BI-POLAR SOVEREIGNTY RESTATED

Abstract

The debate about sovereignty can be seen to take two different paths. One path might be termed the practical debate, for it is concerned with the practical question of whether, or when, a sovereign Parliament may bind itself. The terminology of legislative is sometimes used instead of sovereignty, as in the decision of the House of Lords in R. (Jackson) v. Attorney General.1 There the substance of the question remained the same, but the form was altered slightly and concerned the differences between continuing legislative supremacy and self-embracing legislative supremacy.2 Here, the terminology of sovereignty rather than will be employed because the relevant arguments are more usually couched in these terms. The second path might be termed the theoretical or true sovereignty debate, for it is concerned with the related question of when, or whether, a sovereign may be legally subject to its own rules. At first sight, the second path looks to deal with precisely the same issue as the first, but the theoretical debate is importantly separate. For, in reality, the practical question of legislative is a question of the powers of the sovereign body. The theoretical debate goes to the logically prior question of how sovereignty is to be conceived. It will be argued here that the best way to understand sovereignty in England and Wales3 is to recognise the dual sovereignty of Parliament and the courts. A consideration of the analysis of Sir Stephen Sedley is invaluable to understanding the argument. Bi-polar sovereignty