Chapter 9: Parliamentary Sovereignty Flashcards

Question

Not a sovereign legislation

Answer 1

Critics of the manner and form argument have pointed out that the New South Wales legislature was a creation of the UK Parliament and was subordinate to it. It was not a sovereign legislature and so its legal position was quite different from that of the UK Parliament itself. The possibility of manner and form entrenchment only therefore seems to apply – according to this reasoning – to subordinate legislatures, such as the devolved assemblies in the UK.

Answer 2

Arguments have persisted, however, and the issue came to the fore again with the European Union Act 2011, which introduced a ‘referendum lock‘. This was a statutory framework requiring a referendum to be held before further amendments could be made to the founding Treaties of the EU. The referendum lock provision in the Act seemed to extend this pledge beyond the life of that Parliament by creating a manner and form requirement.

Answer 3

(Note, however, that the status of the lock was never tested in the courts before the UK left the EU.) The debate over the possibility of procedural limitations on Parliament’s powers has continued in some significant obiter discussion in the higher courts. In Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Laws LJ asserted that ‘Parliament […] cannot stipulate as to the manner and form of any subsequent legislation’.

Answer 4

If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, [ie via the Parliament Acts] it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed.

Answer 5

One of the most notable historical challenges to the notion of Westminster omnipotence has been the ending of Empire and partial erosion of the Union (of the UK). There has always been a different conception of the powers of Westminster in Scotland to that held in England and Wales. See for example the approach taken by the Scottish judiciary in cases such as MacCormick v Lord Advocate [1953] SC 396.

Answer 6

The theory behind this was that the Acts of Union were not created by the UK Parliament but by the original English, Scottish and Irish Parliaments. Hence, the Acts created a new UK Parliament that did not have unlimited sovereignty but was limited by its founding constitutional documents. In the words of Professor J. Mitchell, the new Parliament was ‘born unfree‘.

Answer 7

Starting with Canada (in 1867) and subsequently (in 1901 and 1907 respectively) with Australia and New Zealand, Dominion status was given to recognise a number of semi-independent states under the British Empire. The Dominions’ constitutions were established by UK Acts of Parliament. A constitutional convention developed that no new UK Act affecting a Dominion would be passed without the request and consent of that Dominion - in recognition of their autonomous status. This was confirmed in s 4 of the Statute of Westminster 1931, which required there to be a recital in the relevant legislation of the request and consent from the Dominion.

Answer 8

The political reality of the autonomy (and subsequent complete independence) granted to the Dominion nations subsequently caused significant conceptual challenges to the original Diceyan doctrine of parliamentary sovereignty

Answer 9

In granting Dominion status to the three original countries (and subsequently six others) the Westminster Parliament had effectively legislated to reduce its own sphere of political authority. In UK terms the most significant development was the granting of Dominion status to the new Irish Free State in 1922 (subsequently the Republic of Ireland from 1949), comprising all the island of Ireland except the six north-eastern counties of Northern Ireland.

Answer 10

The problem for the courts since these developments has been reconciling the undoubted political diminution of Westminster authority with the orthodox legal principle in Dicey’s theory. Some judges have been at great pains to state that political change has not diminished the unlimited legal authority of Parliament – see, for example, Megarry VC in Manuel v Attorney General [1983] Ch 77. Others have emphasised that political and legal authority operate on entirely different planes, as Lord Denning put it in Blackburn v Attorney General [1971] 1 WLR 1307, a case concerning UK membership of the (then) European Economic Community

Answer 11

We have all been brought up to believe that, in legal theory, one parliament cannot bind another and that no act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931 […]. Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted independence to the Dominions […]. Can anyone imagine that parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics.

Answer 12

We have seen at the start of the course how the programme of devolution, which has been underway since 1998, has shaped the constitution of the UK, as well as how it has been implemented. One cannot directly compare the degree of autonomy given to Scotland, Wales and Northern Ireland to the more significant semi-independence given to the Dominion countries in the late 19th/early 20th centuries.

Answer 13

In the past, autonomous powers given by Westminster have been suspended or taken away. For instance, ‘Direct rule‘ from Westminster was imposed on Northern Ireland from 1972 to 1998, after the province had been run by its own ‘Government’ in Stormont from 1921. Significant layers of local government have also been abolished – notably the Thatcher government’s abolition of the GLC (Greater London Council) in 1986.

