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Published: Fri, 02 Feb 2018
Focus on a variety of issues
In order to approach this question it is necessary to focus on a variety of issues. In order to determine if parliamentary has been overturned or refined by the Human Rights Act (HRA) 1998 it is necessary to examine the status of parliamentary sovereignty in the United Kingdom (UK) prior to the Act and how has that changed after the enforcement of the HRA. In addition, the analysis of the British courts and the European Convention of Human Rights (ECHR) and the European Union (EU) are also necessary to determine if parliamentary sovereignty has been refined or overturned by the HRA.
The absence of any written constitutional framework affects our constitutional law; this is particularly true of the position and powers of Parliament. Parliament’s most significant power is that stated to be the sovereign law-making body, i.e. Parliament. Dicey popularised the view of parliamentary sovereignty, describing it as “the fundamental law of the British constitution”. Sovereignty is the power to make law, with the absence of any other legal constraint upon the power in the UK Parliament. An Act of Parliament is not subject or constrained by a higher law, such as a written constitution; one clear example of this was the extension of Parliaments life during the two World Wars. A further and perhaps more crucial implication drawn from the sovereignty of Parliament is that the Acts of its predecessors does not bind a sovereign Parliament, and thus no Parliament can bind its successors. However, in practice, there are political and practical restraints that are placed upon Parliament.
The Act came into force in October 2000, and provided that an individual or organisation could now take proceedings against a public body, on the basis that the public body has acted contrary to the rights set out in Article 2-12 and 14 of the ECHR. Crucially, the Act did not confer new rights to citizens; rather it incorporates into English law, rights that are already afforded to UK citizens under the European Convention (EC), with the exception of Article 13. Convention rights could now be enforced into domestic courts and judges are required to interpret legislation in order that it complies with the ECHR.
The Act is generally viewed by society as entrenched and imposing significant safeguards for individuals by restraining Parliaments law-making powers. However, this is not the case, due to the Act being an ordinary Act of Parliament and therefore includes the possibility of amendment or new legislation changing its significance or stance. In light of this, parliamentary sovereignty has not been affected as Parliament still has the power to change the Act or enact new legislation to overrule it. However possible, this is unlikely to actually happen, due to political and social pressures (not legal) on Parliament. It is essential to Parliament to maintain the majority party in Parliament and the support of the electorate, and radical changes away from the protection of human rights are likely to jeopardise this support.
Some have suggested that the reassurances that the sovereignty of Parliament is not affected by the HRA are misleading. Lord Steyn declared that “it is crystal clear that the carefully and subtly drafted HRA preserves the principle of parliamentary sovereignty.” Although, in preserving the principle, the Act has made substantial changes to the way in which legislation has effect in respect of human rights. At the moment, courts appear in some circumstances to treat Human Rights law as a supreme law and perhaps changing the will of Parliament by doing so. The HRA brought with it a substantial amount of training for judges on how to incorporate the Act into statutes. A strong interpretative duty is to be applied to all legislation, whether primary or subordinate, whereby, the legislation must be read and given effect in a way which is compatible with convention rights. Due to this emphasis on interpretation, judges may feel obliged to incorporate Human Rights law to an extent where the statute is in some way changed, and hence, changing Parliament’s intention when the statute was written. Furthermore, this has resulted in repeated failures to give sufficient legal protection to individual rights. The HRA appears to have also found a way of ensuring that in relation to convention rights, there will be little space in which the doctrine of implied repeal can be applied (i.e. whereby the later Act of Parliament is followed on the basis that that it is the more recent statement of Parliament’s intentions).
With regards to the enactment of legislation, Section 19 of the HRA provides that a minister in charge of a Bill being introduced into Parliament will be required to make a statement of compatibility prior to the Bill’s second reading, indicating how the Bill complies with Convention rights. Thus in effect, this puts restraints on the sovereignty of Parliament, as it requires them to incorporate the Convention rights at the early stage of enacting legislation. However it would be misleading to say that it prevents Parliament from actually enacting legislation, as a statement of non-compliance can be issued which indicates the conflicts between the Bill’s proposals, the ECHR and the reason for no compliance. Nevertheless, an Act of Parliament that carries a declaration of incompatibility (or non-compliance) is likely to be badly wounded and some confusion may arise as a result. Therefore, Section 19 and Section 3 of the HRA are seen by some as a ‘radical tool’, which to a certain extent undermine the sovereignty of Parliament. A further consequence of legislation holding non-compliance with convention rights on parliamentary sovereignty is the possible following of remedial action, whereby pressure is enforced on the government which is expected to introduce new legislation, or amend the existing in order to make it compatible.
