British Membership of the European Communities which involves a diminution in the law making competence of Parliament and, under the principle of "subsidiarity", a sharing of the law making process. Member states enjoy a power, whether by legislation or judicial interpretation, to adapt community law to their local and cultural circumstances. Community law is capable of a variable application as amongst member states, and that so-called "margin of appreciation" implies that the law making process is shared between Community institutions and domestic institutions.
In Blackburn v Attorney-General,  1 WLR 1037, 1039, Lord Denning observed, "Much of what Mr Blackburn says in quite correct. It does appear that if this country should go into the common market and sign the treaty of Rome, it means that we will have taken a step which is irreversible. The sovereignty of these islands will henceforth be limited . It will not be ours alone, but it will be shared with others ... many regulations made by the European Economic Community will become automatically binding on the people of this country: and that all the courts of this country including the House of Lords will have to follow the decisions of the European Court in certain defined respects such as the construction of the treaty". Under the strict theory of continuing sovereignty Parliament "could" repeal the European Communities Act 1972, withdraw from the community, and shake off community law, whatever the political and economic consequences. But, at present, the UK is a member of the EC, a supra-national organisation, and is subject to its rules.
Basically the limitation argument turns upon the very special nature of this international organisation. Normally, international law and agreements between the UK and other states only become part of UK law by way of "incorporation" by way of statute and indeed if there is a conflict between a statute and an international treaty, the statute prevails as in R v Miah  1 WLR 683,694. But the EC is a unique type of international organisation, which unlike all others, creates laws and obligations which prevail over earlier or later domestic law in the case of conflict. Because the EC is a unique type of international organisation transcending the domestic law of all nation states which are members, including the UK, then there is a significant legal limitation on Parliament; and Sovereignty as Austin, Dicey, and Wade proclaimed it, is dead.
According to the European Treaties certain provisions laid down by community organs are directly applicable in member states. Community organs can and do legislate for the UK. Through interpretation of the treaties by the European Court of Justice, Community Law has been held to prevail over inconsistent provisions of the domestic law of member states. Thus in Internationale Handelgesellschaft (1972) 11 CMLR 255, 283 the court stated "No provision of municipal law, of whatever nature they may be, may prevail over Community Law ... lest it be deprived of its character as Community Law and its legal foundation endangered". Similarly in Costa v ENEL, 1964 Eur Ct Rep, 585, 593 the Court had stated, "The EEC Treaty has created its own legal system which [has become] an integral part of the legal systems of member states and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community, the member states have limited their sovereign rights, albeit within limited fields and have thus created a body of law which binds their nationals and themselves ... The executive force of Community Law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty".
Clearly from the view of the Community and its Court, is that in the relevant fields, its law is supreme. However the view from members states has been less clear. The Italian Court in Costa, for example, held that it had to apply national law, and in other countries, too, the supremacy argument has been slow to resolve, especially where community law conflicts, not with the ordinary law of the land, but with the provisions of a constitution which provisions, as is the case in Germany may be stated to be incapable of repeal and unalterable in all times coming. In the UK s 2(1) of the European Communities Act, 1972 provides that community law shall be given legal effect in the UK and s 2(4) states that "any enactment passed or to be passed ... shall be construed to have effect subject to section 2(1)"
This means that community law prevails over statutes enacted after 1972. At the very least the doctrine of implied repeal is thereby subverted because a later UK Act of Parliament has to be construed as subject to prior EEC law and by virtue of the prior enactment of the European Communities Act, 1972 and therefore, so long as membership of the European Communities endures, Parliamentary Sovereignty as Dicey knew it is dead So, too, is Maughan's proposition in Ellen Street Estates that it is impossible to excluded implied repeal by express enactment.
The dificulty in all this is, however, that community law, like parliamentary legislation, is hostage to the interpretation, construction and application of the courts and it is the domestic courts of the several member states which interpret construe and apply community legislation. Consequently, by restrictive or perverse interpretation the courts can subvert the alleged supremacy of community law. The principle of subsidiarity is a double-edged sword. The treaty makes were well aware of this risk and by Art 177 domestic courts and tribunals were enabled to refer preliminary question to the Court of Justice for a ruling on Community Law and such rulings are deemed binding on domestic courts and tribunals. UK courts initially exhibited a reluctance so to refer issues for interpretation and indeed in their extra judicial capacity eminent judges in the UK eg L Diplock and L Denning (in a rare instance of agreement) urged that UK courts should use such references sparingly. Indeed, in spite of L Denning's apparent enthusiasm for Community Law as revealed in H P Bulmer v Bollinger S A  Ch 401 where he referred to community law in a much quoted passage as "an incoming tide" - his opinion, so far as Art 177 references are concerned seemed more directed towards stemming the ride than opening the flood gates ! Art 177 provides that inferior courts may refer an issue to the European Court of Justice for interpretation and where a decision is that of a "court or tribunal against whose decision there is no judicial remedy under national law", such reference must be made. This L. Denning thought would apply only to the House of Lords in its judicial capacity and even then such a court would enjoy an element of discretion whether or not to refer, because it would have to interpret the phrase "necessarily involves a point of community law". This is L Denning as the King Canute of Community Law (The North Atlantic Ocean beat Mrs McTavish, and European Community Law beat Lord Denning).