Answer 14

Nevertheless, an argument can be made that, in the absence of more dramatic political events (as occurred in Northern Ireland), the political acceptance of devolution in Scotland and Wales means that it is very difficult to see how the original devolution would be reversed. This is even more the case given the political direction of travel of the policy - ie towards enhanced devolution, and in Scotland’s case the possibility of a further independence referendum.

Answer 15

This is, of course, a political limitation on the authority of the Westminster Parliament rather than a legal one – Parliament could still ‘unmake’ this law and any other in Diceyan theory – but in practical terms it arguably takes the orthodox theory into abstract territory.

Answer 16

The sovereignty of the Westminster Parliament can arguably be limited by: * Parliament divesting itself politically of areas once under its own authority * Devolved legislation * ‘Practical politics’ (per Lord Denning in Blackburn v AG)

Answer 17

The orthodox Diceyan theory on parliamentary sovereignty is based on the idea that the legal authority of the Westminster Parliament is unlimited. It is also apparent, however, that over time Westminster has given away political authority to newly independent nations and arguably diluted it in respect of the devolution arrangements within the UK. It’s also crucial to assess how the 47-year experience of the UK’s membership of the European Union (EU) and its predecessor bodies has impacted on the doctrine of parliamentary supremacy. Though this membership is now at an end, it will also continue to have a significant future bearing on constitutional law in the UK.

Answer 18

Unlike ‘monist’ states, in which domestic and international law obligations operate on the same plane, the UK is a dualist state, in which there is a distinction between the two sources of law. As seen in cases such as Mortensen v Peters, domestic law has a higher status in the UK legal system, because this is created by the sovereign Parliament. If Parliament therefore wishes international legal systems or sets of standards to be enforced, it needs firstly to ‘incorporate‘ this body of external law into the UK legal system by passing a statute to that effect. This is what was done in 1972 with the passing of the European Communities Act (ECA). As we will see later, a similar process occurred in 1998 with the passing of the Human Rights Act, which incorporated the European Convention on Human Rights.

Answer 19

The UK signed the Treaty of Accession in 1972 and became a full member of the European Communities (now known as the European Union) from 1 January 1973. In order to incorporate the Treaty of Rome 1957 into domestic law, Parliament passed the ECA 1972. Since then, a number of other treaties have modified or amended the original Treaty. This includes the Maastricht Treaty which first established the European Union. These have also been incorporated into UK law by statute amending the ECA. For the sake of clarity, the body of law created by both the European Communities and the European Union will simply be referred to as ‘EU law’.

Answer 20

There are three key provisions in the ECA in relation to sovereignty. Section 2(1) gave effect to EU law within the UK. It provided that: All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly […].

Answer 21

Section 3(1) provided that questions of law relating to the EU should be determined according to the principles laid down by the European Court of Justice (ECJ). This gave effect to the case law of that court (more recently known as the Court of Justice of the European Union – the CJEU). Most significant of all the principles of EU law that have been established - and one that was already laid down by the ECJ a decade before UK accession - was that of the supremacy of EU law over domestic law, (now known as the ‘primacy’ of EU law)

Answer 22

This principle was established in the case of Costa v E.N.E.L. (Case 6/62) [1964] ECR 585. It stipulates that EU law cannot be overridden by the national law of the Member States. In the event that the two are in conflict, EU law must prevail. The clear difficulty faced by the UK has been that the traditional account of parliamentary sovereignty insists that no one or no body is competent to override or set aside an Act of Parliament.

Answer 23

Section 2(4) of the ECA sought to accommodate the primacy of EU law more specifically – it provided that: […] any enactment passed or to be passed shall be construed and have effect subject to [EU Law]. The application of this section was relatively straightforward in relation to any UK statutes enacted before the ECA 1972. The doctrine of implied repeal operated to ensure that any pre-1972 statutes, which were incompatible with EU law, would be overridden by the ECA itself, thereby satisfying both the demands of EU law and those of parliamentary sovereignty.

Answer 24

This created a clear tension with the principle of parliamentary sovereignty as it appeared to run counter to the principle in Vauxhall Estates and Ellen Street Estates that Parliament cannot bind itself so as to prevent a later statute from impliedly repealing an earlier statute. That raised the question of whether s 2(4) could have the effect of enabling EU law to override subsequent statutes? Did it mean that implied repeal was no longer relevant in the context of EU law? Had the 1972 Parliament bound future parliaments?

