the doctrine of parliamentary sovereignty essay

1    Introduction

This book is a collection of essays with four main themes. The first is criticism of the theory known as ‘common law constitutionalism’, which holds either that Parliament is not sovereign because its authority is subordinate to fundamental common law principles such as ‘the Rule of Law’, or that its sovereignty is a creature of judge-made common law, which the judges have authority to modify or repudiate (Chapters 2, 3, 4 and 10). The second theme is analysis of how, and to what extent, Parliament may abdicate, limit or regulate the exercise of its own legislative authority, which includes the proposal of a novel theory of ‘manner and form’ requirements for law-making (Chapters 5, 6 and 7). This theory, which involves a major revision of Dicey’s conception of sovereignty, and a repudiation of the doctrine of implied repeal, would enable Parliament to provide even stronger protection of human rights than is currently afforded by the Human Rights Act 1998 (UK) (‘the HRA’), without contradicting either its sovereignty or the principle of majoritarian democracy (Chapters 7 and 8). The third theme is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, which strongly defends the reality of legislative intentions, and argues that sensible interpretation and parliamentary sovereignty both depend on judges taking them into account (Chapters 9 and 10). The fourth is a demonstration of the compatibility of parliamentary sovereignty with recent constitutional developments, including the expansion of judicial review of administrative action under statute, the operation of the HRA and the European Communities Act 1972 (UK), and the growing recognition of ‘constitutional principles’ and perhaps even ‘constitutional statutes’ (Chapter 10). This demonstration draws on the novel theory of ‘manner and form’, and the account of statutory interpretation, developed in Chapters 7 and 9.

The English-speaking peoples are reluctant revolutionaries. When they do mount a revolution, they are loath to acknowledge – even to themselves – what they are doing. They manage to convince themselves, and try desperately to convince others, that they are protecting the ‘true’ constitution, properly understood, from unlawful subversion, and that their opponents, who wear the mantle of orthodoxy, are the real revolutionaries. 1 They appear certain that their cause is not only morally righteous, but also legally conservative, in that they are merely upholding traditional legal rights and liberties.

Today, a number of judges and legal academics in Britain and New Zealand are attempting a peaceful revolution, by incremental steps aimed at dismantling the doctrine of parliamentary sovereignty, and replacing it with a new constitutional framework in which Parliament shares ultimate authority with the courts. They describe this as ‘common law constitutionalism’, ‘dual’ or ‘bi-polar’ sovereignty, or as a ‘collaborative enterprise’ in which the courts are in no sense subordinate to Parliament. 2 Or they claim that the true normative foundation of the constitution is a principle of ‘legality’, which (of course) it is ultimately the province of the courts, rather than Parliament, to interpret and enforce. 3 But they deny that there is anything revolutionary, or even unorthodox, in their attempts to establish this new framework. They claim to be defending the ‘true’ or ‘original’ constitution, ‘properly understood’, from misrepresentation and distortion. 4 And they sometimes accuse their adversaries, the defenders of parliamentary sovereignty, of being the true revolutionaries. 5

The fictions of the courts have in the hands of lawyers such as Coke served the cause both of justice and of freedom, and served it when it could have been defended by no other weapons … Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the courts for his Majesty’s personal determination. But no achievement of sound argument, or stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief Justice … The idea of retrogressive progress is merely one form of the appeal to precedent. This appeal has made its appearance at every crisis in the history of England and … the peculiarity of all English efforts to extend the liberties of the country … [is] that these attempts at innovation have always assumed the form of an appeal to pre-existing rights. But the appeal to precedent is in the law courts merely a useful fiction by which judicial decision conceals its transformation into judicial legislation. 6

In an earlier book, I set out to refute various philosophical errors and dispel several historical myths concerning the doctrine of parliamentary sovereignty. 7 Prominent among these errors and myths are the beliefs that the doctrine of parliamentary sovereignty: (a) is a relatively recent development, no older than the eighteenth century; (b) supplanted an ancient ‘common law constitution’ that had previously limited Parliament’s authority; (c) is a creature of the common law that was made by the judges and can therefore be modified or even repudiated by them. But it is possible, as Ian Ward has observed, that even if I was right, ‘truth matters little in a politics of competing mythologies’. 8 I take him to mean that lawyers and judges who find the doctrine of parliamentary sovereignty morally objectionable, and are committed to bringing about its demise, are unlikely to be either able or willing to assess objectively the historical evidence and jurisprudential analysis that I presented – or perhaps even to acknowledge their existence. The mythology of common law constitutionalism is indeed very difficult to dispel. Scholarly works continue to perpetuate it while ignoring the weighty arguments and evidence to the contrary. 9

The desire to clothe legal revolution in the trappings of legal orthodoxy is not, of course, peculiarly British. Constitutional debates reminiscent of those in Britain today took place in France between 1890 and the 1930s. Before 1890, the French legal system was firmly based on the principle of legislative sovereignty, which had been established during the French Revolution and the rule of Napoleon. But after 1890, leading public law scholars began to revive natural law ideas, arguing that the legislature was bound by an unwritten higher law, which the judges were capable of discerning and ought to enforce. According to a recent account, these neo-natural law ideas were ‘functionally equivalent to rule of law notions in Anglo-American legal theory’. 10 These scholars waged a persistent campaign to convince judges, first, ‘that they were juridically required to exercise … substantive judicial review’, and secondly, ‘that the judges had already begun doing so, but apparently did not yet know it’. 11 The basis of the second claim was that a number of judicial decisions supposedly made complete sense only if higher, unwritten constitutional principles were assumed to exist. As one of these scholars argued in 1923, the judges ‘without expressly admitting it, and perhaps without even admitting it to themselves, have opened the way to judicial review’. 12 This campaign was making headway until the publication of a book that explained how the American Supreme Court had stymied democratic social reform by reading laissez faire principles into its Constitution, and warned that French judges might follow suit. This book had an enormous impact, and routed the campaign in favour of judicially imposed, higher law principles. 13

The most obvious reading is that certain judges are staking out their position for future battles. They do fear that Parliament and governments cannot be trusted in all circumstances to refrain from passing legislation inconsistent with fundamental rights, the rule of law or democracy. When a case involving such ‘unconstitutional legislation’ arises they want to be in a position to strike it down without appearing to invent new doctrine on the spot. They want to be able to say that they are applying settled constitutional doctrine. Jackson may then be a useful precedent … Jackson may [also] be viewed as a shot across the government’s bows. 17

The claims of the dissenters could prove self-fulfilling if they are repeated so often that enough senior officials are persuaded to believe them. And this could happen even if these officials are persuaded for reasons that are erroneous (such as that common law constitutionalism was true all along). If that happens, original doubts about their correctness will be brushed aside as irrelevant, and the law books will be retrospectively rewritten. After revolution, as after war, history is written by the victors. If the legal revolution succeeds, it will not be acknowledged to have been a revolution. It will be depicted either as a judicial rediscovery of ‘hitherto latent’ restrictions on Parliament’s powers that the law always included, 22 or as the exercise of authority that the judges always had to continue the development of the ‘common law constitution’.

This book includes further efforts to resist the legal revolution sought by the common law constitutionalists. Chapter 2 presents historical and philosophical objections, and Chapters 3 and 4 respond to arguments based on the political ideal known as ‘the rule of law’. The first section of Chapter 10 is also relevant to this theme. I attempt to show that Parliament has been for centuries, and still is, sovereign in a legal sense; that this is not incompatible with the rule of law; and that its sovereignty is not a gift of the common law understood in the modern sense of judge-made law. It is a product of long-standing consensual practices that emerged from centuries-old political struggles, and it can only be modified if the consensus among senior legal officials changes. Furthermore, it ought not to be modified without the support of a broader consensus within the electorate. The recent Green Paper titled The Governance of Britain ends on the right note: constitutional change in Britain as significant as the adoption of an entrenched Bill of Rights or written Constitution requires ‘an inclusive process of national debate’, involving ‘extensive and wide consultation’ leading to ‘a broad consensus’. 23 Such changes should not, and indeed cannot, be brought about by the judiciary alone.

If radical change is to be brought about by consensus, legislation will be required. Chapters 5, 6 and 7 discuss problems relating to Parliament’s ability to abdicate or limit its sovereignty, or to regulate its exercise through the enactment of requirements as to the procedure or form of legislation. Chapter 5 reviews all the current theories of abdication and limitation, and advocates an alternative based on consensual change to the rules of recognition underlying legal systems. The theories of A.V. Dicey, W. Ivor Jennings, R.T.E. Latham, H.W.R. Wade and Peter Oliver are all subjected to criticism. Chapter 6 is a detailed account of the influential decision in Trethowan v. Attorney-General (NSW) , 24 which is often misunderstood and misapplied in discussions of ‘manner and form’. This account reveals the difference between the ‘manner and form’ and ‘reconstitution’ lines of reasoning that were first propounded in that case, and shows that much of the majority judges’ reasoning was dubious. Chapter 7 draws on the previous two chapters to propose a novel theory of Parliament’s power to regulate its own decision-making processes, by enacting mandatory requirements governing law-making procedures or the form of legislation. In passing, it discusses the somewhat different issues raised in Jackson v. Attorney-General , 25 which involved what is called in Australia an ‘alternative’ rather than a ‘restrictive’ legislative procedure. The novel theory of restrictive procedures that is proposed differs from the ‘new theory’ propounded by Jennings, Latham and R.F.V. Heuston, and from the neo-Diceyan theory of H.W.R. Wade. It rejects a key element of Dicey’s conception of legislative sovereignty, and the popular notion that the doctrine of implied repeal is essential to parliamentary sovereignty. Chapter 7 concludes with the possibly surprising suggestion that a judicially enforceable Bill of Rights could be made consistent with parliamentary sovereignty by including a broader version of the ‘override’ or ‘notwithstanding’ clause (s. 33) in the Canadian Charter of Rights, which enables Canadian parliaments to override most Charter rights. Chapter 8 examines this topic in more detail, analysing the relationship between the judicial protection of rights, legislative override, legislative supremacy and majoritarian democracy.

