The Relationship of the English Courts to the Doctrine of Parliamentary Supremacy - Term Paper Example

Constitutional Law Critically discuss from your research and analysis the relationship of the English courts to the doctrine of parliamentary supremacy particularly the English judicial attitude to acts of parliament which are in conflict or inconsistent with previous acts of parliament. The question of the relationship of the English courts with the parliament is not new. Before analysing it in the context of latest international developments in the political landscape, let us get a bird’s eye view of the history of constitutional law and supremacy of parliament over judiciary. The history of constitutional law in the UK goes far back to 1689, the year in which the English Bill of Rights was passed. This bill curtailed the royal family’s legality to superimpose its will on the parliament – its unlawful suspension and imposing taxes through it. The then King William III and Queen Mary took an oath that they would obey the laws enacted by the parliament. The other important laws passed were the 1689 Toleration Act – promoting religious toleration and the 1694 Triennial Act – obstructing the king from dissolving the parliament and upholding of general elections after three years. These laws provide a background on the present sovereign status of British Parliament and its upper hand over English courts. (Magna Carta, 1215 - 1689 English Bill of Rights) (http://www.legalserviceindia.com/constitution/const_uk.htm) Albert Dicey, in his book Introduction to the Study of the Law of the Constitution (1885) has exposed the supremacy of Parliament thus: "Parliament... has... the right to make or unmake any law whatever; 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." The implications of this school of thought envisaged the supremacy of parliament to make laws. It provided for the future parliamentarians to override an earlier law and it was a prerogative of the Parliament only to make, amend and formulate new laws. Although the Act of the Union of 1707 created ambiguity regarding its application in Scotland and some members of Scottish jury disagreed with it in principle. It becomes clear in Lord Copper’s judgement in the case MacCormick v. Lord Advocate in 1953. The theory of parliamentary supremacy was also supported by Lord Reid in Madzimbamuto v. Lardner-Burke [1969] 1 AC 645: "It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, …If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid." But the actual picture was quite different. In 2004 when the government wanted to pass the Asylum and Immigration (Treatment of Claimants, etc.) Bill, containing an all-inclusive “ouster clause”, prohibiting any judicial look on the applications of asylum, the judges and lawyer community rose in unison against it. The Lord Chief Justice, Lord Woolf, went to the extent of refusing to apply the law if enacted. As a result, the government had to withdraw the bill in its original form. It was passed with alterations later on. The judiciary has challenged the supremacy of Parliament time and again and considering latest developments, one can perceive the attack on the institution of Parliament from four directions. Take the case of degeneration of power to regional assemblies. Both, the Scottish Parliament and Northern Ireland Assembly can pass primary legislation for the delegated areas while the Welsh assembly can pass secondary legislation. The second and major attack on Parliament’s sovereignty has been from the institutions of European Union particularly the European Court of Justice (ECJ) – the Supreme Court of the European Union. The ECJ exercises the right to over-rule UK laws if they are inconsistent with the EC pacts. According to the European Communities Act 1972, its law will be held supreme if any UK law is found inconsistent with ECA and stands automatically quashed. Take, for instance, the example of the Merchant Shipping Act 1988 and the Factortame case. This case clearly established the supremacy of European Union law to English law.(http://en.wikipedia.org/wiki/Parliamentary_sovereignty) Factortame case: A Spanish fishing company called Factortame put up its case in the UK courts against restrictions enforced on them by the UK government under the Merchant Shipping Act 1988. A section of the Act didn’t allow companies using non-British ships registered as British vessels to operate in British waters. Factortame argued that they had the right to fishing under the law of the European Economic Community. The High Court of Justice of England and Wales obtained a stay-order from the European Court of Justice to hold back the Secretary of State for Transport from implementing that part of the Act for the time being. But this injunction was over-ruled by the Court of Appeal of England and Wales. It is important to note the argument put up in favour of the injunction by the Court of Appeal of England and Wales that no court has the constitutional right to put on hold the Acts of Parliament. The House of Lords – the highest court in the UK supported this argument. To further the case, the House of Lords conveyed its decree to the European Court of Justice in 1990. In response, the ECJ proclaimed in June 1990 that a court of EU member country could quash a law, which was found inconsistent with that of EU law. As a follow-up, the House of Lords decreed in favour of Factortame and declared the Merchant Fishing Act null and void. Thus, we see that the earlier Act of Parliament, which was found in contradiction with EU law had to be revoked by the House of Lords. The Factortame case proved that a law court could supersede the law enacted by the Parliament. The Factortame ruling can be seen from a different angle. It should be perceived not an attack on the sovereignty of Parliament because Parliament could abrogate the European Communities Act by a majority vote. Although it is legally possible for the Parliament