Answer 25

The period from UK accession up to the late 1980s offered no final resolution of these difficult questions. At that point they were still conceptual. In a series of cases – many in relation to employment rights – the UK courts continued to show some allegiance to traditional notions of parliamentary sovereignty but largely managed to resolve issues by applying a presumption that, whenever it passed legislation, Parliament was intending to comply with EU law. Any inconsistency between the two sources of law could be put down to oversight by the draftsman.

Answer 26

As an example of this kind of approach, see Macarthys Ltd v Smith [1979] All ER 325. Here the Court of Appeal accepted that, by virtue of ss 2(1) and 2(4) ECA 1972, EU law would take precedence over the relevant statute, if it proved to be inconsistent with that statute.

Answer 27

The relative finesse of this approach, based on a purposive approach to statutory interpretation - the purpose being to achieve harmony where possible between EU law and existing UK law - was of no assistance, however, in a landmark case heard in 1990. This involved a dispute between the Secretary of State for Transport and a number of companies, headed by Factortame Ltd, over the application of restrictive provisions in the Merchant Shipping Act 1988. The UK government had introduced this legislation specifically to cut back on a practice known as ‘quota hopping’ which was seen as damaging to the UK’s national fishing industry, as it allowed foreign-based ships to take advantage of UK fish quotas, if the companies were registered in the UK.

Answer 28

The applicant companies, which were incorporated under UK law, owned 95 fishing vessels. They were mainly owned and managed by Spanish nationals, but their vessels had previously been registered as British under an Act of 1894. When the law was changed with the passing of the Merchant Shipping Act (MSA) 1988, these vessels had to be re-registered. The applicants’ vessels failed to qualify under the new regime because they were largely managed and controlled from Spain. The companies therefore sought to challenge the legality of the relevant new statutory provisions on the ground that they contravened the provisions of the EEC Treaty and other aspects of EU law, as incorporated by the ECA 1972.

Answer 29

Unlike in the earlier line of cases, where it had generally been possible for EU law and UK law to be harmonised, this was not an option in relation to the MSA 1988. This was because the new statute operated in direct contravention of key principles in EU law, notably freedom of establishment. Initially, the law lords refused the granting of interim financial relief to the companies, as they did not believe they had jurisdiction in the circumstances where domestic law appeared to preclude it. The matter was then referred to the ECJ for a ruling.

Answer 30

Following the ECJ’s response to the reference, the law lords convened to give the key judgment in this long-running litigation. This case is one of the most important in UK constitutional law. It established that the courts could now suspend an Act of Parliament where they were required to do so by EU law. This caused a degree of political consternation at the time. However, Lord Bridge insisted that the principle of the supremacy of EU law was well established by the time that the UK had joined and that, in enacting the ECA 1972 Parliament had ‘voluntarily’ signed up to a ‘limitation’ on its own sovereignty.

Answer 31

Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament

Answer 32

But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty […] it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. […]

Answer 33

Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus, there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.

Answer 34

Factortame put it beyond doubt that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972. Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even without a reference to the ECJ. The ability of the courts to do this was made clear in R v SoS Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1, a case involving the rights of part-time workers under the Employment Protection (Consolidation) Act 1978 As part-time workers were predominantly female, the EOC argued that the statute indirectly discriminated against women contrary to EU law. The House of Lords agreed and granted a declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the wording of the Act and granted part-time workers compensation rights if they had completed two (rather than previously, five) years employment.

Answer 35

This case involved market traders - the self-named ‘Metric Martyrs’ - who were convicted for using imperial measures (ie pounds and ounces) contrary to legislation enacted to implement a European directive. They alleged in their appeal that the ECA 1972 (through which the directive had been implemented into UK law) was incompatible with the later Weights and Measures Act 1985, which allowed for the use of both metric and imperial measurements.

