The Issue of Constitutionality and the Rights Granted to Individual Citizens - Case Study Example

Parliamentary sovereignty versus Constitutionality Introduction: There are three major branches of Government – the legislature, the executive and the judiciary. In many countries, these three branches have equal powers, thereby each branch of Government functions as a system of checks and balances to the others. However in the case of the UK, Parliament, which is the legislative arm of Government has been endowed with supreme powers that supersede the other branches of Government. However, the basic objective behind the framing of laws is to protect the rights of the individual citizens, which can be enforced only through an empowerment of the judiciary. Therefore in the UK, the supremacy of Parliament often rises in conflict with the issue of constitutionality or the rights granted to individual citizens. This was elucidated by Lord Hoffman in 2000, when he pointed out the differences in the powers of the legislators, which were limited in other countries through the Constitution, but which was not the case in the UK, where Parliamentary Sovereignty subordinated the power of the judiciary that upholds the rights of individual citizens. The concept of Parliamentary Sovereignty: In the United Kingdom, the three branches of Government are not granted equal powers. Parliament has been deputed as the supreme authority to make the laws of the land, through the principle of Parliamentary Sovereignty. Parliament comprises the King, The House of Lords and the House of Commons, who acting together jointly, enjoy undisputed power. In essence this means that Parliament is not subject to any limitations or checks and balances by the Courts. In fact the Courts have no power to overturn any of the laws laid down by Parliament or to declare them invalid. This has been amply stated by AV Dicey1 as follows; “In theory Parliament has total power.  It is sovereign.” In reference to the 1950 Commons Resolution attributing Parliamentary sovereignty, it has been suggested that they be viewed as “co-extensive with the scope of Article 9.”2 This addresses the need for Parliamentary Sovereignty to take into account the factors of rights of individuals and human rights. According to Dicey3, Parliamentary Sovereignty may be divided in terms of four distinct powers ascribed to Parliament which are: (a) Parliament is empowered to pass laws on any subjects (b) Parliament is empowered to pass regulating any activity, anywhere and by anyone (c) Parliament cannot bind its successors through an insistence on their adherence to a particular form and manner of legislation (d) The laws laid down by Parliament cannot be challenged by the Courts. However, this raises the issue of Constitutionality. Most Governments such as those in the United States are characterized by the distribution of power equally between the three branches of Government – the legislature, the executive and the Judiciary. In the event of an abuse of legislative power through an infringement upon individual rights of citizens, the Constitution imbues the Judiciary with the power to challenge the law. But this is not the case in the U.K. The UK Constitution is not codified and does not exist in a written form. Unlike countries such as the United States for example, constitutional principles have been upheld in the UK based upon legal precedent and upon the principle of fair dealings as passed down from generation to generation. Therefore in effect, the system of functioning in the UK is guided by principles that were established in medieval times which are not fully relevant in the present time. Another significant difference that may be noted in the UK Constitution vis a vis that of other countries is in the separation of powers. In most countries, an individual who is a member of one branch of Government cannot also be a member of another branch of Government. In the UK however, the House of Lords, the House of Commons and the monarchy are all part of Parliament. There is a requirement that all members of the executive branch of Government are obliged to also be members of Parliament which is the legislative arm of Government, thereby undermining the separation of powers of the various branches of Government. Therefore, there is the danger of abuse of legislative power by the Parliament to the detriment of individual rights. Constitutionality vs Parliamentary Sovereignty: In the case of Pepper v Hari4, Lord Browne Wilkinson’s judgment referred to the need to consider the issue of constitutionality vis a vis Parliamentary Sovereignty. While the legislative powers of Parliament are undisputed, nevertheless in the interpretation of the laws, it becomes necessary to consider not merely the written word itself, but the spirit of the law. He referred to legislation which is “ambiguous or obscure” and where implementing it according to the “literal meaning” would constitute an “absurdity”, in which case it was necessary for the judicial arm of Government to take into account “legislative intention lying behind the ambiguous or obscure words.”5 Therefore this mooted an approach whereby Parliamentary sovereignty cannot be defined as a “blind obedience to statutory words” but rather as giving “effect to legislative intent”, whereby the responsibility lies with the Courts to protect citizens from the mistakes of the legislators6. According to Lord Hoffman’s statements, the issue of Parliamentary sovereignty rises in conflict to the principles of legality and the need to uphold the fundamental rights of citizens, which is the basic purpose behind the framing of laws by any Government. He states that “fundamental rights cannot be overridden by general or ambiguous words”7 Therefore, there may arise instances where there is a need to interpret the law differently. It may be necessary to avoid a literal interpretation of the law according to written statues and rely upon interpretation of the law in accordance with the intent of the legislators in framing the law. Since the supreme objective of the law of the land is to protect the rights of its citizens, laws that are enforced literally but impact negatively upon human rights cannot be said to follow the original intent of the legislators in framing the law. In the case of Entick v Carrington8, the Court was faced with the issue of trespass and seizure of the property of an individual vis a vis the powers of the Secretary – an agent of Parliament. This is a case that clearly demonstrates the need to accord highest importance to individual rights which cannot be infringed through the Parliamentary privilege. Section 3 of the Human Rights Act of 1998 provides: “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.”9 In the case of Entick, the rights of Entick to his property and the violation of this right through trespass and seizure of his property were deemed to supersede the power of a Parliamentary official to exercise his powers. Another important case concerning UK Constitutional law was that of Burmah Oil Co v Lord Advocate10. In this instance, rubber plantations in Burma were destroyed by British forces during the Second World War in order to prevent them from falling into the hands of the Japanese army. Nevertheless, the court decision went in favour of the individual whose property was destroyed, who had to be reimbursed by the State. In recent times, after UK has become a part of the European Union, there are instances where Parliamentary sovereignty is limited. For example in the case of Commission vs UK13, the ECJ stated that EU regulations were binding upon the member States “in their entirety” and they also stated that “a member state cannot choose to implement them piecemeal.”