Chapter 9 is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, which argues that legislative intentions are both real and crucial to avoiding the absurd consequences of literalism. It also describes and criticises the alternative ‘constructivist’ theories of interpretation defended by Ronald Dworkin, Michael Moore and Trevor Allan. It acknowledges the frequent need for judicial creativity in interpretation, including the repair or rectification of statutes by ‘reading into’ them qualifications they need to achieve their purposes without damaging background principles that Parliament is committed to. The intentionalist account is further developed in Chapter 10, where it is shown to be crucial to the traditional justification of presumptions of statutory interpretation, such as that Parliament is presumed not to intend to infringe fundamental common law rights, and also crucial to the defence of parliamentary sovereignty against other criticisms.

Chapter 10 is a lengthy defence of parliamentary sovereignty against recent criticisms that it was never truly part of the British constitution, or is no longer part of it, or will soon be expunged from it. The Chapter begins with some historical discussion, and then considers at length the consequences of recent constitutional developments, including the expansion of judicial review of administrative action under statute, the operation of the European Communities Act 1972 (UK) and the HRA, and the growing recognition of ‘constitutional principles’ and possibly even ‘constitutional statutes’. It argues that none of these developments is, so far, incompatible with parliamentary sovereignty.

The once popular idea of legislative sovereignty has been in decline throughout the world for some time. ‘From France to South Africa to Israel, parliamentary sovereignty has faded away.’ 26 A dwindling number of political and constitutional theorists continue to resist the ‘rights revolution’ that is sweeping the globe, by refusing to accept that judicial enforcement of a constitutionally entrenched Bill of Rights is necessarily desirable. To be one of them can feel like King Cnut trying to hold back the tide.

This book does not directly address the policy questions raised by calls for constitutionally entrenched rights. For what it is worth, my opinion is that constitutional entrenchment might be highly desirable, or even essential, for the preservation of democracy, the rule of law and human rights in some countries, but not in others. In much of the world, a culture of entrenched corruption, populism, authoritarianism, or bitter religious, ethnic or class conflicts, may make judicially enforceable bills of rights desirable. Much depends on culture, social structure and political organisation.

I will not say much about this here, because the arguments are so well known. I regret the contemporary loss of faith in the old democratic ideal of government by ordinary people, elected to represent the opinions and interests of ordinary people. 27 According to this ideal, ordinary people have a right to participate on equal terms in the political decision-making that affects their lives as much as anyone else’s, and should be presumed to possess the intelligence, knowledge and virtue needed to do so. 28 Proponents of this ideal do not naively believe that such a method of government will never violate the rights of individuals or minority groups. But they do trust that, in appropriate political, social and cultural conditions, clear injustices will be relatively rare, and that in most cases, whether or not the law violates someone’s rights will be open to reasonable disagreement. They also trust that over time, the proportion of clear rights violations will diminish, and ‘that a people, in acting autonomously, will learn how to act rightly’. 29 Strong democrats hold that where the requirements of justice and human rights are the subject of reasonable disagreement, the opinion of a majority of the people or those elected to represent them, rather than that of a majority of some unelected elite, should prevail. On this view, the price that must be paid for giving judges power to correct the occasional clear injustice by overriding enacted laws, is that they must also be given power to overrule the democratic process in the much greater number of cases where there is reasonable disagreement and healthy debate. For strong democrats, this is too high a price.

What explains the loss of faith in the old democratic ideal? I am aware of possible ‘agency problems’: failures of elected representatives faithfully to represent the interests of their constituents. In many countries this is a major problem. But I suspect that in countries such as Britain, Canada, Australia and New Zealand, the real reason for this loss of faith lies elsewhere. There, a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionate, impartial and carefully reasoned manner. Even though the upper-middle class dominates the political process in any event, the force of public opinion still makes itself felt through the ballot box, and cannot be ignored by elected politicians no matter how enlightened and progressive they might be. Hence the desire to further diminish the influence of ‘public opinion’.

If I am right, the main attraction of judicial enforcement of constitutional rights in these countries is that it shifts power to people (judges) who are representative members of the highly educated, professional, upper-middle class, and whose superior education, intelligence, habits of thought, and professional ethos are thought more likely to produce enlightened decisions. I think it is reasonable to describe this as a return to the ancient principle of ‘mixed government’, by re-inserting an ‘aristocratic’ element into the political process to check the ignorance, prejudice and passion of the ‘mob’. By ‘aristocratic’, I mean an element supposedly distinguished by superior education, intellectual refinement, thoughtfulness and responsibility, rather than by heredity or inherited wealth.

University of Bristol Law School Blog

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The Models of Parliamentary Sovereignty

By Mr Marc Johnson , Teaching Associate in Law (University of Bristol Law School).

The concept of Parliamentary Sovereignty (also referred to as Parliamentary Supremacy and Legislative Supremacy) deals with several concurrent principles and this makes it a complicated concept to grasp in its entirety. Coupled with this, the media portrayal of this subject through the campaigns on the referendum on exiting the European Union often gave a disingenuous or incomplete view of the Sovereignty of Parliament and as such there are many misconceptions.

This blog piece will address those misconceptions by setting out the models of Parliamentary Sovereignty. These models attempt to explain the way which sovereignty operates, though it may not have escaped the reader’s attention by this blog’s conclusion that each model has positive and negative attributes. This blog offers some opinion on each model of sovereignty to incite further discussion and debate on the topic. 

Parliamentary Sovereignty and the UK Constitution

It is important to note that Parliamentary Sovereignty is a multi-faceted concept consisting of several concurrent powers which are often in tension with one and other. For example, the constitution of the United Kingdom (UK) is unique, having developed into its current form over the preceding millennia. [1] In addition to this unique development, the UK’s constitution is also not codified into a single document. Both the development of the UK’s constitution, and its uncodified, semi-written status cause difficulty when attempting to appreciate what Parliamentary Sovereignty consists of. Furthermore, it is proposed that Parliament is still changing; it is slowly adapting to meet the needs of society as society itself evolves. Parliamentary Sovereignty and the UK’s constitution are separate entities that are connected by their common subject matters. In addition to this, discussions on the sovereignty of Parliament often centre on the theoretical models of Parliamentary Sovereignty. However, the will of Parliament and sovereignty in action are both tangible matters. This juxtaposition between legal theory and the practicalities of Parliament’s work is one reason why this area is often difficult to fully grasp. To understand the nature of Parliamentary Sovereignty, it is necessary to understand the theoretical ideas that exists around sovereignty and understand their limitations or criticisms.

Doctrines of Parliamentary Sovereignty

The orthodox doctrine is the classic understanding of what Parliamentary Sovereignty is. It could be thought of as a dictionary definition of Parliamentary Sovereignty. This doctrine states that the UK (Westminster) Parliament is supreme, and it has unlimited power to legislate on whatever it sees fit. As such, it is asserted by this doctrine that no one can set aside an Act of Parliament. [2] A problem with a dictionary definition of any sorts is that it is often vague; the orthodox doctrine is no different. This view of sovereignty presents a paradox ; if Parliament has unlimited power to legislate, then it can create an Act of Parliament which limits Parliament’s own power. However, in limiting its power it is no longer supreme therefore it cannot limit its power as Parliament is always supreme. Ergo , Parliament is not supreme because it cannot limit its own power; in doing so it will no longer be supreme. The same argument can be made for Parliament enacting legislation which permanently disbands itself; in doing so Parliament would no longer be supreme and so the orthodox logic fails.

Following this same logic, it could be questioned whether, using the orthodox doctrine, Parliament could enact a law which cannot be repealed or is very difficult to repeal (requiring more than a simple majority which is currently the case). These types of laws are referred to as being absolutely and contingently entrenched respectively. This idea of a law becoming absolutely entrenched (cannot be repealed or amended) or conditionally entrenched (conditions on its repeal or amendment) will assist with understanding the models of sovereignty which try to expand on the orthodox doctrine seen above. [3]

Models of Parliamentary Sovereignty

Model 1 – Sovereignty and the Constitution

This model is closest to the orthodox doctrine and, overall, is supportive of Dicey’s view. The main aspects of this model are:

• Parliament is always sovereign and as such it cannot limit its own powers;
• The courts are required to give effect to the most recent expression of Parliament’s will;
• Express repeal is where a more recent Act of Parliament states that an earlier Act is repealed. This shows that Parliament cannot (according to this model) bind itself as it can repeal any Act it has created.
• Implied repeal is where a more recent Act of Parliament contradicts an earlier Act, but it does not expressly repeal the earlier Act. Again, this shows that Parliament’s repealing powers are not limited to express repeals but also where a court can establish that the will of Parliament has changed by a later Act. See Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.

There are some issues which arise when looking at this model. Firstly, it does not deal particularly well with the ideas of absolute and contingent entrenchment, vis-à-vis laws that have generally been thought of as carrying some special status making them somewhat beyond reproach (that is, Acts of a constitutional character, such as the Bill of Rights [1688], Human Rights Act 1998, European Communities Act 1972 and the Parliament Acts 1911-1949). However, repealing these Acts would have serious consequences on the way that the UK operates. For example, s.3(1) of the Human Rights Act 1998 says “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Therefore, subject to some caveats , this section requires the courts to read all previous and future legislation compatibly with an individual’s Convention rights.

This provision is somewhat contrary to the ideas of express and implied repeal in that any future will of Parliament must be read in conjunction with (and be compatible with) the provisions in the Human Rights Act 1998. It could be argued that this is a limitation of future Parliament’s abilities to create law. It could also be argued to the contrary that the continuing existence of s.3(1) of the Human Rights Act 1998 simply shows that the will of Parliament has not changed, and that each successive Parliament agrees to maintain the original status and intention of the Human Rights Act 1998 because each successive Parliament chooses not to alter the Act. In a sense this amounts to a skewed form of continuing Parliamentary acquiescence as to the content of the statute book up to the present day. There are enormous political consequences that could ensue if constitutional Acts such as those mentioned were changed; however, the political aspects to sovereignty warrants a discussion piece of its own.