Thus to the question: "Is UK or EC Law supreme?" the answer is that from the point of view of community organs and the treaty, EEC law is supreme (and therefore Parliamentary Sovereignty is dead) but from the point of view of domestic courts, the matter remains open to some doubts, such courts initially having sought to prefer domestic law over community law where an opportunity presented itself. Nonetheless domestic courts have increasingly recognising the supremacy of community law, so that Parliamentary Sovereignty has been crumbling and with this tendency confirmed in the minds of many by the Factortame decisions, Parliamentary Sovereignty is now thought to have crumbled. [NB Craig v Finnis]
As to divisibility of sovereignty, the EEC is conclusive. Sovereignty is now divided between EEC organs and the UK Parliament by reference to the subject matter of the legal rules. But the "indivisibility" of sovereignty has never been, other than at the level of pure conceptual analysis, a very persuasive thesis. It runs counter to any distribution or separation of powers doctrine or ideal and even to the Rule of Law. Thus Joseph Raz, Practical Reasons and Norms, p 130 "... some legal systems include more than one ultimate legislative authority. They include several legislators such that the authority is not derived either from a norm [i.e. legal rule] made by the other or from a norm [i.e. legal rule] which confers power on the other. In Britain for example the authority of Parliament is not derived from the common law, nor the authority of the common law from Parliament. Yet the common law confers in effect norm-creating powers on the courts and these are not derived from parliamentary legislation". I am not wholly convinced by these propositions, even though they come with the authority of so great a legal theorist. Why should we not say that the powers of Parliament are conferred by common law rules and that the common law is the ultimate constitutions foundation (e.g. Dixon); or that it really is the case that courts are the creatures of Parliament (e.g. L. MacKenzie). But these are jurisprudential debates for another day. All I want to draw from this today is that it is at least possible to regard common law and statute as separate systems of law and if so, as I hinted in my treatment of formulations 3 & 4 , it s possible to regard sovereignty as divided between the legislature and the judiciary (Laws & Sedley "co-sovereignty"; Donaldson's "finishers and polishers") and then, of course, Parliamentary Sovereignty again appears as a mirage because it is the common law constitution and not Parliament that is sovereign and the common law judges are the custodians of that constitution.
Conclusions [OHPS5] Thus whether one treats of Parliamentary Sovereignty as one doctrine or several, it is shot through with inconsistencies. Further, Parliamentary Sovereignty nowadays too often is shorthand for the Sovereignty of the Commons - which means Cabinet Government - and the doctrine therefore provides a cover for arbitrary not legal rule contrary to the understanding and intention of Dicey. In historical terms when the common law judges joined with the parliamentarians they were proclaiming the supremacy of law over the monarch "Be ye never so high the law is still above you". That was a bold proclamation, which had as its effect the freeing of the subject from the arbitrary tutelage of the Monarch. Thus, historically, Parliamentary Sovereignty emerges as an engine of liberty, or regularity and the Rule of Law. The passage of time has radically changed the operation of the doctrine because now, by proclaiming the Sovereignty of Parliament the courts are declaring themselves powerless to protect the citizen from the machinations of government, which controls the organ to which the judges - on the traditional doctrine - must bow the knee
Far from protecting the citizen from arbitrary tutelage, the doctrine now operates to place the citizen ever more completely in the hands of government. The doctrine is therefor not only shot through with intellectual inconsistencies, it also serves as an ideological screen to hide just how little protection of human rights and civil liberties there is within the traditional British system ... and how much we are all in Britain dependent on the government of the day ... and how the courts must fail on the traditional view adequately to protect the citizen. That the courts have hitherto succeeded (in part) is a tribute not to the constitutional arrangements but to the ingenuity of (some of) the judiciary. Ironically, as cases like R v Offen  Crim LR 63 illustrate, the same interpretive techniques as achieved some creditable results in the past may now be deployed to deliver less that comprehensive results.