to cancel its relation with EU but it is not politically advisable at the same time. (http://en.wikipedia.org/wiki/Factortame_case) Another institution of the European body – the European Convention on Human Rights (ECHR) and the inclusion of the Human Rights Act 1998 provide that if the Convention rights are transgressed by a law, the ECHR doesn’t on its own nullify it; the government has to ensure observance of ECHR’s decisions. The Human Rights Act includes a clause according to which the British courts can adjudge an Act of Parliament as inconsistent with rules of the Convention and announce its incompatibility. The government could abrogate the law to annul it by enacting a bill. Referendums, which have been in practice more often than not, can also be used to curtail the powers of Parliament. Referendum implies that the decision whether a law is to be passed or not, is taken by the voters. Although legally, it is possible for the Parliament to quash a decision of the electorate but the possibility is quite rare. It is interesting to note that European courts and British courts have this right to announce incompatibility with a law enacted by the British Parliament because of the European Communities Act, which was passed in 1972 and it can be revoked by the Parliament itself. Thus, we can say that theoretically, Parliament is in a position to be sovereign almost in its entirety, almost because it passed the Church of Scotland Act 1921, which came into existence after a long controversy spanning a century over its enactment. This Act established the sovereignty of the Church of Scotland, quashing the right of Parliament to be the sovereign power over Church of Scotland. Here again, it is interesting to note the inconsistencies in the Acts passed by the UK Parliament. It can prove its sovereignty by cancelling the European Communities Act whenever it decides so but it won’t be wise on its part to do so politically. So, theoretically, all powers still vest in the Parliament. It need not get an affirmation from the EU to revoke the Act, as it did in 1972 by abolishing the parliament of Northern Ireland. The so-called inconsistency stands because of Balfour Declaration, the statute of Westminster 1931 that gave equal rights to the self ruling colonies of Britain, which didn’t require the dominions to apply the Acts passed by the British Parliament without their open consent. Of course, once the Act was passed, the government couldn’t turn its steps back and change the Act. It is worth to quote the example of Canada. In 1982, the British Parliament passed the Canada Act, which quashed its right to amend the constitution of Canada. After passing the Act, if it were to change it, it is not in a position to backtrack, as Canada is no more a colony of Britain.(http://en.wikipedia.org/wiki/Parliamentary_sovereignty) Regarding the role of the court, N.W.Barber has analysed in the Oxford journal of legal studies, bearing the title – Sovereignty Re-examined: The Courts, Parliament and Statues. Article 15 of the constitution has drawn the line to keep the courts far from reexamining the acts passed by the Parliament. The Article 15 (1) finds the Parliament responsible for promulgating a law in case an emergency situation demands it, to safeguard its citizens from dangers rather than a judge of an international organization. But the Article 15 (1) and Article 19 provide clear margins not to allow unlimited powers to the state. Here, the Court along with the Commission has been given the responsibility to see to it that the States don’t transgress from the extent strictly required by the exigencies of the situation. The European supervision is also provided to the Courts. The role of the Court is specified in Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, adding (para 43) that "in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation." The supremacy of Court on issues of qualifying situations has been established many times. Although it has been agreed that the responsibility of saving the public from extremists lies with the government but it cannot on its own derogate from the Commission post September 11, 2001. It is obligatory on its part to point out the real danger to the life and property of the people. The Committee of Privy Counsellors that was established under section 122 of the 2001 Act also pointed out that sufficient evidence has to be shown to derogate from the European convention on Human Rights. The Supreme Court of Canada also took a judgement in the case of Libman v Attorney General of Quebec (1997) 3 BHRC 269, para 59. In another judgement (cited with approval in Libman) in RJR- MacDonald Inc v Attorney General of Canada [1995] 3 SCR 199, para 68, La Forest J, said: "Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be." Also worth reading are the remarks made by Jackson J, in the court of the United States in West Virginia State Board of Education v Barnette 319 US 624 (1943), para 3 with particular reference to a rooted constitution: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed."(http://eprints.ouls.ox.ac.uk:81/oxjlsj/hdb/Volume_20/Issue_01/abstracts/200131.sgm ) The Australian Law Reform Commission in its Reform issue 74 Autumn 1999 has expressed views in favour of Parliament’s supremacy. It finds that Parliament is an elected institution and judges, being not elected representatives of the electorate, cut down the legislative powers in an undemocratic way. But the courts, through their judicial reviews, can keep a check on the powers of the states, thus serving the democratic end even if they are not democratic bodies. Professor Tony Blackshield, attached with the Department of Law and Justice, Division of Law, at Macquarie University in Sydney, has discussed the issue of the natural rights of the courts to decide on the reasoning behind the Acts of Parliament in their judicial reviews. It was observed that the doctrine of implied immunity of instrumentalities adopted