Doctrine of Sovereignty and Jackson - Case Study Example

Doctrine of Sovereignty and Jackson Introduction: The case of Jackson and Others1 is significant in that the traditional notion of Parliamentary Sovereignty is being challenged. The Court of Appeal had to determine the intent of Parliament and whether a statute had been created in the first place1a. The relevance of the doctrine of Parliamentary sovereignty is more so in the context of the European Convention of Human Rights2 into UK law through the Human Rights Act of 19983, which mandates a more active judicial role. The Doctrine of Parliamentary Sovereignty: The orthodox approach to judicial review of Parliamentary mandates is based upon the absolute and indivisible sovereignty of the British Parliament4. As stated by Dicey: (a) “Parliament has the right to make or unmake any law whatever”5 and (b) no person or body may be recognized as having the legal authority to set aside or invalidate the acts of Parliament, except Parliament itself.6 Thus, the indivisibility of Parliamentary power sets it out as the source of all valid authority.7 As a result, the British power of judicial review would not include the power to invalidate Acts of Parliament, rather the Courts may only use their powers to constrain any abuse of powers by the other arms of Government.8 A judicial review will only examine the procedure9 based upon which a governmental body has arrived at its decision and may issue a mandatory order for the application to be re-reviewed. Moreover, once an Act is passed, judicial reference to the Law Commission’s Report on the Interpretation of Statues10 in order to determine the true construction of a statute is contravened on the basis that it is of doubtful benefit and a costly exercise11. Therefore, despite Parliamentary sovereignty, the scope of judicial review and interpretation of Acts has been extended. Jennings has opposed Dicey’s theory by arguing for limiting of Parliamentary power by the manner and form of the process of procedural entrapment12a. A piece of legislation would be deeply entrenced if amendment requires unanimous support within the Houses of Parliament. Jennings defines legal sovereignty by specifying that Parliament has power to make laws for the time being, but not to bind future Parliament. The power of Parliament to make laws is also subject to the rule of recognition that is to be recognized by the Courts, “including a rule which alters this law itself.”12b Hence law making will be conditioned by the rule of recognition, which will limit the powers of Parliament to bind successors in an era where rules of recognition may differ. The significance of Jackson and Others v HMAG: This case serves to further establish the fact that traditional notions of Parliamentary sovereignty are being challenged and found inapplicable. In the Jackson case13 the validity of the Hunting Act of 2004 was challenged on the grounds that it was based upon the Parliament Act of 1949, which was held to be invalid, since it did not possess the necessary Parliamentary mandate. The foundation of the British Constitution is the Parliament Act of 1911, which states that any modifications to the Act would require the consent of both Houses of Parliament.14 Section 2 of the Act of 1911 mandated that the approval of the House of Lords could be dispensed with only if a Bill was passed by the House of Commons but rejected three times by the Lords with the passage of a two year period. The 1949 Act however reduced the time period to one year and the number of sessions of the House of Lords from three to two. But unlike the 1911 Act, this 1949 Act was not passed by both Houses, it was passed only by the House of Commons and not by the House of Lords was therefore challenged as invalid. However, the Court stated that its jurisdiction in such a case would be limited, since Article 9 of the Bill of Rights states that the proceedings in Parliament may not be questioned in any court of law. It rejected the argument that the 1949 Act could be viewed as delegated legislation, interpreting it constitutionally as an authentic representation of the will of Parliament. Therefore, the Court rejected the challenge to the validity of the Hunting Act, however the significance of the case lies in the questions it has raised about the existing notions of parliamentary sovereignty. Major issues raised in the judgment: The Court of Appeal rejected the analogy of delegated legislation which was the main argument of the opposition. However, the relationship between the courts and the legislature in the context of the supremacy of Parliament was raised. For instance Lord Steyn commented on the Attorney General’s assertion that the Parliament Acts could be used to abolish the House of Lords, stating that “such an exorbitant assertion of Government power in our bicameral system” is a test of “constitutional legal principle in the Courts at the most fundamental level.”14a Lord Steyn pointed out that if the 1949 Act could be used to introduce oppressive legislation, then the same principle could theoretically also be extended to include the powers of judicial review. Lord Steyn stated that the Diceyan doctrine of Parliamentary sovereignty “can now be seen to be out of place in the United Kingdom” since it is possible that situations may arise where the Courts will