Parliamentary Sovereignty and HRA Act 1998

Evaluate whether Parliament is sovereign, giving consideration to judicial power and the effect of the European Convention on Human Rights (ECHR) on the law of England and Wales.

The Doctrine of Parliamentary Sovereignty is ingrained in the British Constitution; however, this is no longer absolute as the concept is evolving.[1] Historically, parliamentary sovereignty was held above all else[2] with the exception of the Doctrine of Implied Repeal as exemplified in Vauxhall Estates v Liverpool Corporation[3] where a future legislative assembly could not be bound by a sitting one through statute. Consequently, it is a logical assumption is that the judiciary cannot challenge the sovereignty of parliament as it has unlimited legislative powers superseding the courts.[4] In exercise of their judicial powers, courts have elicited great discourse on the impact of the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR) on the parliament’s supremacy. It is, therefore, important to evaluate the evolution of this doctrine considering the concepts of judicial power and judicial review as per the provisions of the HRA 1998 and the ECHR.

In theory, judicial power is defined as the authority exercised by an arm of government to hear, determine and make judgements.[5] Judges exercise their legislative power when they interpret statutes without any reference to members of parliament.[6] In the UK, sections 2 and 3(1) of the HRA 1998 give the judiciary interpretive powers on Conventional Rights and primary legislation in relation to these rights. All UK law is subject to interpretation in a manner that is compatible with the 1998 Act.[7] This leaves the power to enforce human rights with the judiciary; an increase in the courts’ powers at the expense of parliament.[8]

There is a variance of opinion on the effect of the expansion of the courts’ judicial powers on parliamentary sovereignty. In R (Jackson) v Attorney General,[9] Lady Hale stated that by enacting the 1998 Act parliament had limited its own powers. This is because the provisions of the HRA 1998 provide judges with the obligation to surpass conventional domestic law while performing their interpretive duty.[10] It is important to note that the effectiveness of courts depends on the willingness of other arms of government to abide by their decisions.[11] In as much as courts are encouraged to be more radical in their interpretation, they can only do so within the current limits of law.[12] In re (S) (Care Order: Implementation of Care Plan),[13] the court held that the HRA 1998 aims to protect sovereignty and as such the previous court’s ruling had unjustifiably exceeded its interpretive mandate and was instead altering law under the guise of interpretation.[14]

Parliamentary Sovereignty and the ECHR

Courts have the power, under judicial review, to assess the action of other government branches so as to determine their legality and constitutionality.[15]A victim of a decision, action or omission of a public authority can apply to the High Court to provide a remedy where the authority is found to have acted unlawfully.[16] This power is provided under section 6 of the HRA 1998 that forbids any public authority from executing its mandate in contradiction to the rights. A body is subject to judicial review in respect to its ‘public functions’ regardless of whether it is statutory or not.[17] In R v Panel on Takeovers and Mergers[18] a non-statutory organisation was held as susceptible to judicial review as it was exercising public functions. Traditionally, the standard for judicial review under the HRA 1998 was the irrationality test set out in the Wednesbury[19] case by Lord Greene where the rationale of decisions was tested against the reasoning and moral standing of any logical man.[20] The HRA 1998 has given courts new powers of judicial review that enable them to challenge the decisions and actions of the government in human rights terms.[21] Parliament decisions can now be challenged thus creating a limit on parliamentary sovereignty.[22] In order to preserve this sovereignty, the declaration of incompatibility was created under section 4 of the 1998 Act to ensure that where an incompatibility arises parliament still gets the final say on how to address it.[23] As illustrated in the R (Anderson) [24] where the Home Secretary’s powers remained lawful and in force, despite being rendered incompatible to the HRA 1998, until a new statute was enacted; declaration of incompatibility does not invalidate statute.

When the court at Strasbourg rules in a case, articles 1 and 46(1) of the ECHR expect that the state in question takes the necessary legal initiative to ensure that any issues raised are addressed accordingly.[25] This constitutes the extent to which judges can make law under the Convention. The Convention has been interpreted as a ‘living instrument’ a claim which Lord Judge stated meant that courts could legislate on issues which previously were under parliament’s jurisdiction.[26] He believed that members of parliament should have ultimate supremacy over unelected judges of any jurisdiction unless they chose to surrender such supremacy.[27] With regard to their interpretive duty, Lord Bingham in Ullah v Special Adjudicator[28] summarised the mandate of domestic courts as merely to keep up with the evolution of jurisprudence at the international court.[29] This mirror principle has however been contested by Lord Irvine who believes that UK judges should not be restricted to the bare minimum requirement in adjudging cases as stipulated in Ullah[30] but should critically analyse the cases themselves.[31]