by the High Court in the case of D’Emden v Pedder,1 was not carried further in the Engineers’ Case2. The Privy Council didn’t agree to it as such a doctrine by the High Court put a sign of interrogation on the validity of the legislation. Prof. Tony Blackshield finds procedure carried out in the American system quite different from the Australian mechanism, which resembles and is identical to the UK because the American Union has given the powers to check the validity of an Act to a tribunal. This tribunal can declare a statute unconstitutional. It is not the case with the UK statute, which, when enacted, has to be obeyed once it has been passed by the Parliament. Sir Albert Dicey had argued in his Introduction to the Study of the Law of the Constitution in 1885: “Parliament ... has ... the right to make or unmake any law whatever ... English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges.” In 1610, Chief Justice Coke had put forward the power of judiciary to “control Acts of parliament and sometimes adjudge them to be utterly void” but it has not set any precedent on the part of English Judges to make such claims thereafter. Dicey believed in the unwritten constitution more than written constitution – to him it was like a political document, which was not as important as the unwritten constitution. Later, Giovanni Sartori also spoke in the tune of Dicey, declaring such constitutions as “façade constitutions”. One can substantiate their arguments by providing the case of Soviet constitution, which did not protect its citizens, although full of human right declarations. It is the proactive responsibility of the government machinery to observe whether some independent authority scans the role of the powers that be. Self-constraint is not the answer. A conscious electorate can play a positive role in checking the government and Parliament not to cross the line of unwritten control on its power of legislation. There is no doubt that an independent body should be formulated to keep a check on the powers of Parliament by setting some commission representing all the three segments – judiciary, legislative and executive or setting up of some joint standing committee of both houses to keep a check on the role of the Senate. But it takes a long political process that results in just wastage of resources. Then, why not the courts play that important role? A court is an independent and impartial organ of the government in a democracy. The judges could be the best resources to decide on legal and constitutional disputes. They can better develop the methods to resolve the legal issues and offer quick answers to constitutional riddles. It, of course, doesn’t imply that all constitutional rules come in the legal jurisdiction. The High Court has throughout expressed about some parts of the Australian constitution that do not come under the preview of courts. The example of Indian constitution on ‘directive principles’ in part IV of the Constitution of India, taken from the 1937 constitution of Ireland, describes its provisions, which shall be “fundamental in the governance of the country”, but “shall not be enforceable by any court”. It is worth noting that in India, the Supreme Court has started taking help of the directive principles to explain terms like ‘life’ and ‘liberty’ to give a judicial meaning of the terms. The ground reality in the Indian political scenario is more than just explanation of constitutional terms. On many occasions, the judiciary has acted on its own initiatives to compel the law enforcing agencies to take action against the guilty and punish them. Not only that, it has brought to books the government machinery found lacking in fulfilling its responsibilities, be it the local bodies like Municipal Corporations or any organ of the government. The decisions taken by the courts are bound on all segments, be it private or public. The courts accept PIL – public interest litigation and bring the culprits behind bars. The electorate – the masses have praised this welcome change in the judiciary. Parliamentarians, sometimes, have expressed suffocation as the ruling political parties find their hands tied back as they can’t take undue political benefits from the prevailing circumstances. In India, courts have become pro-active but it is not the same case in all erstwhile colonies of Britain. Take the example of Australia – it has been under the influence of ‘Parliamentary sovereignty’ throughout. Australia has been under the impression of Dicey. No specialist court has been formed to review the constitutional laws in Australia. It is also visible from the history of constitutional courts that Australian courts don’t have a heavy load of constitutional cases as part of their routine workload. Does it mean that Parliament, as the most important pillar of democracy, cannot carry out its responsibilities judiciously? It can also happen sometimes that laws reviewed by the judiciary are not taken in the right spirit. But at the same time, Parliament can overrule the decisions of courts by enacting another law, forbidding external interference in its affairs as well as changing its own laws if they are misconceived – subject them to democratic check. But Parliament cannot save its face when judges, after reviewing the constitution, find some Acts of Parliament illegal. See the remarks in this context of the Supreme Court of United States – the constitution is “superior paramount law, unchangeable by ordinary means”. Both, the Parliament and the judges’ are bound by this explanation of the constitution. At least in Australia, people have the means to change the constitution. The major responsibility of reviewing the role of judges lies with its people. As judicial review serves the cause of democracy, it can be brought to the democratic control. This is the reason, the Australians need to adopt a method to amend the constitution.