The Effect of European Law and Human Rights on the Lawmaking Process in the UK - Case Study Example

 The effect of European Law and Human Rights on the Lawmaking process in the UK Introduction The tension between European Community law (EC) and national law is arguably the most debated topic of constitutional law1. The convention of Parliamentary supremacy is rooted within the British constitution as a fundamental limb of the separation of powers doctrine2. Constitutional convention in fact dictates that the judiciary is bound by Parliament and the case of R v Jordan3 asserted that the courts had no power to challenge the validity of Parliamentary legislation. However, the incorporation of community law through the implementation of the European Communities Act 1972(the ECA), which expressly gives legal effect to EC law has led to the creation of what has been described as “a new legal order4”, directly attacking traditional constitutional convention of national sovereignty and shifting the dynamic in the lawmaking process in the UK.5 Conversely, the established convention that Parliament cannot bind its successors has led commentators to argue that theoretically the ECA could be repealed by Parliament and as such, does not in reality change the relationship between EC law and national supremacy6. Whilst this may be so in theory, the political machinations of Government demonstrating a bias for cohesion and collaboration with the EC renders it highly unlikely that Parliament will repeal the ECA. Moreover, 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 law. 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 impact on Parliamentary Sovereignty in the lawmaking process and the separation of powers from EC initiatives has further been fuelled by the implementation of the Human Rights Act 1998 (HRA). 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”.7 The focus of this analysis is to critically evaluate the effect of EC law and human rights on the lawmaking process in the UK. I shall consider EC law and human rights in sections 1 and 2 below respectively and conclude with an overview. Section 1: EC Law In considering the evolution of supremacy of EC law, the starting point is the 1963 ECJ decision in Van Gend en Loos8 which emphasised that European law was to be distinguished from regular public international law. Furthermore, in according direct effect to the EC Treaty, Regulations and Directives, the ECJ arguably created the first direct conflict between European and national law, creating ambiguity as to which law shall prevail9. The ECJ elucidated this point in the case of Costa v ENEL10, asserting that in the case of conflict between European and national law, European law prevails. From this perspective, it appears that provisions of Community law are “by their entry into force render automatically inapplicable any conflicting provision of current national law11”. It has been commented that this concept of primacy in application as opposed to primacy in validity, also applies to member states’ constitutional provisions, leading to arguments of a European constitution incorporated through the back door, which further encroaches upon national sovereignty in the lawmaking process12. In Internatijionale Handelsgesellschaft mbH v Einfuhrund Vorratsstelle fur Getriede und Futtermittel13 the ECJ utilised the strongest language with respect to primacy of EC law over the national constitution of member states: “The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of national constitutional structure14”. The sentiment in Internationale limited the scope for misinterpretation and possible exploitation of ambiguity by asserting that the supremacy principle went to the very core of established member state fundamental constitutional rights and lawmaking institutions. These assertions left constitutional commentators reeling from the direct attack to established enshrined rights under member state constitutions15. Applied with the doctrine of direct effect as established in the Van Gend en Loos 16case, the implications of the Internationale decision attacked the very core of existing constitutional convention17. It implied a duty on the judiciary to apply EC law over national law, thereby undermining the doctrine of the separation of powers and transparent law reform18. However, the Internationale decision was nevertheless criticised for the ambiguity of its parameters and Mayer comments that what “is still contested…… is primacy over national constitutional law, and this is where critics of the Court’s primacy concept have been most visible19”. Furthermore, Mayer comments: “the absoluteness of the ECJ’s vision of European law primacy over each and every norm of municipal law and lawmaking process -including any provision of the municipal constitutions has raised the question of whether the ECJ might have overstepped its competencies by establishing such an absolute concept of primacy20”. Whilst the ECJ’s purpose is to implement EC law, the Internationale decision asserting EC supremacy over national constitutional law arguably ignores the reality of how member states interpret EC law and implement legislative measures. Indeed as pointed out by Mayer21, the implementation of the supremacy concept goes