A Cornerstone of the UK Constitution - Assignment Example

A Cornerstone of the UK Constitution The concept of Parliamentary Supremacy has traditionally been a cornerstone of the UK Constitution. Albert Dicey gave a classic exposition of the concept in his book Introduction to the Study of the Law of the Constitution: “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.”1 The doctrine has three key connotations. First, Parliament can make law concerning anything; second, no Parliament can bind its successor (They cannot pass a law that cannot be changed or reversed by a future Parliament) and third, no body except Parliament can change or reverse a law passed by Parliament. Therefore, traditionally all rights of UK citizens were granted by the Parliament and were subject to abrogation at the discretion of the Parliament unlike other countries like USA, Germany or India where the fundamental rights were Constitutional rights were entrenched in the Constitution thereby limiting the Parliament’s power to enact any law in violation of those rights. In such countries governed by written Constitutions, Courts have the power to strike down any legislation of the Parliament in contravention of the fundamental rights.2 In fact, it was believed that there was no need for Constitutionally entrenched rights in UK as there was “freedom.” In the aftermath of World War Two, Britain played a crucial role in the conception and drafting of the European Convention on Human Rights (“ECHR”). UK was one of the first countries to sign the Convention. Yet for 50 years, UK failed to incorporate it into its domestic law, due to a historic hostility based on two misconceptions. First, an outdated - and exaggerated - view of the efficacy of political accountability as a means of securing the protection of fundamental rights. Secondly, a fear of undermining Parliamentary sovereignty and transferring power to unelected Judges. John Major famously said, “We have no need of a Bill of Rights because we have freedom”. However, prior to the Human Rights Act3 (“HRA” or the “Act”), “freedom” was no more than what was left over after all the law's prohibitions had been obeyed. And that freedom gave no specific protection against the acts or omissions of public bodies that harmed fundamental rights. No doubt the majority of the statutes were Convention compliant, but in some key areas it was certainly not. That is why, prior to the Act, the European Court in Strasbourg found against the UK more times than against any other country except Italy. Therefore, the HRA was enacted so that British citizens, like citizens in almost every other European country, could rely on their Convention rights in their own Courts. However, the UK did not choose a vonstitutional model of entrenching fundamental rights in this regard. As Lord Irvine of Lairg, the Lord Chancellor explained, a British approach based on entrenchment would overlook the realities of the UK unwritten constitution. It would be anathema to the political and legal culture of the United Kingdom under which ultimate sovereignty rests with Parliament. That is why the Government, in the HRA has instead adopted a model which accommodates the sovereignty principle.4 When Lord Irvine introduced the Human Rights Bill in the House of Lords on 3 November 1997, he expressed his conviction that it would “deliver a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured.”5 The HRA handles the supposed tension between Parliament and human rights by “institutional dialogue”.6 The institutions expressly involved are the courts, executive government and Parliament. The Act expressly protects Parliamentary sovereignty. Section 4(6), for example, makes it clear that if a statute is declared incompatible, it nevertheless continues to be enforceable. Unlike the United States, UK does not have a Constitutional Court with the power to strike down Acts of Parliament. So it is for Parliament to decide whether it should pass remedial legislation; and it is under no legal obligation to do so. Further, section 6(3) excludes Parliament from the definition of "public authority", so that if Parliament acts incompatibly with the Convention, this is not made unlawful by section 6(1). Parliament can therefore legislate incompatibly if it chooses. The Court joins the conversation when a claim that a statute breaches Convention rights arises. Under section 3, it must firstly try to find an interpretation of the provision in question that does not breach Convention rights. The House of Lords has looked to the rule of law as the basis for what has been termed a 'principle of legality'.7 In Secretary of State, Ex Parte Simms,8 Lord Hoffman expressed that principle as follows: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost…In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.” In the event that the Court is unable to interpret a statute in conformity with the fundamental rights because of the intellectual absurdity of such an interpretation, then it may make a “declaration of incompatibility”. The government must respond, as a matter of political necessity, though not of law. It can refuse to act on the declaration, in which case it must face public debate, as well as possibly seeing the case taken to the European Court of Human Rights, with the possibility of losing again, and being required to amend the legislation after all, albeit after a few years