(http://www.austlii.edu.au/au/other/alrc/publications/reform/reform74/09.html ) The issue of the role of Parliament in the context of human rights in the UK has been deeply debated between David Feldman and Jean Corston, legal advisor and chair of the Joint Committee on Human Rights respectively in page 1 of 8, Parliament and Human Rights in the UK: Two Years On. Feldman has found fault with the unwritten constitution of Britain as the reason behind a weak Parliament. Till 1980, there was one party government for many years In Britain. As a result, the court was the only instrument to check the government, as there was no sound opposition political party to find faults with the ruling Thatcher government. The liberties and freedom of the people were easy targets in the absence of a powerful opposition party. Hence, the idea of Bill of Rights was thought as a formidable tool to empower the courts as well as the Parliament to safeguard the liberty and freedom of the people, which was at stake. The solution provided was the setting up of a Human Rights Scrutiny Committee as during the period of 1980s, courts were bound by legal and constitutional constraints. In other parts of Europe, especially US, the Bill of Rights played a very positive role in broadening the powers of judiciary to annul the unconstitutional Acts. In some of the American states, poll taxes were abolished where as in the UK, demonstrations were held to promulgate the bill of rights. The Parliament was compared to the proverbial emperor without clothes. The bill of rights was provided as a means to keep in check the power of the executive. There was another lobby of lawyers, intellectuals, politicians and social activists. They were opposing the bill of rights in the fear that domestic law would become subservient to laws of European Convention of Human Rights (ECHR). The alliance opposing the bill perceived it as merely shifting of power for making laws from democratically elected representatives to judiciary, which was not an elected body, and as such not responsible to the people. Hence, the idea of Human Rights Scrutiny Committee could clear the doubts of messing up the powers instead of judiciously dividing them. A People’s Charter was printed in 1991 to propose a bill of rights to be included in ECHR with the three organs of the democracy – executive, legislature and judiciary playing their part. It envisaged the government to check if a new statute was aggressive on human rights, courts were to be given the authority for the first time to review the acts of legislation and executive for conformity to human rights and members of Parliament being part of the scrutiny committee, would feel honoured. In the mean time, New Zealand’s bill of rights emerged. It was not based on the lines of bill of rights of America, Canada and Germany. It didn’t allow courts to quash primary legislation and gave important responsibilities to parliamentary committees. In the UK bill of rights also, prominent right to the final say was kept for the Parliament and finally it was included in the ECHR. The White Paper stated clearly about the role Parliament had to play. “Parliament itself should play a leading role in protecting the rights which are at the heart of a parliamentary democracy." David Feldman has laid down the important role played by the scrutiny committee in the formation of bill of rights. “But the formidable reputation the Committee already has – both inside and outside of Parliament – could undoubtedly not have been achieved without this scrutiny role. It could also not have been achieved without the undoubted skills of its Chair and legal advisor…”. The central role played by David Feldman in the formation of bill of rights was crucial to its enactment.(http://www.lse.ac.uk/Depts/human-rights/Documents/Parliament_and_HR_in_the_UK.pdf ) After writing this much on the question of Parliament v courts, it won’t be irrelevant to have a look at the latest news on the BBC about the views of Tony Blair, the British Prime-Minister. It says he is considering re-writing the Human Rights Act. (Thursday, 18 May 2006, 02:07 GMT 03:07 UK)http://news.bbc.co.uk/1/hi/uk/4990414.stm#middle Let us also have a look what Lord Falconer of Thoronton, Secretary of State for Constitutional Affairs and Lord Chancellor, is saying in his foreword to the initiative taken by the government to update the constitution and the legal system. As there are plans in the pipeline to form a new Supreme Court, the paper seeks the views of all concerned to decide on the responsibilities of the Supreme Court. In another paper, it attempts to find out the views on the establishment of a new Independent Judicial Appointments Commission. The center of attention will be the relation of the judiciary with the executive and the legislature. The government wants to promote the freedom of the judiciary from the legislative and the executive due to the increased public demand for an impartial Supreme Court. On 12 June 2003, the government had already expressed its desire to disunite the highest appeal court from the second house of Parliament and bumping off the Lords of Appeal in Ordinary from the legislature. Of course, it is a good sign that the UK government is taking the steps in right direction by giving powers to the judiciary and putting it on a higher platform, consistent with the popular mood of the public in general.(http://www.dca.gov.uk/consult/supremecourt/ ) Bibliography: http://www.legalserviceindia.com/constitution/const_uk.htm http://en.wikipedia.org/wiki/Factortame_case http://en.wikipedia.org/wiki/Parliamentary_sovereignty http://eprints.ouls.ox.ac.uk:81/oxjlsj/hdb/Volume_20/Issue_01/abstracts/200131.sgm http://www.austlii.edu.au/au/other/alrc/publications/reform/reform74/09.html http://news.bbc.co.uk/1/hi/uk/4990414.stm#middle http://www.dca.gov.uk/consult/supremecourt/ Additional Location(s): http://eprints.ouls.ox.ac.uk:81/oxjlsj/hdb/Volume_19/Issue_03/abstracts/190365.sgm http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm Read More