Another discussion on the limitations of this theory can be found in relation to the Parliament Acts 1911-1949 when the court heard the case of R(Jackson) v Attorney – General [2005] UKHL 56. This case concerns the House of Commons’ ability to pass a Bill to the Crown for Royal Assent without the consent of the House of Lords. In terms of sovereignty, this was an important case as it questioned whether Parliament had the authority to change the way law was created. In the absence of a codified constitution setting out how law is made in the UK, Parliament (being supreme) can change the manner in which law is made and can alter the balance of power between the House of Lords and the House of Commons. When discussing the Queen in Parliament, it is often easy to gloss over the fact that Parliament is bi-cameral. Whether the Houses are free to decide how power is shared between them is arguably not so much a legal as a political or conventional question. The House of Commons has a democratic mandate being the elected house and so any change in the balance of power between the two Houses can only be in favour of the Commons. It is politically inconceivable that more powers would be handed to the House of Lords following a century of curtailment of its powers. Therefore, is Parliament supreme or is the House of Commons supreme?

Model 2 – Manner and Form Theory

Model 2 is somewhat of a half-way house; it develops the rigid ideas that exist in Model 1 and the orthodox theory and attempts to moves towards a more pragmatic view of sovereignty. The main aspects of this model are:

• Parliament can set rules on how it should make law in the future;
• Parliament can make it more difficult for laws to be amended or repealed;
• Parliament cannot make it impossible for a law to be amended or repealed;
• All laws are of equal authority and standing no one Act is above any other.

There is a substantial move in both parlance and in logic under Model 2 towards attempting to make sense of the practical work of Parliament and the theory of sovereignty. It poses, inter alia , the idea that Parliament may, if it sees fit, impose conditions on the amendment or repeal requirements of an Act.

It could be argued that there are two fundamental flaws in this logic. Firstly, if Parliament is supreme and it enacts a law which puts conditions on the way future Parliaments may repeal the Act, then future Parliaments would no longer be supreme, they would be subject to the conditions set by earlier Parliaments. Secondly, if an Act has special conditions contained within it for its repeal or amendment then it is no longer on an even footing with all other Acts. By setting conditions which future Parliaments must abide by, a law has been elevated to a higher status and so there is an inherent contradiction in this model. Moreover, in the case of Thoburn v Sunderland City Council [2002] EWHC 195, Laws LJ stated, “Parliament cannot bind successors by stipulating against repeal […] cannot stipulate against implied repeal” and “[b]eing sovereign, it cannot abandon its sovereignty”. Laws LJ’s comments were supported in the Court of Appeal in the case of McWhirter v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384.

Though this model is a move towards a more pragmatic approach to Parliamentary Sovereignty, it leaves much to be desired in its logic given that all laws are not treated in the same way. Acts such as the Human Rights Act 1998, the Bill of Rights [1688] or the Magna Carta 1297 do in fact occupy a special position in the UK’s statute book because they deal with matters so fundamental to the way that the UK’s society operates that to change them would change the very makeup of the state. Practically, this elevates Acts such as these to some form of constitutional level of importance. It is difficult to overstate the impact of laws such as these.

Another example is the European Communities Act 1972 (ECA), which fundamentally changed the relationship between the UK and what is now the European Union, and is the subject of impending repeal given the UK’s decision to leave the EU [4] . According to this model the ECA has the same legal standing as all other laws and yet in practical terms it created the legal framework in the UK for the state’s membership of the EU. In R(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court suggested that EU law would have “ no domestic status” but for s.2(1) of the ECA, meaning that all EU law directly effective in the UK comes via one section of one Act. This view is shared in the earlier Supreme Court judgement in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, (see para 80). If this model is followed, the ECA, and all abovementioned Acts occupy no special status and so can be repealed in the same manner as any other law. If s.2(1) is therefore repealed, it would have the legal effect of disapplying all directly effective EU law to the UK; the consequences of such would be far reaching and complicated. It is surely difficult to adopt a hard-line theoretical approach, stating that all laws are equal irrespective of content, when the social, legal and political effects of an Act are so far reaching that they effect all parts of society, law and politics to some degree.

There are no express requirements that need to be met for the ECA to be repealed and Model 2 is silent on the existence of implied conditions emanating from unwritten constitutional rules or conventions. If the ECA were to be repealed in the same manner as any other law the UK would not immediately break all ties with the EU. The UK has obligations which it has entered into during its membership and these political negotiations would still need to take place to separate the UK from the EU. Therefore, asserting that all laws are equal is disingenuous, as it does not address those laws which deal with fundamental matters so important that they could be considered constitutional. This idea of certain Acts of Parliament having constitutional status is shared by The Honourable Mr Justice Beatson who stated that the Government of Wales Act 2006 and the HRA both had a “constitutional status” in the case of R. (on the application of Brynmawr Foundation School Governors) v Welsh Ministers [2011] EWHC 519 (Admin).

With difficulties reconciling the differences between the practicalities of Parliamentary behaviour and theoretical principles and the divide between the logic in Model 2 and the approach taken by the judiciary, Model 2 falls short of offering an adequate theory of the sovereignty of Parliament at this stage.

Model 3 – Unintended Constraints

The final model aims to draw some parity between the operation of Parliament and the UK’s unwritten constitution. The third model states that:

• The constitution may contain rules so fundamental that they cannot be removed even by Parliament
• “Freedom once given cannot be taken away. Legal theory must give way to practical politics ”. Blackburn v Attorney-General [1971] 1 WLR 1037 (Lord Denning)
• A Hierarchy exists; Parliament is supreme and beneath it is a set of constitutional principles that de facto bind Parliament
• The courts should uphold these limits on Parliament

This model moves away from the theoretical aspects found in the orthodox doctrine and attempts to utilise the UK’s unwritten constitution to resolve the debate over Parliamentary Sovereignty. There are some issues with this model also, the first being that the UK’s constitution is unwritten and so stating that rules exist within the constitution which govern Parliament’s operation is difficult to discuss at length except in the abstract. However, it is commonly acknowledged that rules exist in the constitution which are so fundamental that they influence Parliament. It is however a step further to argue that the rules bind Parliament; if this is the case, then Parliament is no longer sovereign, it is subject to the unwritten constitution that has evolved in the UK over centuries and so the Parliaments of previous years which have established these rules have curtailed the powers of the modern-day Parliament.

Secondly, Lord Denning stated that “[l]egal theory must give way to practical politics” (see above). This poses an issue in that it assumes that there is a definite line between politics and the law [5] . Contrary to this, the Houses of Parliament are where politics enters, and law emerges and so attempting to establish any definite line beyond that is very difficult. Debates in chambers and Houses of Parliament revolve around party politics and personal agendas though the instruments being debated are Acts of Parliament and so politics and the law are intrinsically linked.

Thirdly, the statement that Parliament is supreme and yet is controlled by a subordinate set of rules does not fully equate as a logical statement. If Parliament is supreme then only the present Parliament assembled can govern itself, and if there are a subordinate set of rules governing the way that Parliament operates then by virtue of the rules being subordinate, they can therefore be changed.

Finally, in respect of the courts upholding the limits on Parliament, if Parliament is supreme, the courts have no authority to limit its power or enforce rules on it. In practical terms, would the courts ever see it as their role to intervene in the authority of the democratically elected law-making body? It has been argued in popular media that the courts have already taken on the role of controlling Parliament to some degree as seen in the case of R(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. However, the Supreme Court was concerned with the remit of the government as an executive agency and the use of a prerogative power to begin a chain reaction that would lead to a loss of individual rights; not the authority of Parliament to legislate on what it sees fit. It does leave the distinct impression however that the role of the courts is also changing and that no current model of sovereignty adequately explains the adaptability of Parliament or the courts. [6]

Model 3 has clearly developed to try and provide a pragmatic solution to the UK’s unique constitutional situation; it does offer some interesting points to consider though there are shortfalls in its ability to adequately describe the constitutional role of the courts and to map the relationship between Parliament and constitutional rules and conventions. The approach taken by this model is arguably inconsistent with the term sovereignty viz. if Parliament is controlled by the constitution and by the courts it cannot be sovereign in the truest of senses. This model could therefore be better described as constitutional sovereignty with a subordinate or subjugated Parliament. In order for this model to proceed along that line the UK would need to absolve itself of its infatuation with the sovereignty of Parliament and that is unlikely in the near future.

There is much scope for further discussion around the sovereignty of Parliament, and potentially for another model of sovereignty to be proposed which attempts to satisfy the failures in each of the models seen above. Whether it will ever be completely possible to map out the idea of Parliamentary Sovereignty in the UK is debateable, as the many oddities that have arisen in the UK’s system over the preceding thousand years have created a working relationship which is as complex as it is vague. However, it is vitally important that this discussion continues as the lack of a written constitution and a notion of Parliament that is continually evolving leaves many questions to consider. The approach to constitutional and sovereignty matters in the UK is contrary to that taken in many other states; following the UK’s long period of relative stability (save for the Glorious Revolution), the UK has developed a complex and peculiar set of constitutional arrangements. The trend over the past century, has been to develop theories and then try to superimpose these theories onto model that is already functioning. There is scope for the development of a mode which recognises that sovereignty as a concept is malleable. It does not necessarily exist solely in the physical Houses of Parliament and nor does exist solely in the format it did in Dicey’s day. Sovereignty as a concept has changed and continues to change to reflect the needs of modern society and the UK as an active state in a global environment. Established theories do not facilitate this, these theories look back in time to try to explain the current way that Parliamentary Sovereignty operates and yet Parliament has moved on.