Parliamentary sovereignty is the ‘basic principle’ of the United Kingdom’s unwritten constitution. One of the sources used in describing this concept is Dicey’s legal theory, which splits Parliamentary sovereignty into two limbs. The positive limb articulates that “Parliament has the right to make or unmake any law whatever”, while the negative limb expresses 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.” Thus, the doctrine of Parliamentary sovereignty can be summarised as follows: Parliament may pass legislation concerning anything; it neither binds its successors nor be bound by its predecessors; and only Parliament can change or reverse an Act of Parliament. Wade extended this by stating that the only limit to Parliament’s legal power is that it cannot detract from its own continuing sovereignty.
The ECHR was signed in Rome in 1950 and ratified by the UK in 1951, although it did not come into force among those who had ratified to it until 1953. The convention declared certain rights that should be provided and protected by the law in each state. For the Convention to become part of domestic law in the UK it had to be incorporated into English law by way of the HRA. However, before the Convention was incorporated, convention rights had been included in proceedings before English courts. Courts had referred to the unincorporated Convention and its case law as sources of principles or standards of public policy, usually in situations whereby common law or statutory law was ambiguous, undeveloped or uncertain. For example, in the case of Waddington v Milar, Lord Reid referred to Article 7 of the Convention. However, prior to the HRA, courts in the UK, could only pay limited attention to the convention and thus it could not be applied directly by the courts to the cases held before them. In Malone v MPC , Malone sought declarations that tapping of his telephone by the police was unlawful and in breach of his Article 8 rights. Megarry V-C held that the tapping was not unlawful and that the convention was not law in the UK.
The major move towards constitutional change in Britain comes, significantly from Europe. The European Communities Act (ECA) 1972 gave legal effect within the UK to those provisions of community law, which were, according to the European Treaties, intended to have direct effect within member states. Parliamentary sovereignty is one of the main constitutional issues raised by Britain’s membership of the EU. It has been affected both formally and legally and is no longer one of the cornerstones of the British Constitution. Parliamentary sovereignty prevents judicial review of domestic law. Since the late 20th Century, this concept has undergone erosion from devolution in Scotland, the increasing use of referendums, the UK’s accession to the EU and the incorporation of the ECHR into domestic law. According to Wade, the concept of Parliamentary sovereignty has been completely eroded by the ECA. But the HRA can be said to have posed only a limited challenge, if any, to Parliamentary supremacy.
The fact that EU law takes precedence over national law means that while the UK is a member of the Union, Parliament is no longer the supreme law-maker. However, parliament has not lost its legal sovereignty altogether, as some contend that this loss of sovereignty is neither final nor absolute and Parliament could revoke membership of the EU tomorrow, thus regaining its sovereignty and status.
Section 2(1) of the ECA states “all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the treaties…are without further enactment to be given legal effect or used in the UK shall be recognised and available in law and be enforced, allowed and followed accordingly”. This provides that Community law had direct effect and it shall be enforceable in the UK courts. This immediately raises the problem of potential conflict between EC law and a UK Act of Parliament. By the doctrine of implied repeal, all Acts before 1972 would be overridden by the ECA and the EC would have supremacy. There is however, nothing in the ECA which represents an attempt to entrench its provisions, or that it is a ‘higher form of law’, or that it cannot be repealed, perhaps because of the fears of the reactions it would receive.
The Act provides guidance for Judges in the UK when approaching conflicts between European Community law and parliamentary legislation. Several sections of the Act imply that EC law is to prevail over any subsequently enacted UK law. Section 2(4) of the Act provides that subsequent legislation is to be construed and to have effect subject to the foregoing provisions of Section 2. Section 3 of the Act requires courts, when dealing with cases regarding Community law, to either refer to the European Court of Justice (ECJ) or deal with the case themselves in the light of previous decisions made by the European Court. In the case of conflict, the ECJ in Luxembourg has the final word and provides precedence. The present position would appear to be therefore that the courts remain loyal to Parliament at Westminster by giving effect to EC law when interpreting domestic law, because it is what Parliament has instructed the courts to do by virtue of the ECA.