Answer 36

Their point was that the 1985 Act impliedly repealed the relevant aspect of the ECA 1972. On the facts Laws LJ found no incompatibility, but he proceeded to make a number of obiter points which have been very influential in the modern debate over sovereignty. Laws LJ’s contribution to the debate centred on the reasons for why the Diceyan doctrine of implied repeal no longer seemed to operate in relation to cases such as Factortame. He concluded that EU law was able to prevail over incompatible domestic statutes because an exception had been created to the doctrine of implied repeal. He saw this to be a reflection of the existence of a hierarchy of statutes – these could be divided into ‘ordinary’ statutes and ‘constitutional’ ones. These had certain key features and included: the ECA 1972 and other very significant statutes such as the Human Rights Act 1998, the devolution Acts of 1998, the Bill of Rights 1689 and the Parliament Act 1911.

Answer 37

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a Constitutional Act […] the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes.

Answer 38

Following the departure of the UK from the EU, it is clear that the impact on parliamentary sovereignty was a significant but temporary one. The fact that the courts enforced principles of EU law over domestic statutes – illustrated most notably in Factortame – shows that it is possible for one parliament (in 1972) to have bound future parliaments in a substantive way. However, the binding effect only lasted for as long as Parliament – as a continuing institution – wished to be bound by it. Ultimately, therefore, Parliament can impose limitations upon itself, but the principle remains, because it cannot prevent future parliaments removing those restrictions (assuming, of course, that it is still politically possible to do so).

Answer 39

* The UK constitution is ‘dualist’, meaning that international agreements must be enacted in domestic legislation before they can take effect in domestic law. * Via the ECA 1972, European Union law was effectively incorporated into domestic law, and was given supremacy. The ECA 1972 has now been repealed. * Following the UK’s accession to the EEC, the UK courts initially took a purposive approach to the application of Community law. * The key case of Factortame made it clear that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972. Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even without a reference to the European Court of Justice.

Answer 40

The protection of rights through the Human Rights Act 1998 (HRA) will be covered in separate materials. However, it is important at this stage to consider the extent of the HRA’s impact in relation to the doctrine of parliamentary sovereignty. The first point to note about the HRA is that, in a very similar way to what happened in 1972 with ‘EU law’, it incorporated the ECHR (or almost of it) into UK domestic law. This shows again how, in the UK’s dualist system, a body of international law has to be brought within the domestic system by the passing of statute. (Note that the European Convention on Human Rights - the ‘ECHR’ - is a totally different body of law to that of ‘EU law’.)

Answer 41

The doctrine of parliamentary sovereignty remains the foundation on which the UK constitution rests. The UK’s near half-century membership of the EU has presented a challenge to the orthodox Diceyan theory which informs the doctrine of parliamentary sovereignty. Though it clearly had the most significant impact, the ECA 1972 has not been the only development to have diluted the purity of the doctrine. Another very important legal development, which has also caused some tension in this context, is the system of rights enforcement introduced by the Human Rights Act 1998.

Answer 42

Relating to the effect on parliamentary sovereignty, the key sections of the HRA are: * Section 2 – interpretation of ECHR rights * Section 3 – interpretation of legislation * Section 4 – declarations of incompatibility (and section 19 – statements) * Section 6 – enforcement of rights (and ‘statutory defence’)

Answer 43

This section requires that any ‘court or tribunal determining a question which has arisen in connection with a Convention right must take into account’ the jurisprudence of the European Court of Human Rights (in Strasbourg) ‘so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen’. In the early days of the HRA the UK courts took this as a strong direction and Lord Bingham developed a line subsequently known as the ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

Answer 44

In more recent years, however, the courts have been bolder in arguing for a development of the law that preserves the autonomy of English law in situations where jurisprudence from Strasbourg may be less relevant or attuned to the particular nature and culture of the common law system. The idea is that there should be ‘dialogue’ between UK courts and the ECHR - in other words each court can learn from the other in how best to maintain and promote ECHR rights. Examples of cases in which this approach has been taken have included R v Horncastle [2009] UKSC 14 and R (Haney) v SoS for Justice [2014] UKSC 66. Assertions made that the UK higher courts have lost autonomy at the hands of Strasbourg seem therefore to have been over-played.

Answer 45

This has probably been the most controversial provision within the HRA in the eyes of those who have concerns over the maintenance of orthodox sovereignty. Section 3 of the HRA states that: […] 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 convention rights. It therefore applies a strong obligation on UK courts to strive to interpret existing legislation in an ECHR-compatible way.

