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![Leo Varadkar](/https/www.telegraph.co.uk/content/dam/news/2023/12/21/TELEMMGLPICT000360588574_17031554440890_trans_NvBQzQNjv4BqfzOMAl0Xij9hZ3C3ekNETVUo7BdMuH_4WL_JvvDwfJI.jpeg?imwidth=680)
The Irish government has announced that it is to bring an interstate case against the UK, under the provisions of the European Convention on Human Rights. The case is aimed not at specific executive actions of ministers, but a piece of legislation that would draw a line under the Troubles and halt inquests, enquiries and criminal proceedings concerning crimes or actions committed during that time. The Irish government is challenging not only the content of that law but the UK Government and Parliament’s right and power to make it.
We can debate the legislation itself and its wisdom (including the hypocrisy of the Irish state, which has not pursued or investigated crimes committed in the Republic’s own territory during the Troubles). The action of the Irish government, though, raises and clarifies an issue that goes beyond that specific question (as does the UK Government’s Rwanda policy). Does Parliamentary sovereignty, as traditionally understood, still exist? If, in practice, it does not, should it be restored?
This is clearly going to be the defining and central question of UK politics for the next few decades. It will be raised in connection with a whole range of apparently unconnected issues. It is the big one in debates over migration, beyond the view one takes of that particular question. It will soon become part of arguments over net zero and climate policy. It was the foundational issue in the debate over Brexit.
The traditional doctrine of the British constitution, since at least 1688, and as definitively set out by the Victorian jurist Dicey, is that “the Crown in Parliament is sovereign”. That means in practice that a majority in Parliament and that part of it chosen by popular vote has the ultimate sovereign power to make and determine the law. There is no higher power that can limit or constrain that sovereignty. The British state may choose to limit that power by entering into agreements, but it retains the ultimate right to withdraw from and reject those agreements and act as it wills. Whether those specific actions are wise or prudent is a different matter, for the political process to resolve.
The Irish government’s action shows very clearly how that traditional understanding is now challenged and in practice no longer applicable. The emergent rival view is that democratic majorities and legislatures do not have that ultimate sovereign power. It resides instead in laws and international covenants and treaties, as interpreted by judicial bodies that have the power to strike down and block government action and legislation, even when it has democratic legitimacy. This makes judges the ultimate decision-makers (as they are in the US for example).
This second view is often seen as coming from the EU, but it actually owes more to American thinking, while also deriving from traditional Catholic doctrine. Regardless of its origin, this is now the big question in politics: should ultimate power rest with (national) democratic legislatures or with laws determined by judges (often supranational)?
The Irish government’s action makes something else very clear. To assert or restore effective parliamentary sovereignty will be difficult and costly. What would it involve in this case? The Irish government has an undoubted right to bring this action, as things stand at present. This is under a series of undertakings entered into by a succession of UK governments. In addition to the European Convention (quite distinct from the EU) there are the agreements made by UK governments with their Irish counterparts, from Thatcher onwards. Notably, there is the Good Friday Agreement, which provides that the ECHR shall be in force in Northern Ireland and makes the two governments guarantors of that.
Reasserting parliamentary sovereignty in this case would mean withdrawing from and derogating these agreements. This would have far reaching and costly implications. This is the clearest case because of the very close connections between Britain and Ireland and the historically ambiguous position of Northern Ireland going right back to Partition. However, the point has wider application. Reestablishing parliamentary sovereignty would mean withdrawing from or recasting a whole series of international agreements. As Brexit shows, this will be difficult and costly, not least for international business. Ireland has once again cast a light on the most foundational divisions in British politics.
Hypocritical Ireland is making the case for the UK leaving the ECHR
We have allowed judges to become the ultimate decision-makers. Time to ask whether Parliamentary sovereignty should again reign supreme