Public Law - Parliamentary Sovereignty - Essay Example

?Our Constitution is dominated by the sovereignty of Parliament. But Parliamentary Sovereignty is no longer, if it ever was ... it is no longer rightto say that Parliament’s freedom to legislate admits no qualification whatever. Step by Step, gradually surely the English principle of the absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified (Jackson and others v Attorney General [2005] UKHL 56, per Lord Hope of Craighead. Critically examine the contention that parliamentary sovereignty is being “qualified” as Lord Hope suggests Within established constitutional convention, the separation of powers doctrine is rooted in the importance of independence to the functioning of democracy1. The separation of powers paradigm assigns different socio-political institutions with specific functions with the theoretical ideal advocating that each institution operates independently of the other2. The theoretical basis for the separation of powers is further exemplified by Montesquieu’s assertion that “All would be lost if the same man or the same ruling body……were to exercise these powers.3” To this end, the separation of powers doctrine is viewed as fundamental for political, legislative and judicial accountability, and in the UK the role of Parliament has often been highlighted as exemplifying the separation of powers doctrine due to its role in legislation and as a regulator of executive power4. Moreover, the doctrine of Parliamentary sovereignty is entrenched within the British constitution as essential in the operation of the separation of powers and the leading decision in R v Jordan5 highlighted the point that the judiciary was bound by Parliament and could not challenge Parliamentary authority when interpreting and applying legislation. Notwithstanding the symbolic importance of Parliament within the separation of powers doctrine, in practice commentators have suggested that within the contemporary socio-political framework the reality is that the separation of powers doctrine is intrinsically limited6. Furthermore, academic discourse has suggested that the lack of clarity in the unwritten UK constitution as compared to other democracies has further compounded the lack of defined boundaries between various institutional functions under the separation of powers doctrine within the UK7. However, whilst there may be no absolute doctrine of separation of powers, it has been acknowledged that the principle underlines day to day functions of the executive, legislature and judiciary. This paper critically reviews the extent to which Parliamentary sovereignty is qualified. In doing so, this paper will firstly refer to parliamentary procedure and undertake a contextual analysis of how EC law and the Human Rights Act 19988 exemplify the reality that Parliamentary sovereignty is inherently qualified in practice. It is proposed at the outset that there is no clear separation of powers within the theoretical ideal and in practice there is a fusion of powers, which is arguably necessary to ensure effective channels of communication in the socio-political infrastructure. For example, whilst the Law Commission’s legislative authority asserts its independence9; the internal governance of the Commission with appointments being made by the Lord Chancellor enables executive influence in legislative functions10. Furthermore, the extent of judicial powers derives directly from the Crown and therefore the operation of the socio-political infrastructure is clearly dependent on the overlap of functions between the theoretical separate powers11. This blurring of the separation of powers has significant implications for Parliamentary procedure. The central function of Parliament is as legislative arm of the British political system12. However, Parliament effectively operates within a party political system and to a degree is used as medium for sanctioning executive sovereignty as it relies on the executive for policy initiatives13. Whilst Parliament can subject executive initiatives to scrutiny, it cannot initiate policy and the degree of scrutiny is intrinsically dependent on where the balance of power lies within the executive, voting and majority possession14. As a result, this clearly undermines any notion of Parliamentary sovereignty being absolute in terms of executive accountability. Furthermore, the incorporation of community law through the implementation of the European Communities Act 1972(the ECA)15, which expressly gives legal effect to EC law has led to the creation of what has been described as “a new legal order16”, directly undermining the entrenched constitutional notion of sovereignty17. Section 2(4) of the ECA provides that “any legislation passed or to be passed… shall be construed and take effect subject to” the enforcement in the United Kingdom of directly effective rules of Community law18. Section 3 further provides for a direct duty for UK courts to determine questions of community law in accordance