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Sources - Sovereignty, the traditional view

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The origins of the traditional view

Traditional view of parliamentary sovereignty expressed by Dicey and others 

(A.V, Dicey born 1835, professor of law at Oxford, jurist)

 

Parliament can make or unmake any law on any subject whatever, without any legal restriction.

 

The principle stems from the election of MPs by the people who have ultimate authority.

 

Origins of sovereignty

Parliament is supreme in its law making role (the creation of statutes). In this respect no authority is above it, not even the courts.

 

Since Pepper v Hart the courts can use debates in Parliament as aids to statutory interpretation, but, the case did not change the principle of supremacy of Parliament.
 

The origins of Parliamentary supremacy can be found in the Bill of Rights 1688(9). This stated that laws could only be made or repealed by Parliament and not by the Monarch alone.

 

The modern Parliament was formed in 1707 by the Treaty of Union of England and Scotland.

 

This Act itself sought to bind all future parliaments, but because Parliament can change any law it wishes, whatever the intention might have been this could not happen.

 

There is no hierarchy of legislation, all Acts have equal force.

 

Supremacy dependant on the courts

The doctrine of parliamentary sovereignty represents nothing more nor less than a series of predictions of how the courts would decide certain issues.

 

In Blackburn v Attorney General (1971) the Court of Appeal refused to decide what it would do if Parliament passed legislation at variance with EC law.

 

Freedom to legislate on any matter

Parliament can also alter its own composition and powers

e.g. Parliament Act 1911 which removed the veto powers of the House of Lords

 

The Life Peerages Act 1958 which provided for the appointment of life peers with full voting rights.

 

Effect outside the United Kingdom

The Continental Shelf Act 1964 asserted British jurisdiction over the sea bed well beyond the limits of the territorial sea.

 

The War Crimes Act 1991 made it an offence triable in an English court for a foreign national to commit murder or other war crimes against other foreign nationals in a foreign country. 

 

Foreign Travel Orders, which allow for paedophiles to be banned from destinations where they could be a risk to children, form part of the Sexual Offences Act 2003.  Offenders can be prosecuted in the UK for acts that amount to an offence in the country visited.

 

Immoral or improper legislation is within parliament's power

It is often said that it would be unconstitutional for Parliament to do things most people would regard as highly improper, for moral, political and other reasons.

 

But that does not mean that it is beyond the power of Parliament to do them.

 

The War Damage Act 1965 retrospectively deprived claimants of rights to compensation for destruction of their property by the state and thus reversing the decision of the House of Lords in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] HL.

 

Cheney v Conn [1968] concerning taxation used for nuclear weapons; it is not for the courts to decide if a statute has an unlawful purpose.

 

Many activities have been made lawful by Parliament that many consider immoral, improper or plain wrong.  These include abortion, gay sex, abolition of hanging, laws against discrimination, marriage between relatives, legalising gambling and liberalising alcohol laws.

 

Any other matters

His Majesty’s Declaration of Abdication Act 1936 altered royal succession.

 

Especially, parliament can alter or extinguish rules of common law or equity, which it frequently does.

 

Binding a successor

Parliament cannot bind its successors

 

No parliament can bind a successor by purporting to make a law that cannot be repealed: whatever one Parliament can do, another can undo.

 

Of the 37 Articles of the Magna Carta, "to be kept in our Kingdom of England forever", exactly three are still in force.

 

Godden v Hales (1686) - concerned an army officer taking an oath of allegiance.


Ellen Street Estates v Minister of Health [1934] - concerned land purchase; a recent Act apparently invalidated by an earlier Act, but the later Act was upheld by the courts.

 

In Blackburn v Attorney General (1971) CA, the court rejected the argument that to join the European Community would be an illegal surrender of sovereignty, Lord Salmon said that Parliament "can enact, amend and repeal any legislation it pleases."

 

Union with Ireland Act 1800.  The Act of Union united Great Britain and Ireland into a single kingdom this was to be in force and have effect forever, but was nevertheless largely repealed in 1922 without any legal difficulty.

 

The role of the courts

Written constitutions

Most democracies these days set out a right of access to the courts in a written constitution.