Answer 46

The issue in relation to s 3 HRA has been whether in practice this interpretive power has given the judiciary the ability to over-ride the apparent intention of Parliament when it passed the original legislation. Concerns on this score were heightened after the first major case reaching the higher courts on this point – a criminal law case, R v A (Complainant’s Sexual History) [2002] 1 AC 45, in which the Defendant claimed that his Article 6 rights to a fair trial were compromised by very restrictive provisions that had been introduced in s 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA). These had the apparent effect of preventing him from bringing in any evidence about the complainant’s past sexual history, which he needed to do in order to put forward his defence of consent

Answer 47

Lord Steyn, who gave the lead judgment in R v A (CSH), emphasised that the interpretative obligation in s 3(1) of the HRA 1998 was a strong one. He gave effect to this by reading a new provision into s 41 of the 1999 Act that evidence or questioning, which was required to ensure a fair trial under Article 6 of the ECHR, should not be treated as inadmissible. In subsequent cases – which will be considered in other materials – the courts have confirmed Lord Steyn’s view that in some circumstances it may be necessary for a s 3 interpretation to be made that appears to conflict with parliamentary intention. However, the courts have stressed that this is only appropriate where the interpretation does not go ‘against the grain’ of the underlying policy and scheme of the original legislation.

Answer 48

There is no doubt, therefore, that s 3 gives the courts a powerful interpretive tool and one which can be seen as interventionist to an extent that even goes beyond modern forms of purposive statutory interpretation. In relation to the wider issue of sovereignty, one can see a similar (though less pronounced) type of effect as that which occurred under s 2 of the ECA 1972. The HRA in effect has a higher status than an ‘ordinary’ statute. Even though the YJCEA in the R v A (CSH) case was passed subsequently to the HRA, this later Act was ‘governed’ by the terms of the dominant, ‘constitutional statute’. The HRA provided the power that allowed the judiciary to read in Convention rights standards (incorporated by the HRA) to all subsequent ‘ordinary’ statutes.

Answer 49

Section 4(2) of the HRA states that: If the court is satisfied that [a] provision is incompatible with a Convention right, it may make a declaration of incompatibility. On face value this power seems to allow the courts to evaluate statutory provisions and therefore looks equivalent to the kind of ‘strike down’ powers that are available to supreme courts in many other democratic states. However, it is important to note that a declaration of incompatibility has a political rather than a legal effect. It does not invalidate the law that has been deemed incompatible – see s 4(6) HRA. It merely flags up the fact that it is incompatible. It is then a matter of political judgement for the relevant minister as to how to react

Answer 50

Section 3 or section 4 are effectively alternative powers that the court can utilise if incompatible legislation appears to have facilitated the violation of an ECHR right. When a declaration is made under s 4, this is seen as a significant intervention and, in most instances, the politicians do take steps to remedy the incompatibility in the law (though they are not compelled to). One of the most notable examples of use of s 4 we have seen so far was in A & Others (the Belmarsh case) [2004] UKHL 56, following which the government did re-evaluate its anti-terrorism policy. Some academic thinkers have even categorised s 4 as a mechanism which achieves an indirect form of constitutional review of legislation (in practical reality rather than in absolute terms).

Answer 51

Note also that, before legislation is passed, the sponsoring minister in Parliament has a duty under s 19 HRA to make a statement (before second reading) in relation to the compatibility of the Bill’s provisions with Convention rights. The Minister can either state that these are compatible or, if it is anticipated that they are not, that the government nevertheless wishes the House to proceed with the Bill. This emphasises the essentially political approach to compatibility with the ECHR. It is possible for Parliament, at the government’s behest, to pass legislation that is or may be incompatible with the ECHR as long as a statement is made to that effect. Ultimately, however, it is for the courts to decide on compatibility and there have been instances when legislation, which was given a positive s 19 statement in Parliament, has later turned out not to be following review by the courts.

Answer 52

Overall, it is possible to see the design of the HRA as representing an accommodation between stronger rights protection – clearly the main purpose of the Act – and the need not to undermine the traditional doctrine of parliamentary sovereignty. The effect of s 4 is important in this, as also is the defence that public authorities can plead under s 6(2) HRA to a claim that they have violated an individual’s ECHR rights. The basic duty falling on public authorities – under s 6(1) HRA – is that they must act in a way that is compatible with ECHR rights. However, the s. 6(2) defence effectively allows a public authority to plead that it was obliged or allowed to violate an ECHR right because of the operation of incompatible legislation (which it has not been possible to make compatible using s 3 powers). If all violations were automatically deemed unlawful, then that would certainly have had a considerably greater impact on Dicey’s theory.

