Sure, the Queen could decide to exercise her power outside of the constrained ways she currently does, but the very likely effect of that is a vote to strip her of her power.
This is always a fun start to any argument about the constitution of the UK.
The thing is, you're building on a foundation that could potentially be challenged. As we discovered during the Brexit debates, people are happy to use words like "parliamentary sovereignty" when it suits their purposes, yet clearly many of them have never actually read Dicey, much less understood its entire argument or what the resulting concept of parliamentary sovereignty really means. And of course Dicey himself was not empowered with any special authority, but rather assembled a rational argument based primarily on historical precedent, which has subsequently been broadly accepted by figures in authority in the UK but is still, like everything else about our constitution, more a matter of convention than clear popular mandate.
Perhaps more importantly, if Parliament really is constitutionally sovereign, in the sense that its rules are supreme over all others and nothing a current parliament does can ever bind a future parliament, then we can never improve our system of government by adopting a formal written constitution, even if doing so would have overwhelming public support at the time. If you're going to make any argument about improving the constitution, starting from a foundation that necessarily precludes the single most important improvement that could be made might not be the best idea.
Basically, the UK Parliament passed a law delegating all of its powers to the Canadian legislature and declared it would never debate or pass a law again on the Canada question. Nothing actually stops them from doing so. But after 150 years of holding to this convention, it may as well be written in stone.
One can imagine the UK Parliament delegating its powers to successor entities and then essentially abolishing itself to a purely ceremonial function. Give it some time, and everyone gets used to it and that's the new system. Just ramp up devolution, basically.
For what it's worth, Parliamentary sovereignty is also an idea in the Canadian constitutional system, where it's taken to mean that the legislatures have absolute authority within their areas of jurisdiction, and that collectively the legislatures also have the authority to rewrite the constitution.
(As an aside, "What would happen if the British Parliament did repeal the British North America Act 1867 or Canada Act 1982?" is a rather fun hypothetical from the Canadian side.)
The Queen would likely (rightly) refuse Royal Assent if parliament tried that, given that as she is also Queen of Canada, she could never legitimately allow the UK Parliament to do that.
And if so some reason she did not, it would have no real impact on Canada anyway. Practically speaking Canada is in no way bound by the UK at this point. While legal theory may claim otherwise, it does not really matter. Legal theory would also claim the US constitution is illegitimate, because it was not passed in the way considered correct by its predecessor document (Articles of Confederation). Nobody cares.
The UK trying to change Canada's constitutional situation would be no more effective than the US passed a law claiming to amend Canada's constitution. The Government of Canada would laugh at it, and otherwise move on with their day. In the UK case they might debate changing to no longer be a Monarchy, since their Queen had failed them here.
Canada would, of course, simply ignore any such act. Even if there were a strong legal argument made in our own courts that it somehow abolished our sovereignty, we'd all agree to simply pretend otherwise.
For example, the custom is that the Queen will appoint whoever she believes to be most likely to hold the confidence of parliament as the prime minister. Obviously the best candidate is usually the leader of the majority party or a collation that has a majority.
De Jure, however, she may appoint anyone (besides herself?) at any time for any reason. She would be stupid to do anything other than what is customary, but if she did, I am pretty certain the consensus would be that doing was was legal if unwise. After all, this has already happened in a form by way of the Governor General in Australia infamously dismissing the prime minister to enable Supply to be passed, and new elections held, which clearly violates the custom.
The selecting prime minister case is also interesting as it is one of the few where the custom is not based on the advice of Her Majesty's Government because of the obvious conflict of interest there.
On the other hand, while all Royal Prerogatives are de jure the Queen's, many of them arguably can only be exercised by the State/Government, which is clearly a distinct entity from the Queen, despite the laws constantly identifying the two as one and the same (the laws identify both the hereditary office of the Monarchy and the executive organ of the state as the Crown, despite those obviously being distinct things in reality). For example, If the Queen tried to seize control of the Armed Forces away from her Government/MoD, this might be deemed unlawful despite control of the the armed forces being a reserve power, and her being the nominal commander in chief.
One of the nice things about a good written constitution is that it helps to differentiate what is merely custom vs what is the actual law. Of course, the actual law and the written law can still differ, but it does help to avoid assuming what is merely a custom is the de jure law.