delay.9 Or it can decide to amend the statute, using a special “remedial order” which enables the offending provision to be amended by the Minister. Thus, the HRA retains Parliament's legal right to enact legislation which is incompatible with the Convention but it dramatically reduces its political capacity to do so by introducing a limited form of constitutional review, which serves as a political and perhaps moral disincentive to legislate incompatibly. As Professor David Feldman has said: “Parliament may legislate in such a way, but has a heavy responsibility to ensure that it does not do so lightly, or for inadequate reasons, or inadvertently.”10 This is why section 19 of the Act is important. It requires the Minister introducing a Bill to Parliament, to make a statement, either that, in his view, the Bill is compatible with the Convention; or that, although he is unable to give that assurance, the Government nevertheless wishes the House to proceed with the Bill. This guarantees an informed consent on the part of Parliament. It will not legislate incompatibly with the Convention, without being absolutely clear that it is doing so. Section 19 also triggers Parliament's second principal interest under the Act: its scrutiny function. The Act enhances this role, by giving Parliament a basic set of standards, against which to scrutinise all legislation that comes before it. Thus, “Section 19 squarely places human rights at the heart of the legislature’s role: law-making. Parliament’s formal role thus includes defining and refining the meaning of human rights, which in turn defines and refines our understanding of democracy. Parliament has a legitimate voice in the human rights project.”11 Judicial deference to Parliament does not extend to subordinate legislation, or to public authorities, whose actions must be consistent with Convention rights (unless the inconsistency is necessitated by Act of Parliament). Whether, the HRA has transformed UK into a truly Constitutional state is subject to much debate. However, there cannot be any doubt that real constitutional changes have been brought about by the Act. Sir Sydney Kentridge opines: “In the United States the written Constitution, including the Bill of Rights, has been referred to as “the Silent Sentinel,” meaning that the very existence of the Constitution induces legislators (and drafters of legislation) and administrators to respect and give effect to the rights embodied in it—well before any question of judicial review arises. I believe that the Human Rights Act both before and after it came into force in October of last year has been just such a silent sentinel. There is already much evidence that ministries and both Houses of Parliament are sensitive to the requirements of the Act…All in all I conclude that the Human Rights Act has given us a real bill of rights and that it will establish a new principle in our constitutional law.”12 This fact however, is disputed by Lord Irvine who believes that the HRA is a compromise between the principle of Parliamentary Sovereignty and the need to protect fundamental rights.13 However, he also acknowledges the impact of that HRA has had on the UK Constitutional order. A measure of its impact has been the range of idiom with which commentators have tried to describe it. It has been, variously, a dog that has not yet barked, a litmus test, rights that dare not speak their name, a magnetic field, a powerful solvent, and even an iatrogenic disease.14 In addition to making the Parliament more sensitive to human rights issues, cautious in violating them and an independent review by the Courts as to whether a statute is incompatible, it also changes the way Courts perceive their function of judicial review. Traditionally, judicial review had been strictly restricted to the procedural aspects and did not allow the Courts to judge the merits of a governmental action. When Lord Denning, M.R. stated, “I go further. Not only must he be given a fair hearing, but the decision itself must be fair and reasonable,” on appeal Lord Chancellor and Lord Brightman lost no opportunity to rebuke such a proposition on the ground that judicial review is not concerned with the decision but with the decision-making process.15 However, judicial decisions after the HRA show the change in the role of the Court to reviewing the substantive reasonability of restrictions on fundamental rights. Consequently, in the case of Daly a prisoner claimed that searches of legally privileged correspondence in his cell, carried out in his absence, violated his rights under Article 8.16 The House of Lords, allowing his appeal, recognised the need for these searches to take place and - on occasion - to take place in the prisoner's absence. But it held that the policy of routinely excluding all prisoners during these searches could not be justified. In short, it went further than necessary. The judgment in that case is an instructive example of how the Courts view their enhanced role under the Act. Lord Steyn, for example, identified the differences between the traditional grounds of review and an approach based on proportionality: “First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is in the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.”17 In the “prison babies” case the appellants challenged the Prison Service's policy of not allowing babies to remain with their mothers in prison