. The European Communities Act of 1972 subordinates UK national law to European Law. In the Factortame Case14, the decision of the ECJ took precedence over the English Courts whereby the Merchant Shipping Act of 1988 could not be implemented since it contravened the Treaty of Rome of 1957. In the case of Franovich and Bonavici15 the state of Italy was asked to make reparation to an individual for damages suffered, thereby making the State liable and superseding its national powers. In some instances, it may be necessary to override the power of the States through the Direct Effect of European law Directives, however in other cases, national law may take precedence when there are issues of threat to national security involved. Parliament is imbued with the power to make laws which are in accordance with common law principles that enforce the common good. In some instances, it may become necessary to subdue the rights of the individual in favour of achieving the common good – for example when there is an issue of national security or sovereignty. An example of this that may be cited here is the issue of terrorism which has emerged as a significant threat to national security. In order to enhance the powers of the State to crack down on terrorism, the Anti Terrorism Crime and Security Act of 200112 was passed, providing increased police powers to freeze the assets of suspected terrorists, tougher immigration regulations and authorization for searches for terrorist weapons, etc All of these impact upon individual freedoms but to a certain level, such actions are justified in the cause of national security and the preservation of peace. The violation of individual rights in some cases may be justified in order to prevent anarchy and terror, and in such cases a clamping down by the State is to be preferred over the chaos that would result from acts of terror and threats to national security which could result in more colossal damages. For example in the case of Council of civil service unions v ministers for the civil service11 an order in the Council of 1982, Article 4 stated: “….the minister for the Civil service may from time to time make regulations or give instructions…..for controlling the conduct of the service….”. Although the members of the Union objected to changes that had been made in procedures that had been followed thus far, the court, upon examination of the case deemed that there was indeed the issue of national security at stake in which case Parliamentary sovereignty would take precedence over individual rights and privileges. Union members were striking and causing confusion and chaos and in the interest of controlling a situation that threatened national security, this new legislation was deemed to be valid and perfectly legal. Conclusion: In view of the foregoing, it may therefore be noted that the intent of maintaining Parliamentary Sovereignty is indeed political in scope, as pointed out by Hoffman. Parliament has been imbued with its supreme powers in order to grant it the political power necessary to make and enforce the law. However, such legislation cannot be interpreted in a literal sense but must take into account the intention behind the framing of the laws. The function of Parliament is to serve as the arm of the public and to legislate in such a manner that it upholds the public good. However when Parliament appropriates to itself the power to make laws that violate the fundamental rights of individuals, there is a conflict that arises with the basic purpose for which Parliamentary sovereignty was imbued. Therefore, there is a need to introduce modifications within the UK system of Parliamentary sovereignty to make it more compatible with other Governments where the distribution of powers between the there branches of Government is done on a more equitable basis, and each arm of Government functions as a checks-and-balances system for the other branches of Government. In certain instances Parliamentary Sovereignty may be justified, such as for example in combating terrorism, where the fundamental rights of individuals may need to be compromised in some cases to protect the interests of the majority public and in the interests of national security. In such a case, the political goal of maintaining national security may be justified even if it violated individual rights, while in other cases it may be inappropriate and may need to be regulated and checked by the judiciary. Thereby the truth of Hoffman’s statement is established, wherein he highlights the importance of preservation of the fundamental rights of the individual and declares that political goals will have to be of an overriding nature if they are to justify any attack on individual rights.   References: * Anti Terrorism Crime and Security Act of 2001 [Online] Available at: http://www.opsi.gov.uk/acts/acts2001/20010024.htm; accessed 11/26/2005. * Burmah oil v Lord Advocate [1965] AC 75 HL * Council of civil service unions v ministers for the civil service [1985] AC 374 GCHQ[Online] Available at: http://www.ntu.edu.au/faculties/lba/schools/Law/apl/Administrat ive_Law/ukcases/Council%20of%20Civil%20Service%20Unions%20v.%20 Minister%20for%20the%20Civil%20Services%20[1985]%20A.C. %20374.htm; accessed 11/16/2005 * Cases C-6 & 9/90, Francovich and Bonifaci v Italy, [1991] ECR I- 5357 Case 128/78 Commission v UK (1979) ECR 419 * Dicey, A/.V. (1885) “Law of the Constitution” 8th edition, 1914. Oxford: Oxford University Press. * Entick v Carrington. 19 Howell’s State Trials 1029 (1765) * Human Rights Act of 1998. [Online] Available at: www.opsi.gov.uk/acts/acts1998/19980042.htm; accessed 11/26/2005 * Loveland: “Constitutional Law , Administrative law and Human rights (a critical introduction ) third edition. * R.V. Secretary of state for the home department, ex parte simms [2000] 2 AC 115 at 131 * R. v Secretary of State for Transport ex parte Factortame Ltd. and others (Factortame III), [1996] ECR I-1029, para 51 * Human Rights Act of 1998. [Online] Available at: www.opsi.gov.uk/acts/acts1998/19980042.htm; accessed 11/26/2005 Read More