For the first decade after passing the ECA, the courts vacillitated between mutually conflicting positions, for example in Felixstowe Dock and Railway Co v British Transport Docks Board. In this case Lord Denning claimed that once a Bill “is passed by Parliament and becomes a statute that will dispose of all discussion about the treaty. These courts will then have to abide by the statute without regard to the treaty at all”.
However Lord Denning did change his mind in the following years, viewing EU law to hold precedence over UK law. The extent to which Community law overrides inconsistent national law was seen in R v Secretary of State for Transport, ex parte Factortame Ltd and Others. The case involved a conflict between Community law and the Merchant Shipping Act 1988 passed by Westminster Parliament. The central issue of the case was whether English Courts could grant interim relief to fishing-boat owners against the British Government while the case was being referred to the ECJ. In effect the applicants were asking if the Merchant Shipping Act 1988 could be disapplied by the English Courts, which the divisional court granted. On appeal, both the House of Lords and Court of Appeal held that the divisional court had no power under the English law to make such an interim order. The European Court alleged that the UK had failed to observe the European Community treaty obligations by imposing the nationality requirement for registration. It held that the UK must suspend the nationality requirements contained in the Merchant Shipping Act 1988, and the UK duly complied with this decision.
The ECHR was introduced into UK law in the year 2000 via the HRA. As discussed earlier, the HRA incorporated into English law, the rights already afforded to UK citizens under the Convention, with the exception of Article 13. The Act provides that public authorities exercising executive powers must comply with the requirements of the Convention.
The doctrine of parliamentary sovereignty seems to be a massive obstacle preventing any significant increase in the level of formal protection given to human rights in our constitutional law. For example, the doctrine that Parliament may not bind its successors is a major obstacle to enactment of a Bill Of Rights intended to protect human rights against legislation by later Parliaments. The implementation of the HRA is an important step on the way towards meeting the need for greater protection for human rights, according to Lord Chancellor???it would have “a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights.”
Contrary to this, Dicey’s concept of the Rule of Law suggested that Parliament would not use its legislative powers to abrogate the liberties and freedoms of individuals. Furthermore it could be said that Parliament’s introduction of the HRA is an example of parliamentary sovereignty in itself. A key aim of the HRA was that of ‘bringing rights home.’ The legislation was introduced to bring to an end the situation whereby a complainant had to go to Strasbourg to assert their convention rights, as a claimant’s case could now be heard in British courts, hence the title of the governments proposals for the Act in the white paper: “Rights brought home”. The Act also intended to help ‘create a society in which rights and responsibilities of individuals are properly balanced and in which an awareness of convention rights permeates our governmental and legal system at all levels.’
Lord Irvine asserted that Parliament has two principal interests in the HRA – to defend its legislation, and to maintain parliamentary sovereignty by defending its right to legislate. It succeeded by neither entrenching Convention rights nor granting political freedom to Parliament to compromise them by later statutory amendment. Instead, it was designed to be compatible with and strengthen Parliamentary sovereignty. In contrast to Lord Steyn’s statement that “it is crystal clear that the carefully and subtly drafted HRA preserves the principle of Parliamentary sovereignty,” Bradley argued that the Act has “enabled there to be judicial review of legislation in all but name” by equipping courts with a dual function to apply the rule of interpretation and, failing that, to make a declaration of incompatibility.
A vital feature of the Act is the ‘interpretative obligation’ in Section 3. The most frequent use of the Act is likely to be an interpretative one as the Act requires courts to interpret statutory provisions and common law in a way that is compatible with the Convention. Section 3 (1) of the Act states that “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 the Convention rights.”