Answer 53

There is some debate therefore over the effect of HRA on the orthodox theory, as matters stand. However, in ultimate terms, as has been shown with Brexit, it is perfectly possible for Parliament to undo what the 1998 Parliament did. For as long as the HRA remains in place, it will have a dominant effect as a ‘constitutional statute’. But its effect will only be evident for as long as subsequent parliaments wish it to and, clearly, there has already been considerable debate about whether the Act should be repealed. It is strongly arguable that the HRA, as it stands, does not fundamentally undermine the basic supremacy of Parliament as a continuing sovereign institution.

Answer 54

* As the UK is a dualist state, the European Convention on Human Rights was incorporated into domestic law by the Human Rights Act 1998. * Sections 2, 3 and 4 of the HRA are key when examining the Act’s impact on parliamentary sovereignty. * As a result, domestic legislation must be interpreted, if possible, in a way which gives effect to the ECHR. If this cannot be achieved, a ‘declaration of incompatibility’ may be made. * The jurisprudence of the European Court of Human Rights must be taken into account by domestic courts. * The overall effect of the HRA on parliamentary sovereignty is debatable.

Answer 55

The traditional Diceyan theory of parliamentary supremacy has come under pressure over the last half-century as a result of several significant legal and political developments. These have been brought about by Parliament itself through the passing of reforming constitutional legislation. In other words, Parliament has imposed limitations upon itself as an institution which are binding, but only for as long as subsequent Parliaments wish them to be. However, other developments have taken place in the common law sphere that have arguably also had the effect of modifying the purity of Diceyan doctrine.

Answer 56

When looking at the rule of law, the modern judiciary has sought to protect rights and freedoms through the way in which it carries out its role in interpreting legislation

Answer 57

In this case, Lord Hoffmann made the significant observation, which he referred to as the principle of legality, that: Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Answer 58

However, he made the crucial proviso that, if Parliament wishes to do this, it must state its intention in crystal clear terms. Otherwise, the courts will apply the strong presumption that Parliament did not intend to restrict rights. One can see this therefore as a very mild form of entrenchment of fundamental rights. These cannot be casually set aside - if a government wishes to restrict rights, it has to set out its legislation in Parliament in a completely transparent way, and it has to accept any ‘political cost’ for doing so.

Answer 59

Elaborates on his point by arguing that this approach achieves a vital constitutional purpose. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. It is debatable whether these principles are applied in a way that is only a ‘little different’ from other democratic states with codified constitutions. However, one can see here the subtle way in which the judiciary seeks to exercise a real influence over the implementation of the law.

Answer 60

One of the most notable ways in which the courts have modified the application of legislation in order to protect rights has occurred in issues relating to the courts’ own rights to determine judicial review challenges. As will be seen in more detail in other materials, there have been legislative attempts to ‘oust’ the courts’ rights to scrutinise governmental actions and decisions through judicial review. ‘Ouster clauses’ are sometimes included in legislation in order to try to prevent decisions made using the relevant statutory powers being reviewed in court. The courts’ attitude towards these has been universally hostile and has been evident since the late 1960s since the leading case of Anisminic.

Answer 61

In the context of this case, s 4(4) of the Foreign Compensation Act 1950 provided that: The determination by the commission of any application made to them under this Act shall not be called in question in any court of law. Anisminic Ltd. wished to challenge a decision of the FCC on the basis that it had misconstrued the legal effect of the statutory framework under which it operated. The law lords held that the ouster clause did not prevent it from challenging the FCC’s decision. Lord Reid's statement: It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.

Answer 62

The subsequent history of governmental attempts to include ouster clauses in legislation has been a generally fractious one. The courts see ouster clauses as an affront to its constitutional purpose of holding the Executive to account, and, as in Anisminic, they have tended to use highly purposive forms of statutory interpretation to bypass the apparent intention of Parliament in the original legislation. This approach is illustrated in cases such as R v Home Secretary, ex parte Al Fayed [1997] 1 All ER 228 and, more recently, in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. Extra-judicial disapproval of the tactical device of ouster clauses also tends to be vociferous, notably during debate over the Asylum and Immigration (Treatment of Claimants) Bill in 2003-4.