But yes, if we did want a new written constitution to become superior to any other legal authority except for a popular decision to change that constitution, one strategy that might be compatible with our current legal order would be to establish and empower whatever new order was intended and then render the historical Parliament functionally impotent so that no mechanism remained for it to pass any new legislation that would undermine the new order.
I wonder what Dicey would have made of such issues today. I suspect he might have argued that any claimed authority under any system of government is relevant only if that system has popular consent, so regardless of historical precedent, if the will of the people is clearly to change to a new system of government then the old system no longer enjoys any moral authority anyway.
As a practical matter, if the public view is clear and most of those in positions of power within the new order, such as political representatives and judges, support that view, then arguments about preserving the historical order become moot points anyway. And if the public ever felt strongly enough about our constitution that this kind of change was a realistic prospect, I wouldn't expect anyone in a position of power to keep that position under the new order if they didn't support it.
Isn't that true of any such system? The US may have a written constitution, but that would be just a piece of paper if it weren't for the conventions surrounding it.
> Perhaps more importantly, if Parliament really is constitutionally sovereign, in the sense that its rules are supreme over all others and nothing a current parliament does can ever bind a future parliament, then we can never improve our system of government by adopting a formal written constitution, even if doing so would have overwhelming public support at the time. If you're going to make any argument about improving the constitution, starting from a foundation that necessarily precludes the single most important improvement that could be made might not be the best idea.
The statement is that Parliament is sovereign, not that Parliament necessarily ought to be sovereign. In practice I'm sure we could find a way to restrict the authority of parliament - the judiciary have already signalled some willingness to question the validity of laws if they undermine the integrity of parliament as a democratic body or basic human rights. But assuming we didn't, sure, we'd have to technically have a revolution, akin to the founding of the Fifth Republic in France. So what? Most countries have to redo their constitution every so often - it'd be very strange to expect a written constitution from hundreds of years ago to be appropriate for government today.
Perhaps, but I think there is a profound difference in the legitimacy and authority of a system of government if there has at some point been a clear demonstration that the general public consent to it. The ideal might be a popular vote to accept the original constitution document, with a substantial majority in favour, and then some practical mechanism that allows any member of the public to cause a later change to the constitution if the consensus of their peers agrees with them. The important point is that the final authority on the system of government is the people being governed, directly.
In practice I'm sure we could find a way to restrict the authority of parliament - the judiciary have already signalled some willingness to question the validity of laws if they undermine the integrity of parliament as a democratic body or basic human rights.
According to our current constitution as generally accepted, the courts can't overrule the will of Parliament. That is parliamentary supremacy in action.
Human rights cases heard by our highest courts have typically come down to favouring an interpretation of statute law that is compatible with other statute law like the HRA in cases of ambiguity. It is understood that if Parliament clearly intends a new law to reduce the legal protection of human rights then our courts must follow that intent in their judgements.
After that, we're getting into some very fuzzy areas that come to the foreground with issues like Brexit or Scottish independence, but again the courts will enforce the will of Parliament (and by extension, the ability of Parliament to express its will).
I personally don't think either of those is necessarily a good thing, which is why I believe it could be better in the long term if we had a proper written constitution as many other states do, setting out the basic structure of our government and associated responsibilities, authorities and limits on power, with explicit popular consent to that form of government.
Well, the will of the people can't bind itself, so I'd say the current system reflects that pretty well.
> According to our current constitution as generally accepted, the courts can't overrule the will of Parliament. That is parliamentary supremacy in action.
Sure, but this is also, as you said, just a matter of convention and precedent. Jackson suggests the consensus has already shifted somewhat away from absolute parliamentary supremacy.
This is the system of government that the people of Britain have chosen, and the impact of the queen is exclusively a political problem. If there was a serious difference between the will of Parliament (Commons) and the Queen, the result is a foregone conclusion.
There is surprisingly little basis for arguing that the people of the UK have ever chosen almost anything important about our current system of government. That system is largely based on historical conventions, often dating back centuries and in some cases to the outcomes of civil war, and the status quo has several built-in feedback loops that make it difficult to change even with widespread popular support. The constitution of the UK is a fascinating subject, but it can also be rather uncomfortable subject matter to study if you believe in ideas like democracy and civil liberties.
As a "person of Britain", I have certainly never had any say in the system of government.
The article is actually making a big deal about the fact that the queen expressed an opinion about legislation in an area that the author decided wasn't covered by the vague wording of a pamphlet.