with principles laid down by the case law of the European Court of Justice (ECJ). The threat to Parliamentary Sovereignty and the separation of powers from EC initiatives has further been fuelled by the implementation of the HRA19. The implementation of the HRA was heralded by the Lord Chancellor as having “a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights”.20 By implementing the ECHR into domestic law, the HRA clearly impacts and changes the constitutional landscape of the UK. Accordingly, it would appear that the political framework within which Parliament operates, along with the impact of EC law and the HRA has culminated in the result that Parliamentary sovereignty is in fact qualified. Alternatively, the constitutional convention that Parliament cannot bind its successors means that arguably Parliament could repeal the ECA and the HRA and therefore support the argument that Parliamentary sovereignty is not qualified. However, from a political and economic perspective it is unlikely that the UK would move towards a repeal of the ECA21. Therefore, notwithstanding theory it would appear that Parliamentary sovereignty is qualified as highlighted by the judicial rationale in Jackson v Attorney General22. As highlighted above, this reality clearly contradicts Parliament’s symbolic purpose as the institutional body ensuring Executive accountability. This is further reinforced by the fact that in practice Parliament’s legislative function is limited to being reactive to initiatives that are often motivated by policy objectives of the relevant political party in power. Indeed, MP David Davis’ resignation over Labour’s detention without trial measures highlights the reality of legislative reform in Parliament being shaped by political motives. These examples further point to the qualified sovereignty of Parliament, which is reinforced by reference to the Parliament Acts of 1911 and 194923. For example the Parliament Act 1911 confirmed the House of Commons’ supremacy by limiting the House of Lords’ voting rights. The basis for this was the fact that members of the House of Lords were unelected and effectively enabled the House of Commons to pass legislation without House of Lords’ approval. The House of Lords’ power was further reduced by the subsequent Parliament Act of 1949. As a result, the Parliament Act 1949 was passed on the basis that Parliament cannot bind its successors. Whilst this is necessary to ensure continued flexibility in the law making process, it is evident that the constitutional convention whilst suggesting sovereignty; highlights the fact that the concept of sovereignty has always been intrinsically qualified as evidenced by the passing of the Parliament Act 1949. For example, in Jackson v Attorney General24 the validity of the Hunting Act 2004 was challenged on the basis that it was passed under the Parliament Act 1949. It was argued that the 1949 Act was passed under the 1911 Parliament Act and that interpretation of the 1911 Act meant that the 1949 Act was invalid on grounds of Parliamentary sovereignty. However, the House of Lords rejected this argument and suggested that any argument of absolute legislative supremacy was intrinsically flawed. Indeed, Baroness Hale expressly referred to the examples of the ECA and the HRA to support the reality of qualified Parliamentary sovereignty. As highlighted above, the decision in Jackson was clearly logical as applying a strict approach to sovereignty could result in the floodgates being opened to challenge legislation, which would clearly lead to illogical results in practice. Furthermore, such a result would also undermine Parliamentary intention as the 1949 Act clearly reflected sovereignty by implementing Parliament’s intention. Therefore in practice it is arguable that the concept of Parliamentary sovereignty was never absolute. In any event the qualification of sovereignty is now underlined by the supremacy of EC law under the ECA and the leading ECJ decisions in Van Gend en Loos25 and Costa v ENEL26, which asserted that Community law measures “by their entry into force render automatically inapplicable any conflicting provision of current national law27”. Similarly the HRA incorporated the European Convention on Human Rights (ECHR) into UK law and the preamble to the HRA states that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. For the first time, the UK implemented a piece of legislation akin to a constitutional Bill of Rights, protecting essential human rights and freedoms28. Prior to 1998 there had been no British constitutional statement regarding basic human rights similar to those found in the constitutional provisions of other democracies29. This new human rights “Charter” now has direct legal effect and protection in the UK. The HRA has been labelled as one of the most important domestic legal developments for a generation30 and section 2(1) of the HRA imposes an obligation on national courts to take into account Convention rights. Additionally, section 3(1) expressly