This has an effect on all cases, “civil or criminal, private or public, against private legal persons or public authorities” where a convention right is at stake. Before the Act was introduced, courts were permitted to use the Convention as an interpretative tool where the supposed Act of Parliament was ambiguous. Now, courts under a statutory duty must interpret legislation accordingly with Convention rights, so far as this is possible. In Re S; Re W , Lord Nicholls states that in applying Section 3, the courts must be ever mindful of the outer limit of the scope of section 3(1). ‘The Human Rights Act reserves the amendment of primary legislation to Parliament.’ By this he means that the Act seeks to preserve parliamentary sovereignty. The constitutional boundary of the Act is maintained. It is the matter for the courts to decide the interpretation of statutes, whereas the enactment and amendement of statutes are a matter for Parliament. Bonner states that the HRA ‘combines positive legal protection and enforcement of human rights with the preservation of parliamentary sovereignty. While, as is shown in Part II, their interpretive duties have been strengthened, the courts remain unable to invalidate a statute by reference to human rights’.
The cases of R v A  and Ghaidan v Godin-Mendoza  demonstrate the extent to which the courts feel free to use Section 3. The case of R v A concerned the legality of a ‘rape shield’ law passed in order to protect alleged victims of rape from having to reveal details of their sexual history in open court. The defendant alleged that the complainant had consented to sexual intercourse during a previous relationship. The ‘rape shield’ under Section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 therefore restricted his defence. The House of Lords was required to consider the extent to which this section of the Act was compatible with the right to a fair trial under Article 6 of the ECHR. Lord Steyn concluded that these provisions did interfere with the right to a fair trial, but opted for a creative interpretation that ensured compatibility with Article 6, so as to allow cross-examination of the complainant about recent intercourse or intimacy between her and the defendant.
In Ghaidan v Godin-Mendoza, Lord Roger stated that “however powerful the obligation in Section 3(1) it does not allow the courts to change a substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying x is not going to happen.” Lord Nicholls in the same case also went on to say that “the meaning imported by application of Section 3 must be compatible with the underlying thrust of the legislation being construed.”
One question that arises is whether the HRA has modified the doctrine of implied repeal. There are situations whereby it is impossible to interpret legislation compatibly with Convention rights. This does not however, give courts in the UK the power to strike down or set aside acts of Parliament. The crucial words in the interpretative obligation under Section 3(1) of the Act are ‘possible’ and ‘must’, suggesting that there is an alternative. The courts are required to interpret legislation so as to uphold the convention rights unless; the legislation itself is so clearly incompatible with the Convention that it is impossible to do so. Where a higher court such as the House of Lords, Privy Council, Court of Appeal or High Court is satisfied that a provision is incompatible with the ECHR, it may under Section 4(1) grant a ‘declaration of incompatibility’ to that effect. Although this declaration of incompatibility may trigger the taking of remedial action by the relevant minister, it will not affect the validity, continuing enforcement of the provision in respect of which it is given, nor is it “binding on the parties to the proceedings in which it is made” (Section 4(6)). To date, the courts have exercised the power to issue declarations of incompatibility sparingly.
One example is found in Secretary of State for the Environment, Transport and the Regions, ex parte Alconbury Developments Ltd and Others . In this case, a declaration of incompatibility was granted in respect of the primary planning legislation that allowed a minister to determine the outcome of planning appeals in which he had a policy interest, but this was set aside on appeal to the House of Lords. A declaration of incompatibility is a rare occurrence as Section 19 of the HRA intended to prevent these instances by enforcing Human Rights law into the enactment of legislation. However, it is important to note that non-compliance can be declared even at this early stage.
Even if an earlier statute infringes a Convention right and cannot be interpreted compatibly, it remains in force but subject to a declaration of incompatibility (Sections 3(2)b and 4(6)). This is contrary to the doctrine of implied repeal, and as a result, to the doctrine of Parliamentary sovereignty. Bradley, in support, asserted that the HRA appears to have found a way of ensuring that in relation to Convention rights, there will be “little space in which the doctrine can be applied”.
It is Section 4 that created the novel remedy of a ‘declaration of incompatibility’ and is applied where a court cannot interpret a statutory provision in a way that is compatible with a Convention right. In R v A (No.2), Lord Steyn stated: ‘a declaration of incompatibility is a measure of last resort…It must be avoided unless it is plainly impossible to do so.’ This section cannot be said to encroach on Parliamentary sovereignty, because the declaration does not invalidate the provision concerned (Section 4(6)) and Parliament is not required to take remedial action; although it can do so under Section 10 of Schedule 2 of the HRA. This means that Parliament’s competence to enact any law is unimpaired, although a powerful restraint has been imposed upon its freedom to interfere with fundamental rights. On the other hand, the capacity to issue a declaration of incompatibility subtly alters the allocation of powers – Parliament has invited the judges to tell it that it has acted wrongly by legislating incompatibly with a Convention right.