beyond a mere question of interpretation, which is clearly demonstrated by the national courts’ initial reluctance to accept unconditional supremacy of EC law22. Moreover, from a UK perspective the implications of Internationale arguably grants the judiciary increased lawmaking powers, which encroaches Parliamentary territory in the role of democratic law reform. Although the wording of the ECA arguably supports the assertions of the Internationale decision, the UK courts initially treated the ECA as a principle of construction as opposed to expressly acknowledging supremacy of EC law. This is evidenced by the decision in Pickstone v Freeman plc23, where the House of Lords adopted a method of interpretation which resulted in elimination of the conflict with EC law biased towards a preference of national law provisions. The decision led some critics to argue that the ECJ assertions in Internationale were merely a false dawn regarding supremacy of EC law24. However, in Transport, ex p Factortame (No.225), it was held that the principle that an injunction could not be obtained against the Crown could be set aside if it prevented the granting of interim relief in a dispute governed by EC law. This major shift saw the House of Lords expressly acknowledging primacy of EC law over national legislation and demonstrated the limitations on Parliamentary intention being implemented if legislative provisions contravened rights under EC law26. The Factortame decision was further significant due to the House of Lords’ effective entrenchment of the ECA in fettering continuing supremacy of Parliament, which contradicts the convention that Parliament cannot bind its successors27. Sir William Wade described this as a constitutional revolution, whereby “Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible”28. This shift in approach demonstrated that the courts are willing to apply supremacy instead of circumventing the concept with strained concepts of purposive construction. Nevertheless, ambiguity still remains as to how the courts would react if Parliament were ever to enact legislation expressly repealing EC law29. Wade argues that “if there had been any such provision in the Act of 1988 we can be sure that the ECJ would hold that it was contrary to Community Law to which under the Act of 1972 the Act of 1988 is held to be subject30”. This not only suggests that doctrine of implied repeal has been abolished it appears to cement the independence of the judiciary under the separation of powers at the expense of Parliamentary supremacy in the lawmaking process. Conversely, Lord Denning presiding in Macarthys Ltd v Smith31 asserted: “If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament32”. However, the Macarthy’s decision was prior to Factortame and it remains to be seen whether the House of Lords will repeal this in the future. Nevertheless, Denning’s argument in Macarthy appears to achieve gravitas by virtue of the decision in Jackson v AG33. Whilst this decision wasn’t addressing EC law or human rights issues, it is an important indication of the judiciary’s view regarding Parliamentary autonomy in the lawmaking process. In Jackson, the House of Lords held that provided a legislative document satisfied the relevant rules and was passed in the manner and form required it could not be subject to the court’s scrutiny34. Section 2 - Human Rights Section 2(1) of the HRA asserts that “A court or tribunal, determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights35. Moreover, whilst the HRA does not in fact implement any Bill of Rights as such, section 3(1) does impose a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts36”. If we consider these developments regarding the tension between Community law and national sovereignty in context of the HRA, the UK courts have a positive duty to apply Convention rights. 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, Parliamentary sovereignty was paramount, and prevented any significant increases in levels of human rights protection under national law prior to the HRA37. Moreover, Parliament was free to remove or control individual liberties at any time by passing appropriate legislation. 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 arguably forcing Parliament’s hand to change legislation that is incompatible due to the obligation under section 4(2) of the Act to make declarations of incompatibility39. 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. Previously, the judiciary would exploit gaps or ambiguity in legislation to grant human right protection through the back door. However, Parliament could always overturn such decisions by enacting retrospective legislation. To circumvent this obvious constitutional problem, Lord Irvine of Lairg’s comments during the Parliamentary debate on the HRA asserted that section 3(2) of the HRA guarantees that “courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the Convention rights…. It is then for the government and Parliament to consider what action should be taken”40. The interpretative obligations set out in section 3 of the HRA impacts all cases “civil or criminal, private or public, against private legal persons or public authorities” where a Convention right is at stake and imposes a statutory