Parliamentary Sovreignty
DESIRABLE AS IT IS THE FULL ENTRENCHMENT OF THE HUMAN RIGHTS ACT 1998 IS IT REMAINS IMPOSSIBLE DUE TO PARLIAMENTARY SOVEREIGNTY….ANALYSE AND CRITICALLY ASSESS THE ABOVE STATEMENT
The Human Rights Act is One of the most significant changes to British law that has come into force throughout the United Kingdom. The act allows people to seek redress in the courts in their nation states, rather than having to go to the European Court of Human Rights in Strasbourg.
The act enshrines the European Convention on Human Rights into UK law and has been hailed as one of the most significant changes to the British legal landscape since the Magna Carta. The Act means people who believe their rights have been breached will no longer have to go directly to the European Court of Human Rights to seek redress, a situation that has existed since 1966. Therefore UK citizens will be able to take the state and its agencies to court to enforce basic human rights. Under the Human rights act section 3 (1) 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. And this (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if primary legislation prevents removal of the incompatibility
Despite Jack Straw being quoted as saying "I would not have supported this Bill if I had felt in any way it undermined Parliamentary sovereignty" and that the act was about "bringing British rights home to our British courts" and that it would protect the weak against the "overweening power of the state" 1. There are still many that doubt that this is a wholly accurate conjecture of the truth. He told BBC Radio 4's Today programme: "Even when the highest courts in the land deem a piece of legislation to be incompatible with Convention rights that law of the land continues in its entirety until Parliament changes it."
Human rights have previously been a part of the reserved domain of States that is a matter which was not, in principle, regulated by international law. The Permanent Court of International Justice recalled in this respect that "the jurisdiction of a State is exclusive within the limits fixed by international law -- using this expression in its wider sense, that is to say, embracing both customary law and general as well as particular treaty law" 2.. Therefore, State sovereignty must be interpreted in view of, and combined with, general principles of international law such as the general prohibition of abuses of rights, proportionality, and the respect of other States' sovereignty, due diligence. So sovereignty is not an unlimited power to do all that is not expressly forbidden by international law. It can only be defined as the very criterion of States, by virtue of which such an entity possesses the totality of international rights and duties recognized by international law as long as it has not limited them in particular terms by concluding a treaty.3.
It has been stated by the Lord Chancellor that "Although the Human Rights Bill does not disturb the sovereignty of Parliament, that sovereignty will, in future, have to be exercised within an environment highly sensitive to fundamental rights."4. The Lord Chancellor has explained that parliamentary sovereignty has evolved to reflect the increasingly participatory nature of government in Great Britain. Lord Irvine described the British Human Rights Act, as allowing the courts to interpret legislation in a way that is compatible with human rights. Whilst judges are not empowered to strike down laws that are incompatible with human rights, they can pass a notice of incompatibility that will encourage Parliament to amend such laws. Thus it could be argued that the Human rights Bill would cede new powers to Europe, and that it will politicise the judiciary and will diminish parliamentary sovereignty. However, in contention with this assertion, there was arguably no ceding of new powers to Europe as the United Kingdom already accepted that Strasbourg rulings bind it. The Bill itself is has been carefully drafted and designed to respect traditional understanding of the separation of powers. The design of the Bill is one to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament. In the very rare cases where the higher courts will find it impossible to read and give effect to any statute in a way which is compatible with convention rights, they will be able to make a declaration of incompatibility. Then it is for Parliament to decide whether there should be remedial legislation. Parliament may, not must, and generally will, legislate. Thus the Human Rights Bill can be said to maximise the protection of human rights without trespassing on parliamentary sovereignty.
The Human Rights Bill presents a possible new way forward as it provides the UK for the first time with a modern charter of fundamental human rights, enforceable in national courts, while, at the same time upholding the sovereignty of Parliament. The judge stands between the potentially oppressive power of the state and the freedom of the individual under the law.
At the same time as upholding the independence of the judiciary, there is also the duty to respect and defend the values of democracy. In a modern democracy, it is the representatives of the people, not the judiciary, who must ultimately determine the direction of public policy. Thus the Human Rights Act is that Parliament has provided an ethical code by which ministers, civil servants, judges and anyone else must steer their conduct. The Act gives an effective remedy in the British courts, and provides citizens within the United Kingdom positive rights against public authorities when they misuse their powers and infringe rights and freedoms. Arguably the common law position can renewed and refreshed by the Human Rights Act to cover much of what is in the European Convention.