Conclusion

Internationally, parliamentary supremacy is challenged by the court’s power of judicial review. The standard for judicial review compatible with the ECHR is that of proportionality.[32] Unlike the irrationality test, the onus probandi lies with the legislator rather than the victim.[33] In R (Daly) v Secretary for the Home Department[34] the House of Lords endorsed proportionality as the authoritative measure of review in human rights cases as it provided a stricter and more definite assessment.[35] According to Dr Pinto-Duschinsky, the expansion jurisdiction of the European Court of Human Rights (ECtHR) has created a democratic inadequacy that can be corrected by introducing an override, as is present in the HRA 1998, where the back still lies with parliament.[36] Conventions rights are protected under natural law which is supported by the government.[37] However, this does not empower parliament to nullify human rights.[38] The power of judicial review is vested in the Strasbourg court to ensure justice prevails as ‘even democratically elected governments could be guilty of the gravest crimes’.[39] Abnegation by parliament to adhere to the Court’s decisions on any matters to which it is a party would only serve to challenge the UK’s international standing.[40]

Conclusion

The HRA 1998 upholds parliamentary sovereignty as it denies UK courts powers to veto statute.[41] The Act contains a number of provisions to protect parliamentary sovereignty[42] the most significant being that parliament still has a say on whether to repeal or amend the law which the judiciary advises as incompatible.[43] However, the orthodox standing on Parliamentary Sovereignty has evolved due to the expansion of powers in the judicial arm of government. These expansions serve to check and balance the parliamentary supremacy with respect to the Doctrine of Separation of Powers. Parliament is, therefore, sovereign but only to the extent in which its decisions are compatible with Conventional and Human Rights.

References

BBC, ‘European Court of Human Rights “Risk to UK Sovereignty”’ BBC News (United Kingdom, 28 December 2013) www.bbc.com/news/uk-politics-25535327 accessed 29 August 2016

Bellamy B, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9 (1) ICON https://icon.oxfordjournals.org/content/9/1/86.full accessed 29 August 2016

Draft Voting Eligibility (Prisoners) HL Bill (2013-14) 13 www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10307.htm accessed 29 August 2016

Elliot M, ‘The Three Dimensions of the Relationship between UK Law and the ECHR’ (Public Law for Everyone, 5 December 2013) https://publiclawforeveryone.com/2013/12/05/the-three-dimensions-of-the-relationship-between-uk-law-and-the-echr/ accessed 29 August 2016

Fenwick H, Phillipson G and Masterman R (eds), Judicial Reasoning under the UK Human Rights Act (CUP 2007)  https://books.google.co.ke/books?id=7bQakM9B7TYC&printsec=frontcover#v=onepage&q&f=false accessed 29 August 2016

Gardner C, ‘Lord Irvine: British Judges Should Decide Human Rights Cases for Themselves’ (Head of Legal, 14 December 2011) www.headoflegal.com/2011/12/14/lord-irvine-british-judges-should-decide-human-rights-cases-for-themselves/ accessed 29 August 2016

Gordon R and Ward T, Judicial Review and the Human Rights Act (Routledge 2013)

Horne A and Miller V, ‘Parliamentary Sovereignty and the European Convention on Human Rights’ ( House of Commons Library, 6 November 2014) https://commonslibraryblog.com/2014/11/06/parliamentary-sovereignty-and-the-european-convention-on-human-rights/ accessed 29 August 2016

Howard E, ‘Is Parliamentary Sovereignty Now at Threat from the Judiciary?’ (2014) 1(1) The Undergraduate https://www.theundergraduateexeter.com/2014/03/human-rights-act-1998-parliamentary-sovereignty-judiciary/  accessed 29 August 2016

Kavanagh A, ‘Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach’ (2004) Public Law 540

Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the UK (CUP 2010)

Thomas Raine, ‘Judicial Review Under the Human Rights Act: A Culture of Justification’ (2013) 1 NELR 90 https://research.ncl.ac.uk/media/sites/researchwebsites/northeastlawreview/Thomas%20Raine.pdf accessed 29 August 2016

Andy Williams, UK Government & Politics (Heinemann 1998) https://books.google.co.ke/books?id=6keDJpK0xL8C&printsec=frontcover#v=onepage&q&f=false accessed 29 August 2016

— ‘How the Human Rights Act works’ (Liberty) www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/how-human-rights-act-works accessed 29 August 2016