The relationships that the UK has with intergovernmental and supranational organisations now goes far beyond membership of the EU; the UK as a state is woven into the global legal framework. The UK’s active participation in the United Nations, NATO, World Trade Organisation and the International Monetary Fund (to name a few) places obligations on the state which in turn impact on the orthodox notion of absolute sovereignty. Absolute and theoretical sovereignty must now give way to a pragmatic realist view of sovereignty which includes recognition of the restriction of Parliamentary Sovereignty that have come about following decades of active participation in the global community. This could be seen as the development of the ideas that Lord Denning spoke of in his judgment in Blackburn (above), however more than just rationalising previous ideas, there is need for a pragmatic and modern approach to mapping the powers of the state, their origin and ultimately their limitations.  Sovereignty is no longer absolute, if ever it was, it is conditional and subject to political relationships which carry obligations and repercussions. This notion will be abhorrent to proponents of the orthodox doctrine; however, the political landscape of the early 21 st century is a far cry from that of the mid to late 19 th century.

Notwithstanding this proposal, the UK’s decision to leave the European Union poses additional challenges for legal theorists and public law lawyers. Arguments around the absolute sovereignty of Parliament in the orthodox sense throughout the campaigns, did little to appraise the general public of the complex relationship that the state has with the EU and other bodies such as those abovementioned. Demagogue arguments which have a nostalgic view of sovereignty are so far from the current political and legal landscape, it is absurd to suggest that the UK can return to completely independent arrangement; if it indeed ever had it in the first place. The post-Brexit landscape may seem illusive at this stage, and in terms of the sovereignty of Parliament, there is little sign of any immediate epiphany or even clarity as to political relationships following the separation. Questions such as: what relationship will the UK have with the EU; to what extent will foreign judgments be acknowledged or considered; what of UK companies that operate in the EU; where does sovereignty stand as the devolved nations build their own legislative and political portfolio and engage in international relationships post-brexit? These questions will fuel the continuing debate over the UK’s future relationship with the EU, with other intergovernmental or supranational organisations, and how the devolved nations see their relationship developing with the EU after the UK leaves. Exiting the European Union may mask the need to address the disparity between theoretical sovereignty and the practical work of Parliament, though only for a short period before another scapegoat appears in popular media and politics. Will devolution be seen as the next assault on Parliamentary Sovereignty? To close, a quote often attributed to Seneca is recalled which exclaims “[w]e let go the present, which we have in our power, and look forward to that which depends upon chance, and so relinquish a certainty for an uncertainty” [7] .

_______________________________

[1] For an appraisal of the development of the UK’s constitutional see JWF Allison, ‘History to understand, and history to reform, English public law’ (2013) 72(3) Cambridge Law Journal 526. For an international comparison see RC Van Caenegem, ‘Constitutional history: chance or grand design?’ (2009) 5(3) European Constitutional Law Review 447.

[2] See AV Dicey, An Introduction to the Study of the Law of the Constitution (London 1959).

[3] For further information on the models discussed below see M Elliott and R Thomas, Public Law (3rd edn, OUP 2017).

[4] European Union (Withdrawal) Bill 2017-19. This can be accessed via http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7793 . In addition to this, the progress of this Bill through Parliament can be seen here https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html .

[5] For more information on this point see A Sanchez-Graells, Brexit, the limits of law and legal scholarship, How to Crack a Nut: A Blog on EU Economic Law, October 6, 2016, http://www.howtocrackanut.com/blog/2016/10/6/brexit-the-limits-of-law-and-legal-scholarship.

[6] See R Masterman and S Wheatle, ‘Unpacking separation of powers: judicial independence, sovereignty and conceptual flexibility in the UK constitution’ (2017) 3 Public Law 469.

[7] MM Ballou, Treasury of Thought: Forming an Encyclopedia of Quotations from Ancient and Modern Authors (Houghton Mifflin 1884) 521.

3 thoughts on “ The Models of Parliamentary Sovereignty ”

Interesting discussion. Just one query, I understood there is no such thing as a United Kingdom Constitution, nor a British Constitution. As I understand it, there is an English Constitution, which helped create the current US Constitution. I may be wrong but I thought I should mention it in case it helps further discussion.

Andy, the UK absolutely has a constitution, it is just uncodified. It’s made up of parliamentary statutes, judge-made common law, unwritten conventions, statutory regulation and parliamentary privilege. It’s a big chaotic jumble and every parliament can rewrite it. I think it’s the UK, Israel and New Zealand that are the only standouts as having no written document that spells out their constitutions.

I wrote parliamentary privilege – I meant royal prerogative. My head needs fixing.

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The Sovereignty of Parliament: History and Philosophy

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The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. It holds that Parliament has unlimited legislative authority, and that the courts have no authority to judge statutes invalid. This doctrine has now been criticized on historical and philosophical grounds, and critics claim that it is a relatively recent invention of academic lawyers that superseded an earlier tradition in which Parliament's authority was limited to common law. The critics also argue that it is based on a misunderstanding of the relationship between statutory and common law, and is morally indefensible. This book responds to these criticisms. It first defines and clarifies the concept of legislative sovereignty and then describes the historical origins and the development of the doctrine from the thirteenth to the end of the nineteenth century. The author goes on to identify many different reasons why persuaded statesmen, lawyers, and political theorists have endorsed the doctrine. He discusses the ideas of a large number of legal and political thinkers, including Fortescue, St German, Hooker, Coke, Bacon, Parker, Milton, Hobbes, Hale, Locke, Bolingbroke, Blackstone, and Burke. He shows that judges in Great Britain have never had authority to invalidate statutes, and that the doctrine is much older than is generally realized. The book concludes by dealing with philosophical criticisms of the doctrine. Combining the insights of earlier thinkers with those of contemporary legal philosophers, it demonstrates that these criticisms are based on a defective understanding of the nature and foundations of law, and of the relationship between legislative authority and the common law. It argues that the doctrine is morally defensible, and refutes the thesis that the judges have authority to modify or reject it.

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The doctrine of Parliamentary Sovereignty

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In this paper, I use Dworkin's distinction between rules and principles to analyse the doctrine of parliamentary sovereignty. I argue that, inherent in many conceptions of the doctrine, is an assumption that it operates in the conclusive manner of a Dworkinian rule. I then submit that the doctrine actually functions in the flexible way characteristic of a Dworkinian principle. In support of this contention, I argue that Acts of Parliament may be balanced against competing principles or statutes; that they possess the dimension of weight or importance; and that the degree to which they will be adhered in any particular case will be contingent upon the importance attributed to any competing principle or statute. I finish the paper with an evaluation of my arguments and an attempt to anticipate potential counter-arguments.

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The article aims to discuss some British parliamentary issues that are directly link with the democratic values, power distribution, limitations, overlapping of national laws with the EU laws before Brexit, and restoration of state sovereignty in the post-Brexit UK. Parliamentary Sovereignty is a doctrine where the parliament wields absolute power and can therefore make and unmake laws. Many scholars argue that the doctrine is the central principle in the UK but by weighing its advantages and its disadvantages, one may assume that it can no longer be regarded as the central element of the constitution. The issue of common law radicalism can also be seen as a limitation to parliamentary sovereignty. The paper also discuss some legal issues of translating Parliamentary Acts by courts and judges. Simultaneously an act count valid on certain circumstances but not applicable when it conflicts with other status.

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Sovereignty, Primacy and the Common Law Constitution: What Has EU Membership Taught Us?

Mark Elliott, Jack Williams and Alison Young (eds), The UK Constitution After Miller: Brexit and Beyond (Oxford, Hart Publishing, 2018)

University of Cambridge Faculty of Law Research Paper No. 24/2018

25 Pages Posted: 27 Mar 2018

Mark Elliott

University of Cambridge - Faculty of Law

Date Written: March 16, 2018

This chapter reflects on the notion of parliamentary sovereignty as it is understood in the UK in the light of the Supreme Court's judgment in R (Miller) v Secretary of State for Exiting the European Union, and, more generally, against the backdrop of the UK's membership of the European Union. In particular, in the paper I explore substantive questions about the accommodation of the EU primacy doctrine by the domestic constitutional system and broader questions about the way in which these matters have been dealt with at the level of constitutional theory. In doing so, I pay particular attention to the question whether this episode in UK constitutional history teaches only specific lessons about how EU law has been accommodated — lessons that may be of little if any relevance when or if the UK fully withdraws from the EU — or lessons of a more enduring kind that will remain pertinent long after withdrawal. I argue that it is lessons of the latter type that can be derived from attempts to understand the relationship that has existed this last half-century or so between the domestic and European legal orders. However, I argue too that the extraction of those lessons involves a degree of supposition and inference that speaks volumes about the way in which fundamental constitutional questions are (and are not) confronted in the UK. The UK’s European sojourn is thus revealing, but only to a degree, of the substance of the domestic constitution. And, to the extent that it is less than revealing, the opacity that we encounter serves not simply to obscure the substance but to illuminate something more visceral: namely, a preference that can be discerned within UK constitutional adjudication, at least when it comes to the very biggest questions, for constructive ambiguity over conceptual clarity.

Keywords: United Kingdon, constitutional law, parliamentary sovereignty, primacy of European Union law, European Union law

JEL Classification: K00, K10, K19, K20, K29, K3, K30, K39, K4, K40, K49

Suggested Citation: Suggested Citation

Mark C. Elliott (Contact Author)

University of cambridge - faculty of law ( email ).