However it could be argued in contrast that our common law, and the whole history of precedent established within it, is designed to reconcile rights and responsibilities, and thus the Act provides nothing further but an encroachment upon this. Indeed there is a plethora of precedent in our common law to reconcile individual rights and general interests of the community. However one problem with the unwritten common law is that it could be argued to lack a specific ethically aim. Indeed there is no not kind of code of ethics to steer judges or decision makers generally when they have had to make decisions that impact on the rights of the individual. In essence the law previously did not possess a statute which systematically sets out our citizens' rights. The UK is bound to uphold the rights set out in the European Convention on Human Rights but our own courts cannot enforce those rights directly, even in the face of a clear infringement of fundamental rights. They can only take account of them.
This been said it could still be argued that the Human Rights Act tries to override Parliament through the doctrine of supremacy. However the strict reality is that the Human Rights Act is weaker in that respect than the written constitutional guarantees of the rest of Europe and many Commonwealth countries. In such countries, if an Act of the legislature conflicts with a basic constitutional human right the courts can strike down the Act of parliament, akin to the action that can be undertaken in the UK in the context of European Community law.
However the HRA is weaker. If a statute cannot possibly be read as being compatible with the European Convention, all the courts can do is grant what is known as a 'declaration of incompatibility'. And this the government can introduce amending legislation and Parliament, if it wants to, can then pass that legislation. And if they don't then the alleged victim can still go to European Court.
The compromise is between parliamentary sovereignty on the one hand and effective remedy for the individual on the other. The Government has made it quite clear that in 99.9% of cases they expect that the courts will be able to re-read statutes to comply with basic human rights. It is only in an infinitesimal amount o faces that problems can occur. The only reason that the Government would not introduce legislation is if they disagree with the British courts and decide that they have a better chance at Strasbourg. That would seem on the face of it wholly unlikely as a decision House of Lords that apiece of legislation breaches the convention, ids likely to be upheld, in other words it's most unlikely that the European Court of Justice will come to any different conclusion.
When then will there be the use of Parliamentary sovereignty and how far does it curtail the effect of the Human Rights Act?
Under section 3(1) of the Human Rights Act 1998 Parliament laid down that so far as possible for United Kingdom legislation whenever enacted must be read and given effect in a way which is compatible with rights under the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council. Perhaps it is pertinent to ask - What is 'possible' supposed to mean here? Does it mean corresponding to the literal meaning, or does it allow for a more restrained meaning - and if so to what extent? In all is the traditional construction followed or that of European system that is used to analyse the law of the EC?
The United Kingdom, though whilst still looked on as an independent sovereign state, is less so than previously. Britain is part of the European Union, which brings in the system of Community law and the civil law. The Human Rights Act 1998 explicitly connects British law to the requirements of the Convention. We have much more powerful and extensive treaty links than in the past, which require us to take increased notice of other countries' systems of law and of international law generally.
In the other direction Parliament has recently conferred, under the process known as devolution, limited legislative powers on individual portions of the sovereign territory of the United Kingdom. So in many areas the UK now has multiplex systems. Formerly we had single-level law, where for a particular case there is one text such as an Act of Parliament or a series of same-type texts which need to be conflated. Now we have two or more levels. Typically, the provisions of the Act of Parliament itself have first to be tentatively construed, perhaps with difficulty, and then the result has to be tested against a higher text such as the Convention. Legal certainty, and ability to find out what the law is, inevitably suffer.
Within the United Kingdom, a Community law may have direct effect or be transposed into specifically British legislation. If it has direct effect it must be construed by a British court in the same way it would be construed by the European Court of Justice Communities (ECJ). If it is transposed the position is more complex.
A Community law is said to be transposed into the national law of a member state when that state alters its national law to give effect to the Community law. The first of these three methods, copyout, is where legislation is enacted by which the exact terms of the directive are simply transposed as they stand into the national law. The copyout technique has disadvantages and some dangers.5. Its defects were shown for example as respects the Unfair Contract Terms Act 1977, where there was no harmonising amendment of the 1977 Act and the problems of fit have been left to the courts to sort out.
Where copyout is not used, the Community law in question will not be treated as properly or correctly transposed unless the substantial effect of the national law, in whatever form, is seen to be the same as that of the Community law in question. Either way the result is that in construing Community law operating in the United Kingdom the method of interpretation to be used by our courts is that practised by the ECJ and not our own system based in the common law. 6.
