This essay is in response to C. J. S. Knight's 'Bi-polar sovereignty restated'. Knight argues that, "the best way to understand sovereignty in England and Wales is to recognise the dual sovereignty of Parliament and the courts. "1 This essay will take the alternative view to Knight, namely that a system of dual sovereignty is unfeasible. Is there an overlap between the Legislature and the Judiciary? Knight is correct in acknowledging that the role of Parliament and the Judiciary overlaps2. He notes that, "vast swathes of law are entirely judgemade.
"3This is clear from previous decisions from the judiciary such as the case of R v R4 where the House of Lords abolished a longstanding notion of a husband's immunity from criminal liability for raping his wife. The Human Rights Act 1998 in particular allows judges to interpret legislation as far as possible in order to make it compatible with Convention rights5. This provides judges with the possibility to interpret Parliament made law in ways, which they see fit. Therefore, this raises the possibility that judges can make law. This position is enhanced from the fact that judges may develop the common law.
For example, in Shaw v Director of Public Prosecutions6 the House of Lords held that the publisher of prostitutes' services was guilty of the offence of conspiracy to corrupt public morals. This offence was previously unknown, and Parliament did not overrule the Lords' decision. Therefore, it is possible for the Judiciary to make law, which shows that Knight is correct to assume that there is an overlap between the Judiciary and Parliament. In a practical sense, Parliament and the Judiciary do share power because Parliament makes law, whereas the Judiciary can develop that law through the common law.
Therefore, both branches of the English system can make law, which shows that there may be an overlap. Is there dual sovereignty between Parliament and the Judiciary? Although Knight is correct to say that the roles of Parliament and the Judiciary may overlap, he is incorrect in stating that there is bi-polar sovereignty between the two branches. This is because, it is impossible to state that two bodies can both be sovereign. This essay will now show how Knight's view of a dual sovereignty is not practical. Let us first assess the definition of sovereignty.
Sovereignty refers to one body having supreme power. Therefore, this highlights the first problem of Knight's position. It is not possible that two bodies can both be sovereign because this would mean that neither can be supreme over the other. If neither body can be supreme over the other, this shows that the term sovereignty is inapplicable where two bodies have the same power. Therefore, Knight seems to misuse this term. It is not an accurate reflection of the concept of Sovereignty, to use the phrase "bi-polar sovereignty".
7 One might even go so far as stating that the phrase "bi-polar sovereignty" contradicts itself. It is conceived that Parliament and the Judiciary both make laws in practice. However, it is clear from cases that where the Judiciary exercises its law making powers, and questions Parliament, there may still be conflict. For example, in A v Secretary of State for the Home Department8 the UK government derogated from the right to liberty9 and passed an Act which allowed for the detention of non-nationals if the Home Secretary believed that they were international terrorists10.
The House of Lords declared that this was discriminatory and issued a declaration of incompatibility. In reply to this decision, Ministers commented that the judiciary had overstepped their boundary in deciding that the Act was incompatible. Therefore, this case shows that dual sovereignty is not feasible in practice, because Parliament still criticise courts even where the judiciary act in a sovereign way. This emphasises the point that two bodies cannot be sovereign, because there will inevitably be conflict. Furthermore, the concept of dual sovereignty is in direct conflict with the concept of separation of powers.
The separation of powers is a constitutional principle consisting of three branches, the Legislature, the Executive, the Judiciary. It involves the notion that the three branches must be separate from one another, and neither can overlap the other branch. Therefore, the fact that Knight comments that may be dual sovereignty between the Legislature and the Judiciary, is a direct threat to the separation of powers principle. It infringes that principle. Conclusion The dual sovereignty concept, which Knight accepted, cannot practically exist within any system.
It has been outlined that "bi-polar sovereignty" is a phrase, which in itself cannot fit together. Sovereignty is a concept, which involves one body possessing supreme power, which cannot be possible for two bodies. Knight may be correct in the idea that the roles of Parliament and the Judiciary overlap, because both bodies have the potential to create law. However, in order to be sovereign, one body must be able to exercise higher powers than the other body. Therefore, one cannot use the phrase "dual sovereignty" to suggest that the Judiciary and Parliament are sovereign because literally that is not possibly, nor is it possible in practice.
It is accurate for Knight to contend that Parliament and the Judiciary share power, because in practice, that is what occurs. Yet both bodies cannot be sovereign in the sense that Knight argues (dual sovereignty). It would be more feasible to state that there is an interchangeable sovereignty between the Judiciary and Parliament, because in some situations Parliament may be sovereign, whereas in other situations, judges might be sovereign (e. g. in Human Rights cases).