10 West Road Cambridge, CB3 9DZ United Kingdom

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The Changing Constitution (9th edn)

• Preface to the ninth edition
• Table of Cases
• Table of Primary Legislation
• Table of Secondary Legislation
• Table of European Legislation
• Table of International Treaties and Conventions
• List of Contributors
• 1. The Rule of Law
• 2. Parliamentary Sovereignty in a Changing Constitutional Landscape
• 3. Human Rights and the UK Constitution
• 4. Brexit and the UK Constitution
• 5. The Internationalization of Public Law and its Impact on the UK
• 6. Parliament: The Best of Times, the Worst of Times?
• 7. The Executive in Public Law
• 8. The Foundations of Justice
• 9. Devolution in Northern Ireland
• 10. Devolution in Scotland
• 11. The Welsh Way/Y Ffordd Gymreig
• 12. The Relationship between Parliament, the Executive and the Judiciary
• 13. Information: Public Access, Protecting Privacy and Surveillance
• 14. Federalism
• 15. The Democratic Case for a Written Constitution

p. 29 2. Parliamentary Sovereignty in a Changing Constitutional Landscape

• Mark Elliott
• https://doi.org/10.1093/he/9780198806363.003.0002
• Published in print: 24 July 2019
• Published online: September 2019

Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.

• parliamentary sovereignty
• constitutional law
• European Union (Withdrawal) Act 2018
• Scotland Act 1998
• Northern Ireland Act 1998
• Government of Wales Act 2006
• Human Rights Act 1998
• political and legal constitutionalism
• constitutional legislation

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The doctrine of Parliamentary Sovereignty is the cornerstone, and most fundamental principle, of our British Constitution. Its role gives Parliament absolute power, and authority, over any law. Simply put, when any piece of legislation is produced and passed by Parliament it will generally be regarded as the highest form of law within the constitutional structure. This doctrine has been the very foundation of the constitution since, and throughout, the 20th Century. However, recent developments suggest that attitudes are changing and that support for the doctrine, at least in this wholly unqualified form, may not be as assured or predictable as it has long been assumed. This essay will delve into these attitudes, focusing on the changes and challenges that have ultimately weakened Parliament’s authority in our Constitution. The concept of Parliament being the sovereign law maker derived from the constitutional theorist, A.V Dicey, in his 10th edition of the book ‘An introduction to the Study of the Law of the Constitution’. Within this, he defines Parliamentary Sovereignty as: ‘Neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make and unmake any law whatsoever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ Dicey’s perception of Parliamentary Sovereignty can be articulated in three distinct parts: Firstly, that Parliament can legislate on any subject matter. This means it has the right to make and unmake any laws, whatsoever; alter constitutional rules; as well as the right to create retrospective legislation, such as the War Damages Act 1965 – an act passed retrospectively, which exempted the British Government from liability for damage caused during the war. Additionally, as a result of the the arise of Brexit , Parliament has the power to trigger and reinforce the principles of Article 50 – an extremely important document which currently guides our constitution, allows debates on our referendum, demonstrating the importance of parliamentary sovereignty within our UK system, and its crucial role towards Brexit. Dicey’s second part of this doctrine was that nobody, including the courts of law, could question the validity of an Act of Parliament. This is an ongoing, contemporary debate within our state and will be explored later on in this essay in further depth. The last part to Dicey’s definition states that ‘Parliament cannot be bound by its predecessor, nor by its successor’. Put simply, Parliament is not bound by previous parliaments, thus cannot bind future ones. Binding future parliaments would amount to a new constitutional role – an entrenchment – which cannot happen in our constitution due to Parliament’s sovereignty, and the rule that it cannot bind its successors. As a direct result of Dicey’s definition, came the Doctrine of Implied Repeal, and the idea that two statutes can be mutually inconsistent. So, when an act is enacted by parliament, to the extent that it contradicts other acts, these other acts will be repealed. Similarly, when a case goes to court, and two previous acts on the same matter occur, then the most recent act will be followed. Earliest records of our UK constitution, and thus the existence of Parliamentary Sovereignty, date back to the 1200s, and the century that the Magna Carta arose. It is without hesitance to state that, as a result of the unimaginable developments our world and our society has gone through, that this Sovereignty has been impacted; that the one ‘pure and absolute’ doctrine can now be argued to be out of place in the latter-day United Kingdom. These developments have not only weakened Parliament’s authority by undermining it, but in some aspects it has modernised this supremacy, and shared its grounds of authority throughout the UK. From the monarch being the sole source of all power in a kingdom, this power is now distributed between the Monarch, the Judiciary, and the Executives in Government; this is known as the separation of powers, and is one concept that has weakened the power of Parliament, no longer being the single, supreme power in the kingdom. Perhaps one of the most significant developments within Parliament over the last century was the creation of the Parliament Acts 1911 and 1949. The general procedure in the making of an Act of Parliament is that, in order for a bill to be granted an Act, it will need acceptance from both the House of Lords and the House of Commons, and final permission – known as Royal Assent – from the Monarch. However, as a result of these acts, the Lords can no longer ‘veto’ bills but delay them to a period of 1 year, as per the 1949 Act (reduced from the 2 years which the 1911 Act permitted). Further reducing the Lords’ power was the Salisbury Convention, which emerged between the years of 1945-1951. This ensured that Government Bills can get through the Lords, even when they have no majority. In practice, meaning that the Lords cannot vote down a Bill within an election manifesto. Thus, a Bill can now be passed as an Act without having consent from the House of Lords. This development raises the question of which part of ’Parliament’ is really sovereign, if one House can be dropped and an act still have validity? This issue was raised in the case of R (Jackson) v AG; the first instance of the Lords bypassing the creation of the Fox Hunting Act 2004. As understood and stated by Dicey, the word ‘Parliament’ meant the House of Commons, House of Lords and the Queen collectively. However, this new procedural development, which gives the Commons ultimate superior power over the Lords, portrays how elements of the historical Parliamentary supremacy are collapsing**. When discussing whether Parliament is really sovereign, it is important to focus on statutes within the UK, that are a matter of EU law. In 1973, the European Communities Act was created, and arose a body of law made for the benefit of which EU member states have restricted their sovereign rights. The importance of this to our Constitution can be shown in the ‘Factortame No.2’ case series, which establish these limits in cases of conflict between the EU and national law. By rule in our Constitution, no-one is allowed to question the validity of the Act of Parliament, so as primacy is given to EU law, courts, when dealing with national legislation, have to ‘dis-apply’ it. This means these laws are not declared invalid but are just not appropriate to apply. This is known as the preliminary reference procedure, and is demonstrated in the case of Thoburn; which shows a part of national law which, whilst still remaining sovereign, has given away some of its powers to the courts when legislation declared invalid. The use of referendums, by Parliament, such as those of 1975, 2011 and 2016, have also been argued to hinder the sovereignty of Parliament. Interestingly, in a 2016 Government debate on ‘Referendums and Parliamentary Democracy’ which followed the 1975 EEC referendum, the words of Dicey were used to discuss referendums, as he was concerned about irreversible and possible revolutionary changes to the British Constitution, in which he advocated the use of referendums on major constitutional changes. Within this debate they used Dicey’s words which underlined the importance of electors within both processes: ‘This course [of using referendums], it may be said, is unconstitutional. This word has no terrors for me; it means no more than unusual, and the institution of a Referendum would simply mean the formal acknowledgment of the doctrine which lies at the basis of English democracy—that a law depends at bottom for its enactment on the assent of the nation as represented by the electors.’ Further in this debate, many Political leaders had different perceptions on Parliamentary Sovereignty, and the impact that referendums had on it; Edward Short (Labour Party) believed it was “wholly consistent” with the principle of parliamentary sovereignty, arguing that Government will be bound by its result, but Parliament, of course, cannot be bound by it. One of the characteristics of this Parliament is that it can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation. Nor, if the decision is to come out of the Community, could that decision be made effective without further legislation. He went on to state that he does not accept that the sovereignty of Parliament is affected in any way by the referendum. Margaret Thatcher (leader of the conservative Party at the time) discussed the relationship between referendums with Parliamentary Sovereignty, and supported Labour’s arguments, saying that there is no power under which the British constitution can come into rivalry with the legislative sovereignty of Parliament (that is the tenth edition of Dicey), and that too, the referendums are consistent with supremacy. Others believed, however, that referendums can weaken democracy, suggesting that putting people before Parliament is in direct opposition to parliamentary sovereignty. Though overall, the debate concluded that the doctrine of parliamentary sovereignty, allied to the absence of a codified constitution, resulted in referendums in the UK generally being treated as advisory, rather than legally binding. Briefly mentioned already, is the concept of Separation of Powers and its principle of ‘liberal constitutionalism’ is one of the main fundamentals within our Constitution. Montesquieu in Esprit de Lois, states this to be an extremely important principle, as it ‘asserts that there are three different functions of govt. which should be discharged by distinct institutions’; it should be ’a separation of functions and a separation of persons discharging them’. The relationship between Parliament (legislative power) and the Cabinet (executive power) demonstrate this, as in theory, the Government is held in check by Parliament, and in particular, the House of Commons. And our electoral system – which normally produces strong majority for the governing party – as well as other factors, often means that Parliament and the Executive act in concert. Additionally, judicial immunity and the independence of the Judiciary in the UK is a key feature of separation of powers. Judges are trained to act independently and impartially, and it is often possible for parliamentary sovereignty to coincide with the rule of law itself. The Human Rights Act 1998, and its power allows the courts to make a Declaration of Incompatibility; S4(2) of this act states that “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that compatibility”. This means that, although the courts don’t have power to invalidate an Act of Parliament, they can declare it incompatible with the fundamental rights, protected and included in Human Rights Act. For example, in the case of A and others v Secretary of State for the Home Department [2004] (also known as the Belmarsh Case), the act was declared incompatible, and subsequently amended and replaced by another act. Separation of powers is an obvious degradation of the Supremacy that Parliament holds as it is a clear delegation of its powers to other authorities, that without the distinction of power, our constitution would not operate effectively. Webley & H Samuels in ‘Public Law: Cases, Texts and Materials’, supported this concept as they stated that “without separation of power, one person or body would have access to too much power which may lead to its abuse”. The UK is more benefitted by having a strong and effective government rather than a tyrannical government, which abuses power. Though this one bodied power has been the case for the last 800 years, its strength would be inconsistent with that of our society and the developments it has undergone, today. Lastly, the concept of devolution – another concept of power distribution. In the UK, Westminster Parliament is the sovereign but in 1998, for both historical and political reasons, it gave away powers on devolution issues to the Scottish Parliament, meaning they can now legislate on issues, such as Education. Although this may reduce the complete strength of Westminster, it still has absolute power to take back any devolved powers – though, if it did choose to do so, there would most likely be political repercussions, and other crises arising. For example, during the Scottish referendum on independence, if Westminster Parliament were to have taken back the devolved powers, then the Scottish would have been more likely to vote for independence, and thus resulting in multiple constitutional crises. conclude paragraph Having explored various perceptions of the statement title, it is clear to say that, although there may be mixed opinions on this matter, the majority – especially political leaders – state that the Constitution still aims to be consistent with the concept of Parliamentary Sovereignty. It is merely impossible that, within such changing nations, and the development of both political and social norms, that Parliament would have secured such absolute power. The UK holds such significant positions, such as a found EU membership that to have one distributer of power would cause the system to run ineffectively. Our membership within the UK, for example, undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. Certainly fitting in with a national narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215, this narrative has proved very enduring; it places parliament as the central bastion of our liberties.