Section 6(1) requires public authorities to act in conformity with Convention rights, which may be feared as empowering courts to constrain public bodies. But Section 6(2) provides that a public authority in breach of a Convention right does not act unlawfully if it adopted the course taken because of legislation. It effectively provides public authorities with a justification for breaching Convention rights, but would be contingent on the way in which courts interpreted Section 3. Notably, Parliament may legislate incompatibly because Section 6(3) excludes Parliament from the definition of “public authority”.
Section 19 requires a minister responsible for a Bill to issue a statement that it is compatible with Convention rights, thus ensuring that Parliament retains the primary responsibility for securing respect for Convention rights. However, Section 19 statements do not bind courts to conclude that the legislation concerned is compatible, nor do they have persuasive authority as stated by Lord Hope of Craighead in (R v A (No. 2) . This section asserts Parliamentary sovereignty because Parliament may expressly choose to legislate incompatibly, and it does so with informed consent.
Greer applauded the HRA as a much overdue constitutional innovation and Lord Irvine viewed the Act as a reinvigoration of the rule of law because it gave greater responsibility to the judiciary, thereby upholding the rule of law. On the other hand, Greer asserted that the Act erodes Parliamentary sovereignty because declarations of incompatibility which Parliament fails to correct will ultimately be open to challenge before the Court of Human Rights. Lord Lester and Clapinska view the HRA as giving a weaker legal status to Convention law that is given to Community law under Section 2 of the ECA but recognised that it endowed the judiciary with strong interpretative powers.
The Act has achieved its desired balance by retaining Parliament’s legal right to enact legislation which is incompatible with Convention rights. But Section 4 dramatically reduces its political capacity to do so because the declaration serves as a political, perhaps moral disincentive to legislate incompatibly. The government in its White Paper had taken the view that, owing to the sovereignty of Parliament, the general position was that it was impossible to bind future Parliaments, so future legislation may repeal the HRA.
The HRA has an obvious potential parallel with the ECA in Section 3(1). ‘As far as possible’ can be interpreted by having regard to the presumption that Parliament intends to abide by its international obligations, so where there is ambiguity, an interpretation which avoids conflict is to be followed. However, Marshall read it as a more specific instruction to courts to adopt a compatible interpretation even in the absence of ambiguity. This returns us to problems which also arise in respect of Section 2(4) of the ECA – Armstrong posed the question: at what point do normal rules of construction give way to interpretative exercises that disguise significant judicial activism?
In conclusion, Parliamentary sovereignty has survived neither the UK’s membership of the European Community nor the effects of the HRA. Both Acts have eroded Parliamentary sovereignty, but to different extents. From an orthodox view of Parliamentary sovereignty, Wade is correct in saying that “While Britain remains in the Community, we are in a regime in which Parliament has bound its successors successfully, and which is nothing if not revolutionary”. The ECA means that Community law is supreme, although this is at the grace of Parliament. Parliament may repeal the ECA and exit the EU at any time but this is highly unlikely, due to economic and political pressures. Perhaps the draftsmanship of this Act served as a lesson to the legislators of the HRA, for it seems that the HRA is more impervious to the supremacy of EC law. But of course, the discussion of some of its provisions has shown that it has not left Parliamentary sovereignty completely unaffected. The HRA may also be repealed but the Act may come to acquire a ‘moral entrenchment’ so that repeal becomes unthinkable.
In order to find that Parliamentary sovereignty has not been changed so dramatically, it is necessary to reassess the doctrine of Parliamentary sovereignty and redefine both its powers and limitations of powers, or adopt a different view in assessing the effect of the UK’s accession to the EEC and the incorporation of the ECHR. This examination of the impact of Parliamentary sovereignty has based the doctrine on the orthodox Diceyan approach. Perhaps adopting a common law approach to Parliamentary sovereignty would offer an alternate analysis of the ECA as an ‘evolution,’ instead of Wade’s ‘revolution’.
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