requirement that all legislation “must” be read and given accordingly with Convention Rights, so far as possible41. Lord Cooke of Thornton commented on the legal significance of the HRA by asserting “section 3 will require a very different approach to interpretation of that to which the English Courts are accustomed. Traditionally the search has been for the true meaning that would prevent the making of a declaration of incompatibility42 Indeed, in the House of Lords case of R v A, 43Lord Steyn asserted that section 3 of the HRA “applies even if there is no ambiguity in the language in the sense of being capable of two different meanings”44. This does not, however give courts in the UK power to strike down the Act or set it aside, thereby preserving the doctrine of Parliamentary supremacy in theory. When a higher court such as the House of Lords, Privy Council or Court of Appeal is satisfied that a provision is incompatible with the European Convention on Human Rights, it may under section 4(1) of the HRA grant a declaration of incompatibility to that effect. Although this declaration may trigger the taking of remedial action, it will not impact the validity or continuing enforcement of such a provision and it is not even “binding on the parties to the proceedings to which it is made”45. To date, the courts have exercised the power of incompatibility sparingly46. Furthermore, section 2 of the HRA implements an obligation for the British courts to take into account the case law of the ECHR, which has impacted the separation of powers doctrine and judicial precedence as the judiciary is permitted to apply the principle of proportionality and the protection of human rights as protected by the Convention47. However, Lord Steyn warned that, proportionality allowed the courts to review such Acts that are incompatible with fundamental rights and was only permitted where there is strong evidence of irrationality48. Indeed, in the case of A v Home Secretary49, it was held that detention powers under the Anti Terrorism, Crime and Security Act 2003 (the Act) were incompatible with the right to individual liberties under the ECHR. However, as decisions under the Act and the Asylum and Immigration Appeals Act 1993 are made by the Secretary of State applying provisions made by Parliament50this arguably creates a lacuna in the protection of ECHR rights. Moreover, the HRA clearly redefines the general legislative process of the sovereign Parliament51. Under section 19 of the HRA a minister in charge of a bill would be required to make a statement of compatibility prior to the Bill’s second reading. This statement should indicate whether or not the proposing Bill complies with protected Convention rights. In this manner, section 19 impinges on sovereignty of Parliament in order to comply with Convention rights. However, there are clearly limitations and the practical reluctance of national courts to make declarations of incompatibility has led to artificial interpretations of legislation to preserve the appearance of compliance with Convention rights. This is further limited by the fact that only higher courts have power to declare incompatibility under Section 4. Indeed Lord Steyn declared that, “it is crystal clear that the carefully and subtly drafted HRA preserves the principle or parliamentary sovereignty”52. Conclusion: Overview The above analysis demonstrates that whilst the theoretical implications of the HRA as the most important piece of legislation in the UK cannot be underestimated, uncertainty still remains as to the extent of the EC law as a fetter on Parliamentary sovereignty. Moreover, the fact that the judiciary can merely determine whether rights have been breached arguably undermines the importance of the HRA as constitutional revolution for individual rights. With regard to the effect of EC law outside the parameters of the HRA, uncertainty still remains as to the extent of the EC law as a fetter on Parliamentary sovereignty. Whilst the UK courts are likely to take a position “somewhere in between,” in order to preserve Parliamentary intention, the current position clearly highlights the fundamental role of the Internationale case in the evolution of national law towards EC supremacy, which has now become a reality as opposed to mere rhetoric. BIBLIOGRAPHY Karen Alter (2001). Establishing the supremacy of European law. The making of an international rule of law in Europe. H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow G. Clayton (2008) Immigration and Asylum law. 3rd Edition Oxford University Press. Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). Rebecca Huxley-Binns., & Jacqueline Martin., Unlocking the English Legal System (Hodder Arnold 2005). Jowell, J & Oliver, D., (2007).The Changing Constitution. Oxford University Press. A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. Franz C Mayer (2005) Competences- Reloaded? The vertical division of Powers in the EU after the New European Constitution, 3 the Journal of International Constitutional Law 493. H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Gary Slapper, Sourcebook on the English Legal System (Routledge Cavendish 2006). Legislation European Communities Act 1972 Human Rights Act 1998 Websites www.opsi.gov.uk Read More