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Canadian Sikhs thought they were safe to protest against India. Then one of them was gunned down

Sikhs campaigning for an independent state believe they are in the indian government’s sights.

By Annie Hylton

O ne afternoon in July 2022, Moninder Singh, a 42-year-old Sikh activist , arrived at Gurdwara Sahib Dasmesh Darbar, a sprawling Sikh temple in suburban Surrey, British Columbia. He wanted to set his mind at rest. Singh, who had served on the temple’s executive committee for over 15 years and was revered by the congregants, would often go there when he wanted to calm himself. Praying under the chandelier in the worship hall, he would feel petty thoughts leaving his body as he exhaled. On this day, however, his prayers were interrupted by a phone call from his wife. “A bunch of cops are here,” she told him. “And they want to talk to you.”

Singh’s wife passed the phone to an officer with Canada’s Integrated National Security Enforcement Teams. The officer explained that he needed to give Singh a document known as a “duty to warn”, which Canadian officials are required to provide to a citizen whose life is considered to be in danger. “Do you know what that is?” the officer asked Singh. “Someone is trying to kill me,” he responded. “You’re under imminent threat of assassination ,” the officer confirmed. The officer asked if Singh knew who might be after him. “You’re the one with the ‘duty to warn’,” Singh replied. “Where did you get your information?” The officer refused to say.

The child-protection service soon arrived and notified Singh’s wife that Singh was legally obliged to live apart from his two children, to avoid exposing them to danger. Otherwise, they would be forced to intervene. Singh was incensed but had little choice. He returned home, packed a small bag and checked into a rented flat.

That day, several other Sikhs in Surrey received similar visits from security personnel, including Hardeep Singh Nijjar, a 44-year-old who was Singh’s close friend and confidant, and served as president of Guru Nanak Sikh Gurdwara, another temple in the area. He, too, was told there was a threat against his life, but little else. Even so, both felt certain they knew who was behind the threats. As Nijjar’s 22-year-old son Balraj put it to me, “Right away, I thought, OK, India is coming after him.”

Both Singh and Nijjar were outspoken members of the Khalistan movement, which seeks to carve an independent, sovereign Sikh state out of India. The separatist movement gained support in the 1980s in India and abroad, morphing into an armed rebellion that churned up Punjab, a majority-Sikh state in the north of the country, for more than a decade. In Canada – home to the largest Sikh population outside India – Khalistan supporters masterminded the bombing of an Air India flight in 1985 that killed 329 people, the deadliest terrorist attack in Canadian history. Although Khalistan supporters today are largely non-violent, the Indian government remains committed to quashing the movement across the world, maintaining that it remains a national-security threat and that its leaders are linked to organised crime. As two of Canada’s most prominent and vocal advocates for Sikh separatism, Singh and Nijjar had long feared they could become targets.

Upon receiving the threat, Nijjar’s family asked the officers if Nijjar could be provided with a bulletproof vest and bulletproof glass for his car, and whether surveillance around the temple could be increased. They said no, Balraj told me. Instead, the officers suggested Nijjar either leave British Columbia or remain at home until the risk subsided. But if Nijjar followed the officers’ advice, he would be unable to support his family through his work as a plumber. “They’re like, ‘you’re on your own on this. Handle it however you want,’” Balraj recalled. (Officials with the Royal Canadian Mounted Police, RCMP ,  did not respond to detailed questions but said it carries out “safety planning with parties who wish to participate in the process”.)

Nijjar and Singh met in the temple’s car park later that day. “What’s the plan?” Singh asked. “We have to be careful,” Nijjar said. The warnings had come only a week after the murder of another prominent Sikh man in Surrey. Ripudaman Singh Malik, a separatist and businessman who had been acquitted of the Air India bombing, had been shot dead in his car in what officials said was a “planned and deliberate” murder. (Two men have since been charged with first-degree murder; no one has yet alleged any links with India’s intelligence agencies.) “ Somebody killed Mr Malik. We don’t know who killed him, but somebody killed him,” Singh thought. “And now they’re telling us that this could happen to us. We’re sitting ducks.” They decided to start following unpredictable routes around town and check in routinely with each other.

Later that summer, Singh’s “duty to warn” was lifted, and he was permitted to return home. But the threat against Nijjar remained. He began meeting weekly with agents from Canadian Security Intelligence Service ( CSIS ) to evaluate the risk. According to Singh and Balraj, the officials asked who could be behind the threat and whether Nijjar had enemies out to harm him, but they didn’t offer any information of their own. ( CSIS declined to respond to requests for comment.) One afternoon in September, Nijjar visited Singh at his home. As they sat on the back porch eating berries and cantaloupe, Nijjar told Singh that CSIS agents had warned him earlier that week that the threat had increased. If something should happen to him, Nijjar said, “Make sure you go by to see the family.” From then on, Nijjar started unburdening himself regularly to Singh about death and its inevitability. “They will come sooner rather than later,” Singh recalled him saying.

Nijjar and his family started to notice vehicles slowing down in front of their house, then speeding off. One day, a truck ominously circled Nijjar while he was pumping petrol. In June 2023 another Sikh independence leader, Avtar Singh Khanda, died in Britain, prompting allegations of poisoning from his family. (The official cause of death was acute myeloid leukemia, and British police determined there were “no suspicious circumstances”.) Friends and acquaintances worldwide started calling Nijjar, worried for his life.

Singh, Nijjar, and members of Guru Nanak Sikh Gurdwara’s board of management gathered later that month in a meeting room at the temple. A yellow flag with blue lettering reading “Khalistan” hung against the marble wall. “India is ramping up their game,” Singh remembered people saying. “This is a sovereignty fight.” They believed the intimidation was evidence that their struggle was getting somewhere. Nijjar was reminded that he should “keep his head on a swivel”, Singh said. As the meeting adjourned, Nijjar called out to Singh. “Brother,” he said, a soft smile on his face. “If something happens, take care of things.”

On Sunday June 18th, Nijjar called his family after spending the day at the temple to tell them he was returning home for a Father’s Day dinner. The family had prepared pizza. “I’ll be there in 10, 15 minutes,” he said. As his pickup reached the car park exit, a silver sedan captured on CCTV moved in to intercept him. Two heavy-set, hooded assailants appeared from under a nearby awning. Each pointed a gun at the driver’s-side door and opened fire, hitting Nijjar dozens of times.

Within minutes, Balraj received a call from a family friend. “Something happened at the gurdwara,” he said. “Your dad got shot.” Balraj hung up and frantically called his father. “Obviously, no one was picking up,” he said. By the time his family arrived at the temple, Balraj had already learned what had happened from Indian news sites on his phone: his father had been killed.

S ikhism was founded by Guru Nanak, a poet-mystic, in late 15th-century Punjab, a region that is today split between India and Pakistan. Guru Nanak, along with nine successor gurus, taught a monotheistic doctrine that stressed the “oneness” of all creation, and urged equality and the dismantling of hierarchies. Sikh spiritual practice, which involves meditation, the reading of scripture and seva – community service – seeks to erode the ego and bring followers closer to merging with the Creator. His followers refer to themselves as the Khalsa (the pure).

In 1799 the Maharaja Ranjit Singh began consolidating a number of independent Sikh states into an empire, which persisted until its defeat by the East India Company in 1849. British colonial administrators then took over. Waves of resistance followed, but the idea of Khalistan, a sovereign state, was not formally born until the 1940s, when the partition of colonial India dismembered Punjab, dividing the Sikh population between Pakistan, a Muslim-majority state, and India, which had a Hindu majority. As the Indian government set out to establish state boundaries along linguistic lines in the 1950s, Punjabi Sikhs advocated for their own Punjabi-speaking, Sikh-majority state.

In the mid-1960s Indira Gandhi, India’s prime minister, agreed to redraw Punjab’s borders, though many Punjabi-speaking areas were still left out. Over the next two decades, Punjabi Sikhs continued to agitate for more autonomy; thousands were arrested and the Khalistan movement grew increasingly violent.

Hostilities reached a climax in 1984 when Gandhi ordered the Indian army to launch an assault on the Golden Temple of Amritsar – the holiest Sikh shrine – from which Jarnail Singh Bhindranwale, a leading Sikh militant, had been directing the attack. Gandhi’s Operation Bluestar, as it was known, involved the storming of dozens of Sikh temples and resulted in the deaths of hundreds, if not thousands, of civilians and militants. Later that year, Gandhi was murdered by two of her Sikh bodyguards as revenge for the operation, which, in turn, prompted yet another wave of anti-Sikh violence, chiefly in Delhi. Mobs burned Sikh stores, clubbed Sikhs to death and gang-raped Sikh women. Official reports say over 3,000 Sikhs were murdered in three days (unofficial numbers are even higher).