 

These constitutions have a superior status to any statute passed by the legislature. The courts in those countries, are the arbiters of the constitution, therefore they have no difficulty in striking down laws which they determine to be invalid or "unconstitutional".

 

Unwritten constitutions

In contrast, three nations have no written constitution; UK, Israel and New Zealand.

 

The UK unwritten constitution has been interpreted as conferring paramount power upon parliament.

 

As Dicey wrote at the end of the 19th century, and as our courts have accepted, parliamentary sovereignty is our prime principle and the courts cannot stand in the way of an act of parliament, whether or not it offends the rule of law.

 

However, the effect of the Human Rights Act is to create a statutory right of access to an "independent and impartial tribunal", in other words the courts.  This is open to all not just UK citizens.

 

Why no written constitution?

Written constitutions exist in most countries where they are needed to control the country's governance.

 

They are needed when a country emerges from some kind of upheaval, for example a revolution; or on achieving  independence; or some political re-arrangement (such as the break-up of Yugoslavia or the Soviet Union); or in some cases following the overthrow of a dictator.  Britain has not encountered any of these.

 

Its constitution is made up of bits and pieces found here and there.  Many people argue that on the whole, it serves the country well.

 

Act of Parliament cannot be challenged or its validity questioned in relation to ordinary domestic law

Cheney v Conn [1968] concerning taxation used for nuclear weapons; it is not for the courts to decide if a statute has an unlawful purpose.


British Railways v Pickin [1974] a private Act in favour of a railway company cannot be brought into question because of alleged procedural errors.

 

Courts role in subordinate legislation

The courts will review subordinate legislation by way of Judicial Review, a process that is endorsed by Parliament which does not have time to scrutinise thousands of pieces of legislation each year.

 

Courts will now review Acts of Parliament

The courts will now look at legislation passed by Parliament in order to read it as compatible with the European Convention on Human Rights.

 

Foxhunting; the role of courts; Parliamentary supremacy

The Hunting Act 2004 was reviewed in the following cases:

R (Countryside Alliance and others) v Attorney General (2006) CA

 

Weekly Law Report here

Claimants argued that the Hunting Act 2004 infringed rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, and that the Act effectively restricted hunting related imports.

 

Held: In the Hunting Act 2004 Parliament intended to prevent or reduce suffering to animals because causing suffering to animals for sport was wrong.

 

The aim of the Act was legitimate, the ban was proportionate to that aim and a legitimate exercise of public policy, and the state was acting within its discretion in prohibiting hunting.
 

Jackson v Attorney General (2006) HL

Whole case here

A major challenge to the authority of Parliament.  Because the Hunting Act had been passed using a special procedure (Parliament Acts) the claimants sought to have the Hunting Act declared not to be enacted law at all.

 

The authority of Picken v British Rail was not doubted by Jackson, which only proceeded at the invitation of the Attorney General. Picken was an enquiry into the workings of Parliament where it was said that Parliament had been misled and so, had proceeded on a false basis, Jackson was not such an enquiry.

 

Jackson firstly asked if Acts that created the Hunting Act were “enacted law”. Secondly, a question of law had been raised which had to be resolved by either the courts or Parliament, and because Parliament could not do so it was up to the courts.

 

First conviction for hunting

Huntsman Tony Wright, 52, was found guilty on 4th August 2006 of illegally hunting foxes in the first prosecution in England brought under new hunting regulations; he was fined £500 and ordered to pay £250 costs at Barnstaple Magistrates’ Court Devon.

 

He was acquitted on appeal in November 2007 (The Times, here), the issue being the reverse burden of proof.  The matter is to be appealed to the High Court.

 

The influence of treaties, the EU and HRA

Limits on freedom to legislate

The UK’s membership of the European Union, and other international treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms may have put some limits on freedom to legislate.

 

The history of the Human Rights Act demonstrates that parliament is determined to retain its supremacy.

 

After examining how similar legislation works in other countries allowing judges to strike down offending legislation was not considered consistent with supremacy of parliament.

 

The Purposive Approach

What has been called "'a new way of thinking" includes the following concepts:

  • The Purposive Approach

  • Courts are required, if at all possible, to interpret existing legislation in a way that is compatible with the Convention Rights.

  • In other words, courts must look at the purpose behind the Convention. This new "purposive approach" means taking a broad and more flexible interpretation of the law, rather than a strict legal view.