Answer 63

The legality principle was not established in the Simms case, even though it is usually associated with it, given the significant influence of Lord Hoffmann’s speech. It can be traced to a series of cases in the 90s, starting with R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994] QB 198 which concerned prison rules permitting the interception of legal correspondence between a prisoner and his lawyers. The Court of Appeal held that these interfered with a constitutional right to the free flow of communications between a solicitor and a client about contemplated legal proceedings. And it also made clear that this interference could only be authorised by express words in the statute or by necessary implication.

Answer 64

This approach was also used in R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779 to challenge the scale of court fees set by the Lord Chancellor under the authority of a statutory instrument. Witham wished to sue for defamation but could not afford the court issue fee of £500, as he was unemployed. (His request for a waiver of the fee was dismissed.) He sought judicial review of the Lord Chancellor’s decision in setting the court fees. He argued that his right of access to the court was being denied by the scale of fees and the court’s refusal to waive them. It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a fundamental right, was denied. The statutory instrument was declared to be ultra vires the Act.

Answer 65

The courts in recent years have been developing a body of principle known as ‘common law constitutionalism’. To a large extent this can be seen as an extension of the case law developed in the late 90s. Arguably both trends represent a way in which the judiciary seek to modify and temper the potentially more alarming consequences of a system built on Dicey’s theory of unlimited parliamentary supremacy. The modern line of cases have effectively created a parallel route for rights protection, operating alongside the more formal enforcement process created by the HRA 1998. (Some have speculated that this represents a form of judicial ‘insurance policy’ in the event that the HRA is repealed in future…)

Answer 66

There have been several very significant cases over the last decade or so that can be placed under this broad banner. Critics of judicial ‘activism‘ would point to them as examples of judicial overreach distorting apparent parliamentary intention. Supporters would point to the vital role of an independent judiciary developing principles that are designed to maintain and promote constitutional safeguards and to ensure that government is held to account. There is nothing new as such in the courts developing basic legal principles in public law any more than in private law. We will see in other materials that the basic ‘grounds’ of JR – ideas such as fairness and ‘reasonableness’, as well as legality – have been created by the courts. However, recent case law has arguably expanded the base.

Answer 67

He held that the Parole Board had acted unlawfully in failing to allow oral hearings for three prisoners when important decisions were being taken about their release or recall on licence. Though the challenge to the Board had been based on Article 5(4) ECHR, Lord Reed stated that the HRA did not: […] supersede the protection of human rights under the common law or statute or create a discrete body of law based upon the judgments of the European Court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the act when appropriate.

Answer 68

Effectively Lord Reed was developing on the well-established existing principle, evident in the common law since the 1960s, that administrative bodies such as the Parole Board had an obligation to act fairly to those about whom they were making important decisions. In relation to the details of this case he set out a general rationale for an extension of the duty of fairness in relation to personal involvement of prisoners in the decision-making process that affected them and their future lives

Answer 69

This meant that the participation of prisoners in personal hearings was expanded, based on the principle that involvement in the process by those affected was an important personal right in itself, and was significant too in promoting accountability and transparency in government more generally.

Answer 70

The Supreme Court found that a new fees regime for employment tribunals was unlawful, partly on the basis of a constitutional right of access to the courts and tribunal system – often known as ‘access to justice‘. This was seen as inherent to the rule of law.

Answer 71

The constitutional principle was a broader one – the UKSC found that the Attorney General had ‘contradicted the fundamental principle that a court’s decision could not be ignored or set aside by anyone, including the executive, and that the executive’s actions were reviewable by the court’.

Answer 72

The constitutional importance of transparency and open justice – what Lord Mance called the ‘common law presumption in favour of openness’ - was a key feature of the case of Kennedy v The Charity Commission [2014] UKSC 20. The case concerned a journalist’s Freedom of Information Act request in relation to a charity set up by the controversial politician, George Galloway. The court’s view was that it was the role of the judiciary, through the common law, to determine the application (or otherwise) of disclosure requirements in light of the above common law presumption. Here again one can see the centrality of common law constitutional principles in determining such an issue.

Answer 73

This has perhaps the most significant case which has highlighted and explored the potential friction between the principles of parliamentary supremacy and the rule of law has been Jackson v Attorney General. The fact that this case went all the way to the House of Lords (and was determined by a full judicial panel) is highly significant in itself, as Jackson’s argument was essentially that an Act of Parliament was invalid.