Over the next decade, Sikh militants assassinated politicians and hostile journalists, and indiscriminately attacked Hindu civilians, killing thousands. Human Rights Watch and Physicians for Human Rights recorded thousands of human-rights abuses against Sikhs during the counter-insurgency, including rape, torture and summary executions. The cycle of violence began to sputter out only in the mid-1990s. By then, the government had killed most high-level Khalistan militants; many other separatists had fled the country.

Today, the Khalistan movement is officially outlawed by India and has little support within Punjab. The Indian government, under the prime minister Narendra Modi’s Bharatiya Janata Party, has expanded the use of anti-terrorism laws to crack down on Sikh and other dissidents nationwide. United Nations experts and human-rights groups have repeatedly warned that anti-terror legislation called the Unlawful Activities Prevention Act ( UAPA ) allows the imprisonment of any individual deemed a “terrorist” – a designation that can be made with little to no evidence. Though the UAPA permits authorities to hold suspects for up to 180 days, it is notoriously difficult to receive bail. In practice, those arrested can be held in pre-trial detention for years. “The purpose of the UAPA ,” said Jaspal Singh Manjhpur, a lawyer and human-rights activist in Punjab who has defended dozens of people held under the law, “is to mentally, socially, economically and politically destroy activists so they are shut down and create a wider atmosphere of fear.”

India also investigates individuals and organisations in other countries through its National Intelligence Agency ( NIA ). Indian citizens abroad suspected of involvement with the Khalistan movement risk being held indefinitely, without charge or trial, if they return to India, or are prevented from entering the country altogether.

Mandeep Singh Dhaliwal, who had permanent residency in Canada, travelled back to India in 2016. He was held in custody and forbidden from leaving the country after being accused of terrorism. A Canadian immigration court later found that Dhaliwal “credibly alleges that he suffered torture while in custody”, and that “there was not a single shred of evidence” to establish terrorist activity. (He remains in India, where he awaits a trial date.)

India’s government argues that Canada has been too reluctant to acknowledge the dangers posed by the Khalistan movement and clamp down on rhetoric that incites violence. Canada’s prime minister, Justin Trudeau, has run afoul of the Indian government on several occasions, such as in 2018, when Jaspal Atwal, a Canadian Sikh convicted of the attempted murder of a Punjab minister three decades earlier, appeared at an event with Trudeau in Mumbai. When news leaked that Atwal had been invited to a subsequent reception at the Canadian High Commission in Delhi, Trudeau’s office scrambled to rescind the invitation. In 2020 Trudeau and other Canadian officials made statements in support of anti-government protests by farmers in India – many of whom were Sikh – prompting the Indian government to brand their comments an “unacceptable interference in our internal affairs”.

Before 2023, however, there had been no public suggestion that India had tried to orchestrate the assassination of Sikh activists in Canada. (India has adamantly denied involvement in Nijjar’s killing.) And Nijjar was not even the only target in the West. Last November, just five months after Nijjar’s death, news broke that Gurpatwant Singh Pannun, a leader in the Khalistan movement based in New York, had avoided another alleged Indian assassination attempt.

Pannun, a 56-year-old dual Canadian-American citizen, was labelled a terrorist by India in 2020, and has frequently been accused of issuing veiled threats against Indian politicians. (In 2023 he was also investigated by the Canadian authorities for warning Sikhs not to fly Air India on a particular day. Pannun maintains he was calling for a boycott, not making a threat.) Pannun was also Nijjar’s lawyer and friend. In November, when Pannun learned that America’s Department of Justice had publicly released an indictment detailing the plot and conspiracy to kill him, he had no doubt who was behind it. According to the indictment, an unnamed Indian government operative recruited a man named Nikhil Gupta to arrange his assassination. It was alleged that Gupta managed to contract a hitman to kill Pannun for $100,000, but the hitman turned out to be an undercover government agent. (Gupta was extradited from the Czech Republic on June 14th, and pleaded not guilty to murder-for-hire charges in the United States federal court.)

The Washington Post identified the unnamed operative as Vikram Yadav, an official with India’s Research and Analysis Wing ( RAW ), its foreign intelligence agency. According to the Post , Yadav acted with the approval and knowledge of RAW ’s chief at the time, Samant Goel, and even suggested to Gupta the prospect of other targets in the future. Nijjar’s murder was also allegedly linked to Yadav; hours after Nijjar’s shooting, Yadav sent a video clip to Gupta “showing Nijjar’s bloody body slumped in his vehicle”, according to the indictment. (A spokesperson for India’s Ministry for External Affairs described the allegations in the indictment as “contrary to government policy”; another spokesperson called the Post ’s reporting “unwarranted and unsubstantiated”.)

Upon learning of the plot to assassinate him, Pannun said the details meant little to him. “If bullets or death are the cost,” he said of his Khalistan advocacy, “then I’m ready to pay that price.”

L ast November, on a grey, drizzly afternoon, I waited for Moninder Singh at the Guru Nanak Sikh Gurdwara. Singh was late, which I learned was typical. After an hour or so, he finally appeared from the car park, walking barefoot towards the temple’s entrance, clad in a royal-blue turban and shawl.

Before Singh could reach me, he was intercepted by several local Sikhs. “Where do we go from here?” one asked. “What do we do next?” Since Nijjar’s death, Singh had found himself having to lead the broader Sikh community alone, a role that he had often shared with his friend or deferred to him entirely. “People are fearful,” Singh told me. He often recites an aphorism to reassure people: “If we go left, there’s nothing right; if we go right, there’s nothing left. So the only way is forward, to stay the course.”

Singh’s father moved to Canada from Punjab as a teenager in 1970. He was working in a sawmill in British Columbia when he met Singh’s mother, a cook. Singh was raised with his younger brother, in Clearwater, a predominantly white, middle-class town in British Columbia. They were the only identifiable Sikh family in the area. According to custom, Singh wore a turban and grew his hair long. As a result, he was bullied all the way from kindergarten to high school. Singh remembers closing his evening prayers each night with a wish that he could wake up the next day white.

When he was 13, an older student ripped off Singh’s turban and threw it down the toilet. Humiliated, Singh covered his head with a sweatshirt, fished out the turban, and rinsed it in the sink. That night, he recounted the event to his father. “What are you going to do about it?” his father asked. Singh decided to band together with other bullied kids. “We just organised,” he remembers. “I learned to wrestle, I learned how to fight, I created a little squad.”

Singh’s father, a Khalistan supporter, sought to share the Sikh faith and history with his children. Despite the embarrassment he sometimes felt at school, Singh grew up admiring the bravery of his people. At the height of the insurgency in India, Singh’s family spent time in gurdwaras, where the conflict in Punjab and struggle for Sikh independence were fervently discussed. His father subscribed to a monthly pro-Khalistan newspaper published in Vancouver, and Singh and his brother would cut out photos from every issue of young men who looked just like them, hanging them on the wall. Only later did they realise that the images were of men who had died or gone missing in the fighting in India.

In 1998, aged 17, Singh moved to the Vancouver suburbs for university and started visiting the local gurdwara. The Khalistan movement in Canada was relatively subdued. The violence in Punjab had only recently subsided, and fear and mistrust pervaded the community. Anyone, it seemed, could be an Indian agent.

Around the temple, Singh started noticing Nijjar, a discreet young man, who had arrived from Punjab a year earlier. “Nobody knew who he was or what kind of history he carried…coming out of the movement in [Punjab],” Singh said. As the two became closer over the years, Nijjar started revealing more about himself. He had been born and raised in Bharsinghpura, a small village in Punjab, where his father advocated for Sikh rights.

When Nijjar was a teenager, he was picked up by police three days after the chief minister of Punjab was killed in a suicide-bombing. He told Singh that his jailers beat him with iron rods, electrocuted his limbs and genitals and crushed his legs. Fearing for his life, and barely able to walk, Nijjar negotiated a bribe for his release. He cut his hair to make himself less recognisable  (maintaining uncut hair is a requirement of the Khalsa and symbolises a Sikh’s spirituality and connection to God). Then he hid in a relative’s home. Not long after, in 1997, he secured a false passport and left India, never to return. He eventually settled in British Columbia, started a plumbing business, and applied for refugee status. After his application was rejected because of inconsistencies in his story about the torture he claimed to have experienced in India, he agreed to an arranged marriage with a local Sikh woman. She sponsored his residency in Canada, but this too was denied, as immigration officials perceived it as a marriage of convenience. Nevertheless, the couple stayed together and had two children.

In 2008 he attended an event at the gurdwara where Singh was speaking about the roots of his people’s struggle. Afterwards, Nijjar approached him to say how impressed he was that someone born and raised in the West had such deep knowledge about the movement. Singh was touched and thanked him.

The two began to meet more frequently at protests and struck up a friendship, despite their differing personalities. Singh is enigmatic and introverted, a fitness fanatic devoted to strict regimens of diet and exercise. Nijjar, by contrast, was outgoing and rough-edged, a joker who preferred pizza, burritos and lasagna. Singh studied at university in Canada, worked as a health-care executive, and now serves as the director of the Khalistan Centre and spokesperson for the British Columbia Gurdwaras Council; Nijjar spoke little English and left Punjab before completing college. Singh often remained reserved in community gatherings, while Nijjar crackled, taking many young Sikhs under his wing. Their differences proved useful during gurdwara committee meetings, when Singh found Nijjar’s tolerant manner to be a useful counterpart to his own hot-headedness.

To let off steam, the two of them started taking regular hour-long drives together and talked on a bench overlooking the Pacific Ocean. Soon, Nijjar became Singh’s “go-to person”, and the first number he dialled for advice. “I’m notorious for not answering calls,” Singh said. “Hardeep would call me and I’d pick up on the first ring,” he said. “I don’t know who to call or who to message now.”