  • If a piece of legislation is found to be incompatible, the courts make a ruling on the basis of the best interpretation, which could be reached compatibly with Convention rights.

  • When determining the meaning of legislation, courts may, where necessary, be able

to:

- "read in" extra words

- or even ignore words

if to do so will make the legislation compatible with the Convention.

 

"Declaration of incompatibility"

  • Sometimes, even though this wide interpretation is applied, courts may be unable to interpret the legislation compatibly with the Convention, therefore they must apply the existing Primary legislation.

  • When dealing with the matter on appeal the High Court (and above) are able to make a "Declaration of Incompatibility".

  • Once such a declaration is made Ministers are able to amend the legislation under a fastrack procedure, but neither the government nor Parliament can be forced to act by the courts, which in every case they have either done or agreed to do.

  • When legislation is being presented to Parliament, Ministers are required to confirm that the Bill is compatible with the Convention.

 

Sovereignty

  • The provisions of the Convention apply to all courts.

  • Any Act of Parliament declared by British courts incompatible with the Convention rights nonetheless remains in force unless and until Parliament decides otherwise.

  • So the sovereignty of Parliament is safeguarded.

A Living Instrument Approach

  • The Convention has been described as a "living instrument" because it is capable of being interpreted in the light of current conditions.

  • When considering the way in which the Convention has been interpreted in the past, courts take into account:

  • the lapse of time,

and

  • the change in public thinking since the previous decision was made before determining whether or not to interpret the Convention in the same way.

  • Whilst means courts are not necessarily bound by previous interpretations of the Convention, they must take notice of the lapse of time since the previous decision was made. The longer the intervening period, the more likely it is that the Convention is capable of a new interpretation, especially in areas such as morality and family life.

 

Appeals

  • Every piece of existing law must now be interpreted in the light of the Convention; previously, case law informed decision making.

  • All legislation is subject to the "new way of thinking" approach; existing case law will also have to be viewed in the context of the Convention.

Raising Convention Rights

  • Breaches of Convention Rights are mainly raised by the defence alleging that either the process, practice, offence or the sentence itself breaches a Human Right contained in one of the Articles in the Convention.

  • In its role as a Public Authority, the courts have a positive duty to draw attention to Human Rights Act breaches.

Bail Act Applications

  • Both the Bail Act 1976 and the Convention state that a defendant has the right to bail.

  • The Bail Act 1976 provides conditions which must be complied with before a person is either remanded in custody or released on conditional bail. In a similar way Article 5 ensures that everyone has the Right to liberty. This Right can only be withheld in accordance with a procedure prescribed by law such as the Bail Act 1976.

"Fairness"  = "Equality of arms"

  • The overriding aim of Article 6 is fairness.

  • This requirement is demonstrated by the need to provide free interpreters for those who cannot understand the language of the court.

  • By ensuring that facilities or opportunities available to one party are available to another, the Court of Human Rights has created the concept of an "equality of arms".

 

Legal Representation

Anyone charged with a criminal offence has certain minimum Rights, these include free legal assistance if the interests of justice so require where the defendant has insufficient means (Article 6(3)c).

 

Benham (Poole Magistrates' Court)

When reviewing the procedure adopted during committal proceedings for non-payment of poll tax (in the case of Benham v United Kingdom (1996) ECtHR)) the Court in Strasbourg decided that the defendant was entitled to legal aid.

 

These civil proceedings were regarded by that Court as being criminal in nature due to the severity of the penalty (custody) and complexity of the case. Therefore, legal aid should have been available.

 

Probably the most serious attack on parliamentary sovereignty was the Factortame case in 1991

The House of Lords departed from the traditional doctrine of supremacy by suspending the Merchant Shipping Act 1988, while awaiting a decision of the European Court.

Also, in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1992] HL (without making a reference to the ECJ under art 234 (177)), the House of Lords ruled that provisions in the Employment Protection (Consolidation) Act 1978 were indirectly discriminatory, and incompatible with the Equal Treatment Directive and art 119 respectively.

 

This case led quickly to amending legislation.  Furthermore, the House accepted that judicial review could be sought as a faster and less expensive alternative to a reference to the ECJ.

 

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