beyond the age of 18 months.18 The Court of Appeal followed the Daly approach and considered whether the application of this policy in the cases before it was really proportionate to the legitimate aims it sought to pursue. The Court of Appeal dismissed one prisoner's appeal, but allowed the other's. And it is notable that the Master of the Rolls, Lord Philips, said: “Before the introduction of a rights-based culture into English public law these applications for judicial review would have been quite unarguable.”19 Therefore, there have been real changes in the UK Constitutional order with greater sensitivity towards issues of human rights brought about by a redefinition of the traditional roles of the three organs of the State. However, that does not mean that UK has been transformed from a Parliamentary to a Constitutional state. In 1942 Justice Robert Jackson of the United States Supreme Court said: “The very purpose of a bill of rights is to withdraw certain subjects from the vicissitudes of political controversy...”20 However, the HRA does not withdraw the fundamental rights from the Parliamentary domain and Parliament still retains the power to legislate in contravention of these rights. The HRA places effective moral and political restraints on this power. Here it is apt to remember Lord Reid’s observations in Madzimbamuto v. Lardner-Burke in 1969: "It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.” 21 The HRA is a pragmatic compromise, a benign and workable technique to give a reasonable measure of protection to fundamental rights in a practical world.22 The present Constitutional structure in the UK can be said to be in a transitory phase. While on the one hand in-roads have been made into the powers of the Parliament by placing real social, moral and political incentives not to violate fundamental rights,23 on the other hand the Parliament still retains the power to do so and Courts cannot strike down a legislation with reference to any Constitutional document or principles.24 The position can be best summarized in the words of Lord Justice Laws, quoting a Judge of the Supreme Court of Canada: "In its present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy…Parliament remains the sovereign legislature; there is no superior text to which it must defer…there is no statute which by law it cannot make. But at the same time, the common law has come to recognise and endorse the notion of constitutional, or fundamental, rights.”25 REFERENCES 1. Albert Dicey, Introduction to the Study of the Law of the Constitution (1885) 2. Anthony Lester, The Human Rights Act 1998 – Five Years On, Third Annual Lecture under the auspices of the Law Reform Committee of the Bar Council, 25th November 2003 3. Balkissoon Roodal v The State [2003] UKPC 78 4. Brian Thompson, Textbook on Administrative and Constitutional Law (3rd Ed., 1997) 5. Chief Constable of North Wales Police v. Evans, (1982) 1 WLR 1155 6. Francesca Klug, “The United Kingdom Experience” in Christine Debono and Tania Colwell (eds), Comparative Perspectives on Bills of Rights, National Institute of Social Sciences and Law, 2004 at 6 7. H. W. R. Wade and C. F. Forsyth, Administrative Law (8th ed., 2000) 8. Human Rights Act 1998 (UK), c 42 (in force from 2000). 9. International Transport Roth GmbH and Others v Secretary of State for the Home Department [2002] 3 WLR 344 10. Jamie Gardiner and Dominique Saunders, A Charter of Rights would play a valuable role in reconnecting Australian law with International Human Rights Jurisprudence, (2004) 78(12) LIJ 40 11. John Raine and Clive Walker, The Impact on the Courts and the Administration of Justice of the Human Rights Act 1998, Lord Chancellor's Department Research Series No. 9/02 12. Julie Debeljak, Rights protection without judicial supremacy – a review of the Canadian and British models of Bills of Rights, (2002) 26 Melbourne University Law Review 285 13. K. D. Ewing and C. A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914–1945 (2000). 14. Lord Irvine of Lairg, The Human Rights Act Two Years On: An Analysis, The Inaugural Irvine Human Rights Lecture, Durham University, 1 November 2002 15. Lord Irvine, "Constitutional Change in the United Kingdom:British Solutions to Universal Problems,” the 1998 National Heritage Lecture, the US Supreme Court, Washington DC, Monday, 11 May 1998 16. Lord Irvine, The Impact of the HRA: Parliament, the Courts and the Executive, (2003) PL 308 17. Madzimbamuto v. Lardner-Burke 1 AC 645 18. Professor David Feldman, Parliamentary Scrutiny of Legislation and Human Rights [2002] PL 323 19. Professor Vernon Bogdanor, The Human Rights Act: Cornerstone of a New Constitution, Gresham College, 25 January 2005. 20. R (Daly) v Secretary of State of the Home Department [2001] 2 AC 532 21. R (P) v Secretary of State of the Home Department [2001] 1 WLR 2002 22. R v Home Secretary; Ex Parte Pierson [1998] AC 539 23. R v Spear, Hastie and Boyd in the Courts-Martial Appeals Court, [2001] QB 804 24. Secretary of State, Ex Parte Simms [2000] 2 AC 115 25. Sydney Kentridge, Human Rights: A Sense of Proportion, The Tanner Lectures on Human Values, Delivered at Brasenose College, Oxford, February 26 and 27, 2001 26. West Virginia State Board of Education v. Barnett 319 US 625 (1942) 27. Woolf LCJ, Human Rights - Have the Public Benefited, The British Academy Thank Offering to Britain Lecture, 15 October 2002. Read More