T he Indian authorities did not initially seem interested in Nijjar after he fled to Canada. But as his profile grew in the Khalistan movement, he attracted their attention once again. In 2013 Nijjar travelled to the United Nations in Geneva to support a campaign to define the events of 1984 as a Sikh genocide. A year later he joined an initiative in New York to hold a non-binding worldwide referendum recognising an independent Sikh state. At the behest of Indian authorities, Interpol issued a red notice – a request to police worldwide to arrest a person pending extradition. The notice alleged that Nijjar was the head of the Khalistan Tiger Force – a militant arm of the Khalistan movement designated by India as a terrorist organisation – and that he had helped plan a cinema bombing in Punjab in 2007. (It is not known what evidence the Indian government provided to support this claim.) Pannun, Nijjar’s lawyer, helped him dispute the notice with the help of a Vancouver-based law firm, and after several months, it was cancelled.

The Indian government was undeterred. In 2016 the Times of India published an article alleging that Indian intelligence officials had warned the Canadian government that Nijjar was planning attacks in Punjab and running a training camp for Sikh extremists in Mission, a town in British Columbia with a shooting range. Nijjar claimed that Indian media had doctored an image that showed him with a weapon; Canadian police and the mayor of Mission also rebutted the accusations. Still, the Canadian press picked up the story, and a frenzy ensued about Sikh extremists in Canada. Dozens of reporters camped out in front of the family’s home for several weeks. Balraj recalls having to change the route he took to and from school to avoid journalists.

Desperate, Nijjar wrote a letter to Trudeau, pleading for him to intervene to end his “persecution” and defend him from India’s allegations. “I urge your administration to dispel the Indian government’s fabricated, baseless, fictitious and politically motivated allegations against me,” Nijjar wrote, adding that India had “blatantly abused its governmental authority”. He never received a response. Rather, Canada seemed increasingly willing to do India’s bidding. The Canadian government placed Nijjar’s name on a no-fly list and froze his bank accounts. (Canada’s department of public safety refused to comment.)

This was not entirely surprising. In recent years, ties with India have become important for Canada, particularly as they seek to contain China’s influence. Moreover, India is one of the world’s fastest-growing economies, and presents lucrative opportunities for Canadian firms.

Only on rare occasions has Canada responded to what it sees as India’s interference. In the late 1980s the Canadian ministry of external affairs accused about a dozen Indian diplomats, consular employees, agents and informers of espionage, and ordered them to leave the country. After departing from Canada, Maloy Krishna Dhar, one of the diplomats and a former joint director of the Indian Intelligence Bureau, claimed that part of his duty was to “penetrate” gurdwaras, “create assets” in the Sikh community and cultivate “a few friends amongst the Canadian members of Parliament”.

Last year Sam Cooper, an investigative journalist, revealed that in 2017 the CSIS had planned an operation to “shut down rapidly growing Indian intelligence networks in Vancouver that were monitoring and targeting the Sikh community”. That plan was scuttled, however, owing to the sensitivity of a diplomatic trip Trudeau was taking to India. A Canadian parliamentary report in 2019 said Trudeau’s administration had repeatedly failed to act on intelligence warnings that Indian diplomats were meddling in diasporas and Canadian elections. Two other reports released this year found that Indian “proxy agents” had provided “illicit financial support” to pro-India candidates, and that India posed the second-greatest international threat to Canadian democracy, after China.

Though he felt increasingly abandoned by the Canadian government, Nijjar refused to disengage from pro-Khalistan activities. With friends and family, he even made light of the accusations against him and framed the situation as an opportunity to show his commitment to the cause. At worst, if he lost his income, if the bank seized his house or his business was shut down, he’d drive a taxi or mop floors and the family would eat their meals at the temple. Yet as India continued to step up its efforts, the Nijjars grew increasingly anxious. Balraj sensed his father was growing uncertain about his activism, “knowing what the inevitable result would be”.

Even so, the family encouraged Nijjar to pursue what Balraj described as his “calling”. “He’s experienced torture first-hand,” Balraj told me. “It’s kind of hard to just tell someone, just sit down and be quiet. Don’t go to these protests, don’t speak out.” Balraj recalled how delighted his father seemed to be at demonstrations and among the temple’s congregants. “You could always just see that was his place. So for me, there was no regret in letting him live that life.”

One day in 2018, Nijjar left for work and didn’t come home. The Canadian authorities had detained him for questioning, after a request for extradition from India. By the time he was released 24 hours later, Singh was the only person who had tried to contact him – many other  Sikhs had begun to keep their distance, out of fear for their own safety.

Although Canada didn’t seem interested in honouring India’s extradition request, Nijjar’s prospects looked increasingly dire. In 2020 India designated him a terrorist. Two years later, around the time Canadian authorities gave him a “duty to warn”, India’s NIA accused him of conspiring to murder a Hindu priest in Punjab and published Nijjar’s address in Surrey, offering a reward of 1m rupees ($12,000) for information leading to his arrest.

As Nijjar was planning a protest with Singh last spring, the pair took a break next to the gurdwara car park. They sat on the pavement, talking about what they had accomplished together, and what they might do if one of them died. “Do me a favour,” Singh asked. “Can you give me the dastar you’re wearing?” Nijjar smiled, unwrapped his bright orange turban and handed it to Singh. The exchange of a turban is the highest mark of respect in Sikh culture, “something to remember each other by”, as Singh explained. Singh then gave Nijjar his blue turban, and they secured them on each other’s heads. The gesture, Singh said, was symbolic of their relationship: “two soldiers in the trenches”.

Two months later Nijjar was dead. Singh tore Nijjar’s turban in two, so he could always wear a piece of it, even when the other half was in the wash. Every morning, when he wraps it around his head, “There’s no way I can’t remember him,” he said. “It’s a constant reminder that things aren’t finished.”

I n autumn 2023, one phase of the non-binding referendum for an independent Sikh state that Nijjar had been helping to organise was held in Surrey. The referendum, launched by Sikhs for Justice, began in 2021 in the United Kingdom and is being rolled out across several other countries where the Sikh diaspora is concentrated. Pannun told me the goal was to bring the results, due in 2025, to the United Nations to garner support for Sikh self-determination. Without those living in Punjab – where the proposed state would sit – demonstrating their desire for independence, the vote would probably not carry much weight. Still, the Indian government is furious about the referendum, accusing Canada of allowing extremists to carry out “deeply objectionable” and “politically motivated exercises”. Canadian authorities have defended the referendum as an exercise of freedom of speech.

On the second day of voting at the Guru Nanak Sikh Gurdwara, the excitement of the tens of thousands of participants was palpable. Readings from scripture boomed through loudspeakers, and the air was perfumed with chai and deep-fried bread. Pizza boxes were passed among a sea of people carrying yellow Khalistan flags, waiting to cast their votes. “That was his dream,” one Sikh told me of Nijjar. “He believed in the idea of the ballot, not bullet, to defeat the oppression of the Indian state against the Sikhs.”

Later, I met Gurmeet Singh Toor, the secretary of the temple and a close friend of Nijjar, who was almost certainly the last person to speak to him before his murder. “He could have stepped back anytime, in light of all the threats…but he didn’t do that,” Toor said. He told me Nijjar spent six days driving to and from Toronto to campaign for the Khalistan referendum last year, because he was forbidden from flying.

Toor has been one of the most prominent advocates of justice for Nijjar’s murder. In July he filed a petition, sponsored by Sukh Dhaliwal, the member of Parliament for Surrey-Newton, asking the government to investigate. Toor believes his actions may have led to India targeting him, as well. In August, he said, he was presented with the same “duty to warn” that Nijjar and Singh had received over a year earlier. Again, officers did not disclose the origin of the threat.

Toor, who works 12-hour days as a tow-truck driver, said there is a limit to what he can do to protect himself. “Here, is it a democracy or dictatorship? Who will protect us? The Canadian government or myself?” he said. That very morning, he told me, police had called to ask if he wanted to have a panic alarm installed in his home. “At least, you know, it’s something.”

After Toor filed his petition last July, the Canadian government was slow to comment on Nijjar’s killing. In September Trudeau announced Canada was pursuing “credible allegations” linking Indian agents to the murder. “Any involvement of a foreign government in the killing of a Canadian citizen on Canadian soil is an unacceptable violation of our sovereignty. It is contrary to the fundamental rules by which free, open and democratic societies conduct themselves,” Trudeau told the House of Commons. Bilateral relations rapidly deteriorated, and both countries expelled diplomats. India suspended visas to Canadians, and Canada called off scheduled trade talks with India.

Many Sikhs felt validated by Trudeau’s statement. For others, it was too little, too late. Balpreet Singh, legal counsel and spokesperson for the World Sikh Organisation, an advocacy group, told me he had notified Canadian authorities in summer 2022 of potential Sikh targets, including Nijjar. “ CSIS dropped the ball as far as I’m concerned. They knew his life was in danger, but they did absolutely nothing to protect him,” Singh said. “There were no attempts to save lives.”

Nevertheless, those who hope to hold India responsible for its intimidation campaign would soon have reason for hope. On a Friday morning in May, Balraj and Singh were summoned to the RCMP headquarters in Surrey. Police had arrested three members of an alleged hit squad they believe India directed to murder Nijjar – a fourth would be arrested a week later. (In response, a spokesperson for the Indian Ministry of External Affairs remarked that “no specific or relevant evidence or information” about the arrests had been provided to them by Canadian authorities.)

Before they had a chance to digest the news, the story was breaking worldwide. Singh hardly knew what to think. This would be a relief for Nijjar’s family, of course, but the “general looming question of India is still there”, as he put it. “They sent these three people, they’ll send three more tomorrow, three more next year,” he told me. “It’s a policy of eliminating Sikh leadership in the West around the issue of Khalistan. And it should be the individuals creating that policy that are seen as the actual perpetrators,” he said. “These people are just hired guns.”  ■

Annie Hylton is an investigative journalist and associate professor at Sciences Po Paris

PHOTOGRAPHS  AMBER BRACKEN

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