Answer 74

This represents a radical proposition in Diceyan terms, given earlier firm adherence by the courts to the ’enrolled bill rule’ in cases such as Pickin v British Railways Board. Jackson’s case (as the Chairman of the Countryside Alliance) was that the Hunting Act 2005 – which banned fox-hunting – was invalid, because it had been passed under the accelerated procedure laid down in the Parliament Act (PA) of 1949.

Answer 75

The root of his case was that the 1949 Act was invalid because the House of Commons alone had amended the original Parliament Act of 1911. He argued that this was not permissible because there was an implied exception to the use of the procedure set down in the 1911 Act, which originally established an accelerated process for passing legislation that could involve bypassing the House of Lords. This exception, he said, meant that a ‘delegate body’ (ie a Parliament comprising only the Commons) could not increase its own powers on its own authority. It had not been able to do so, he reasoned, in 1949 and so the 1949 was effectively null and void.

Answer 76

The law lords did not accept the main arguments put forward by Jackson – they found that the 1949 Act was a valid form of legislation and so the Hunting Act as well as other Acts passed under the terms of the 1949 Act procedure were entirely valid too. However, in developing a number of obiter points, the court arrived at some more challenging ideas on the relationship between courts and Parliament. Initially, as a spin-off from Jackson’s argument about an ‘implied exception’ to the use of the PA procedure, the majority of the law lords made an important point about an implied exception that they thought existed. This related to the democratic safeguard that had been written into the original PA 1911.

Answer 77

The issue mooted was whether it would be possible for a future House of Commons to extend its own lifetime (beyond the five-year limit) by adopting a two-stage process using the accelerated PA procedure - ie bypassing the House of Lords on both occasions. Firstly, by removing the express exception against doing this in s 2(1) PA 1911, and then by passing an Act to increase the lifetime of the current Parliament to, say, 10 years? The majority answer to this hypothetical but important question was that this would not be possible. In other words, there was an implied exception to this extent (though not to the extent that Mr Jackson argued). The reason given was that it was vital to maintain the very important democratic safeguard in s 2(1) by ensuring that the House of Commons could not extend its own time in power without being checked by the House of Lords as the second chamber.

Answer 78

Underlying the more abstracted, far-reaching debate in Jackson one can see clear judicial concern about the potential constitutional dangers of a system in which a strong central executive can use its majority in Parliament to pass legislation that may undermine fundamental rights and values. Lord Steyn referred to a ‘complaisant House of Commons’ (at para 102).

Answer 79

This remains a key anxiety of the judiciary and is reflected in the modern emphasis on protection of fundamental rights through the common law. In Jackson judges such as Steyn, Hale and Hope looked to the principle of the rule of law (in its modern substantive form) as the vital safeguard in establishing a balance in the constitution between its political and legal foundations. Lord Hope saw the rule of law has having a key functional role in providing the necessary balance between the different bodies of state.

Answer 80

The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty.

Answer 81

It was seen as the court’s role therefore – as ‘guardians’ of the rule of law – to define these limits. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. […] It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

Answer 82

The view that parliamentary sovereignty was not ‘uncontrolled’ was reflected in a more radical way still by Lord Steyn. He mooted the possibility of the passing of ‘oppressive and wholly undemocratic legislation’ and warned that the courts may have to consider whether to recognise such legislation, based on an alternative reading of the constitutional balance. Note from the following quote how Steyn sees the principle of parliamentary supremacy as a product of the common law. (This remains an unorthodox view, but it does represent one logical extension of the approach that attributes the courts with the role of constitutional arbiters.)

Answer 83

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish

Answer 84

* The traditional Diceyan theory of parliamentary supremacy has come under pressure over the last half-century as a result of several significant legal and political developments. * Perhaps the most significant case which has highlighted and explored the potential friction between the principles of parliamentary supremacy and the rule of law has been Jackson v Attorney General [2005] UKHL 56. * In Jackson, Lord Steyn mooted the possibility of the passing of ‘oppressive and wholly undemocratic legislation’ and warned that the courts may have to consider whether to recognise such legislation, based on an alternative reading of the constitutional balance.

Chapter 9: Parliamentary Sovereignty Flashcards

(109 cards)