requires national courts to operate in a manner that is compliant with the ECHR. As such, section 3 of the HRA requires UK judicial authorities to interpret any legislation whether primary or subordinate in a manner which is compatible with Convention rights. Prior to the implementation of the HRA, the function of the courts in relation to Parliamentary legislation was limited to the interpretation and application of that which was placed before them31. The ECHR was not directly applicable to the English legal system. Even domestic courts had no jurisdiction to address human rights issues and citizens were required to bring expensive claims directly to the European Court of Justice (ECJ) in Strasbourg32. Prior to the implementation of the ECHR, the courts would exploit uncertainty in existing legal principles to incorporate Convention rights through the backdoor on public policy grounds33. For example, in the case of Waddington v Milar34, Lord Reid expressly referred to Article 7 of the Convention in reaching his determination exploiting ambiguity in existing legislation applicable to the case. However, the fundamental difference is that Parliamentary sovereignty was paramount, and prevented any significant increases in levels of human rights protection under national law prior to the HRA35. Moreover, Parliament was free to remove or control individual liberties at any time by passing appropriate legislation. For example, in Malone v Metropolitan Police Commissioner36, it was asserted that there was no right to privacy in English law, which conflicts with the current legal position under the HRA. In the Malone case, the complaint regarding phone tapping during a police investigation was not upheld as there was no recognised right to privacy law in the UK. Conversely, this was held to be in direct contravention of the European Convention on Human Rights in Strasbourg. Moreover, in light of the decision in Ramanauskas v Lithunia37 (where entrapment was held to be in breach of the right to a fair trial) it is likely that the Malone decision would now lead to a judicial declaration of incompatibility under the HRA 1998. The direct incorporation of the ECHR into national law arguably goes further whereby the role of the judiciary is to act as guardian to individual human rights38. As such, it is argued that the HRA sets a new standard for all new legislation and provides essential powers to UK courts to enforce Convention rights, thereby forcing Parliament to change legislation that is incompatible39. This effectively, reverses the previous situation whereby Parliament could enact any legislation to prevent the judiciary from incorporating human rights principles de facto on public policy grounds. This arguably creates a shift in power from the legislator to the court, blurring the distinction between the constitutional separation of powers and reinforces the qualification of parliamentary sovereignty. Therefore it is evident that in practice there is no absolute separation of powers and that arguably the concept of Parliamentary sovereignty has always been qualified by its interrelationship with the wider socio-political framework within which the Executive operates. Additionally, the decision in Jackson highlights that any assumption of absolute legislative authority is intrinsically flawed due to the need for Parliamentary sovereignty to operate within the continually evolving nature of the British constitution. Moreover, the concomitant impact of the HRA and ECA suggest that the theoretical concept of absolute sovereignty is clearly undermined by the reality of qualified sovereignty as Lord Hope indicated in the Jackson decision. BIBLIOGRAPHY Karen Alter, Establishing the supremacy of European law. The making of an international rule of law in Europe, (Oxford University Press, 2001). H. Barnett., Constitutional and Administrative law. (5th edition Routledge Cavendish, 2004) A Bradley & K. Ewing Constitutional and Administrative Law, (14th Edition Longman, 2006). A Carroll, Constitutional and Administrative Law. (5th revised edition, Longman, 2010) Penny Darbyshire, & K.J. Eddey. Eddey and Darbyshire on the English Legal System. (7th Edition Sweet & Maxwell 2002) S. Foster & M. Ryan, Unlocking Constitutional and Administrative Law. 2nd Revised Edition, Hodder Education, (2010) E. . Giussani, Constitutional and Administrative Law. (1st Edition Sweet & Maxwell, 2008). Rebecca Huxley-Binns., & Jacqueline Martin, Unlocking the English Legal System (Hodder Arnold, 2005). A King. Does the United Kingdom still have a constitution? (Sweet & Maxwell, 2010) I Loveland., Constitutional, Administrative Law and Human Rights. 5th Edition Oxford University Press, 2009) Franz C. Mayer, “Supremacy –Lost WHI Paper 2/06” (2006) German Law Journal Vol 6 No 11 pp1497-1507. Legislation & Websites Parliament Act 1911 Parliament Act 1949 Law Commission Act 1965 European Communities Act 1972 Human Rights Act 1998 All available at www.opsi.gov.uk accessed January 2011. Read More