need to “qualify a principle established on a different hypothesis of constitutionalism.”14b Moreover, he also questioned whether judicial review would need to be made a fundamental aspect of the Constitution which even Parliament should not be able to abolish. Lord Steyn’s statement questions the current form of the doctrine of Sovereignty based on the different hypothesis of constitutionalism. Lord Steyn’s statement for example, is in sharp contrast to that made by Lord Reid in the case of Madzimbamuto v Lardner-Burke14c where he stated that while it might be deemed “unconstitutional for the United Kingdom parliament to do certain things,” yet if Parliament did indeed choose to do them, then “the Courts could not hold the Act of Parliament invalid.” Therefore, the position stated by Lord Steyn offers a different view from the traditional invincibility of parliamentary sovereignty. Lord Hope highlighted the important role of the Courts in the prevention of arbitrary acts of Parliament. Where legislative sovereignty is the issue, the scope of powers attributed to each branch of Government may be very broad while also ascribing to certain limits. His view was that constitutional principles supported the notion of “the universal rule or supremacy through the constitution of ordinary law”, therefore the manner in which the Courts enforce the law is the controlling factor that protects individuals from arbitrary acts.14d Lord Hope noted the relevance of Parliamentary sovereignty as a function of common law, as follows: “The principle of parliamentary sovereignty which, in the absence of higher authority, has been created by the common law is built upon the assumption that Parliament represents the people whom it exists to serve."14e As a result, Lord Hope was reluctant to accept that legislative changes could be unlimited, since the changes were meant to ultimately serve the people. However, Baroness Hale was of the view that the concept of Parliamentary Sovereignty essentially means that Parliament can do anything, however the Courts are to view any action by government that could subvert individual liberty with suspicion. On this basis, she concluded that the “constraints upon what parliament can do are political and diplomatic rather than constitutional.”14f Conclusions: On the basis of the above, it may be concluded that the Jackson case has questioned the traditional notion of Parliamentary sovereignty. This case is important because it raises the issue of curtailment of the powers of the House of Lords, which in turn raises the issue of imbalances in the bicameral system. The Law Lords have questioned the relevance of the Diceyan concept of Parliamentary sovereignty and whether it serves the needs in the context of the news laws mooted by European legislation. Moreover, the application of Jennings’ criticism of the doctrine of Sovereignty means that the rule of recognition must also be taken into account; as a result such a rule may in fact alter the law within a certain context, as in the Jackson case, thereby further undermining the doctrine of indisputable Parliamentary sovereignty as spelt out by Dicey. The traditional doctrine of Parliamentary Sovereignty that renders the Acts of Parliament inviolable, except through a revised resolution by Parliament itself, has been challenged in the Jackson case, through the uncertainty created around the validity of the 1949 Act. The limited jurisdiction of the Courts was especially an issue in the Jackson case, where Parliamentary will and procedure was itself challenged. The recent Constitutional Reform Act of 2005 is directed towards strengthening democracy and enhancing the credibility of public institutions while also recognizing the value of judicial independence and the need to preserve it.21 However, in the light of this case, it appears that the Diceyian concept of Parliamentary sovereignty may no longer hold good and a more flexible approach, such as that suggested by Jennings, may be more applicable in redefining the judicial role. (1511 words) Bibliography Books/Articles: * Barnett, Hilaire, 2004. Constitutional and Administrative Law” Cavendish Publishing * Craig, Paul, 1990. Public Law and Democracy in the United Kingdom and United States of America, Clarendon Press, pp 21-22 * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press: 470-471. * ECS Wade, 1959. Introduction to A.V. Dicey: The Law of the Constitution 10th edn at xxxiv * Elliot, Mark, 2001. The Constitutional Foundations of Judicial review, Kings College Law Journal, 13(2): 44-49. * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Jennings, Ivor. 1959. “The Law and the Constitution” London: Stevens and Sons * Law Commission report titled “Report on the Interpretation of Statutes” 1969, No: 21. London: HMSO * Lord Falconer DCA: Justice, Rights, democracy Speech. Institute of Public Policy research. December 3, 2003. * Halsbury’s laws, 4th edition para 891. * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm Cases: * Attorney general v De-Keyser’s Royal Hotel Ltd (1920) AC 508 at 575, (1920) All ER Rep 80 * Jackson and Others v Her Majesty’s Attorney General (2005) UKHL 56 * Pepper v Hart (1993) 1 All ER 42 * Pickstone v Freemans plc (1989) AC 66 * R v Secretary of State for the Home Department, ex parte Fire Brigades Union and others (1995)1 All ER 888 Read More