The Sovereignty of Parliament Today

Abstract

THE recent decision of the Supreme Court of South Africa in Harris v. Diinges,' declaring the Separate Representation of Voters Act, 1951,2 to be void, has raised questions of no less significance in the field of law than in the political field, and no less in the United Kingdom than in the Union of South Africa itself. The reasoning in this case (if it is to be accepted, as, it is here submitted, it ought to be accepted) calls in question the traditional form of the doctrine of the legal sovereignty or supremacy of Parliament, and appears to suggest that the sovereignty of Parliament is not the permanent and unchanging constitutional rule that generations of English lawyers, brought up on the reasoning of Dicey, have come to accept as axiomatic. While we are not here concerned with the metaphysical conception of sovereignty, it must be admitted that this examination must appear to partake of the nature of the mediaeval theological inquiry as to the omnipotence of God in posing the problem Can God create for Himself an impossible task? If He can do so, so it is reasoned, then the impossibility of that task must mean that God is not therefore omnipotent; if He cannot create such a task, there is something which He is unable to do and He is not therefore omnipotent. Therefore God is not omnipotent. Likewise if Parliament is sovereign, there is nothing it cannot do by legislation; if there is nothing Parliament cannot do by legislation, it may bind itself hand and foot by legislation; if Parliament so binds itself by legislation there are things which it cannot do by legislation; and if there are such things Parliament is not sovereign. It is the purpose of this study to attempt to decide how valid this reasoning is. The problems raised by Harris v. Diinges resolve themselves under two main heads, namely (1) What is the juridical basis of parliamentary sovereignty; and (2) To what extent (if at all) can one Parliament bind succeeding Parliaments? It will be submitted that the answer to (1) is that parliamentary sovereignty (which is, after all, legislative sovereignty) depends on judicial determination in exactly the same way as any other question of law; and to (2) that Parliament is capable of binding its successors by legislation of two kinds, viz., legislation affecting the existence, constitution, or composition of Parliament itself and legislation dealing with the procedure of law-making.