The ECJ, in contrast to English courts, applies teleological rather than historical methods to the interpretation of the Treaties and other Community legislation. It seeks to give effect to what it sees to be the spirit rather than the letter of the Treaties; sometimes, indeed, to an English judge, it may seem to the exclusion of the latter. It views the Communities as living and expanding organisms and the interpretation of the provisions of the Treaties as changing to match their growth.7 The ECJ adopts a purposive or teleological interpretation of statutes rather than a mainly literal interpretation or straightforward construction of the words, which is eschewed in favour of a creative stance.
The British doctrine of purposive construction, comprised within the method of common law and stature, is more literalist than the European variety, and permits strained construction only in comparatively rare cases. This has bee referred to as the global method of construction, because it is followed in the legal systems of many countries worldwide. However due to the doctrine of supremacy it is increasingly obliged to give way to the European system. The adoption of a construction which departs boldly from the ordinary meaning of the language of the statute is particularly appropriate where the validity of legislation has to be tested against the provisions of European law. In that context it is proper to give effect to the design and purpose behind the legislation, and to give weight to the spirit rather than the letter.8
The ECJ method may be called Developmental construction because in advancing the spirit it is always ready to depart from the text, if the court deems this necessary.9 Similarly the term dynamic interpretation has been used in relation to the Convention. It uses the text merely as a starting point, with the aim of developing the particular piece of Community law in the way the nations of the E.U. are presumed to intend within the context of the grand design. This harks back to the civilian system of drafting legislation, as compared to the common law drafting method. The Developmental method pays far less regard to precedent than the Global method does.
Therefore in relation to different items of legislation operating within the United Kingdom, two distinct methods of statutory interpretation exist. These are the Global method and the Developmental method. These have many features in common, and are different mainly in the extent to which they allow or require a strained construction and the respect they pay to precedent. Under s. 3(1) of the Human Rights Act 1998 are we about to be confronted by a third method?
The answer would seem to be no. Section 3(1) of the 1998 Act should be taken as requiring the enactment in question to be construed according to the Developmental method, thus bringing in the wider European system of purposive construction. Therefore it does not provide a third method; but arguably it drastically alters existing methods. The fact that this powerful new criterion has been added to the existing guides to statutory interpretation reopens all precedents. Indeed no pre-1998 Act court decision on the legal meaning of an enactment to which a Convention right is relevant can now stand unexamined. Even though it truly reflected the intention Parliament had when passing the enactment, the decision needs to be looked at again in the light of s. 3(1). Parliament's original intention is no longer the only deciding factor. Whilst admittedly, it retains its importance, it must now be reassessed in the light of the new rule.
- http://news.bbc.co.uk/1/hi/uk/951753.stm[^ Return]
- PCIJ, Advisory Opinion, Nationality Decrees Issued in Tunis and Morocco, Series B, Nº 4, p. 24;[^ Return]
- ICJ, Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949, p. 180; italics added.[^ Return]
- LORD CHANCELLOR'S DEPARTMENT173/98 16 June 1998
HUMAN RIGHTS THE KEY TO BALANCING A FREE JUDICIARY WITH A HEALTHY
DEMOCRACY[^ Return]
- For a discussion of these see Lynn E Ramsey, 'The Copy Out technique: More of a Cop Out than a Solution?' [1996] Stat. L.R. 218.}[^ Return]
- James O'Reilly, 'Coping with Community Legislation - A Practitioner's Reaction' [1996] Stat. L.R. 15;[^ Return]
- Henn and Darby v. D.P.P. [1981] A.C. 850 at 905.}[^ Return]
- Cutter v. Eagle Star Insurance Co Ltd [1998] 4 All E.R. 417 at 426.}[^ Return]
- see D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (Butterworths, 1995)[^ Return]
BIBLIOGRAPHY
Donnelly, J Universal Human Rights in Theory and Practice Cornell University Press;
Harris, D et al, Law of the European Convention on Human Rights (Butterworths, 1995)
O'Reilly, J 'Coping with Community Legislation - A Practitioner's Reaction' [1996] Stat. L.R. 15.
Ramsey, L 'The Copy Out technique: More of a Cop Out than a Solution?' [1996] Stat. L.R. 218.
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