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Parliamentary Sovereignty and its qualifications By: Rawin Leelapatana (อาจารย์รวินท์ ลีละพัฒนะ) Introduction

Parliamentary sovereignty is a rudimentary dogma of British constitutional law. Generally, Westminster can ordain any kind of laws it desires; the English court has upheld the supremacy and avoided to query the validity of an Act of Parliament. Notwithstanding, in Jackson v Attorney-General [2005] UKHL 56, the status of the doctrine was doubted as Lord Hope mentioned that ‘the absolute legislative sovereignty of the Parliament is being qualified’ (para. 104). He also emphasised that ‘the ultimate controlling factor’ of the UK constitution (instead of legislative supremacy) is ‘the rule of law enforced by the courts’ (para. 107). Thus, in this essay, the main body will focus on the relationship between Parliament and the court. The essay opposes Lord Hope’s notion that legislative supremacy is no longer absolute as evidence illustrates, in that Westminster still retains its supremacy as a matter of ‘form’. Conversely, the viewpoint that ‘the substances of an Act of Parliament’ are constrained by some qualifications is therefore supported. It will firstly elucidate the definition of ‘orthodox’ Parliamentary sovereignty while describing the roles of orthodox court in order to demonstrate that judges did uphold the doctrine. Secondly, purpose of the Human Rights Act 1998 (HRA) and the European Communities Act 1972 (ECA) will be demonstrated. Albeit both statutes empower judges to scrutinise an Act of Parliament, legislative supremacy is hitherto formatively maintained. Nonetheless, the court indirectly imposes obligation for Westminster to practically cling to political reality when enacting laws impinging upon the Community law or human rights law. Thirdly, the essay will explain the progressive role of judges in examining a statute by applying ‘Rule of Law’ through judicial review and statutory interpretation in order to protect constitutional rights. Although Parliament is still the sovereign, the rule of law enhances political and impliedly legal constraints for Parliament. Finally, it will analyse Parliamentary sovereignty in the context of the Constitutional Reform Act 2005.

1. Orthodox definition and the court’s role Parliamentary sovereignty cannot be found in statutes; Westminster has never enacted laws to provide itself the supremacy (Tomkins, 2003). Conversely, it is judges who have been developed and have recognised this doctrine (ibid). Evidence below illustrates that orthodox doctrine is legally absolute; the court denied interfering with the substances of statutes. Notwithstanding, it must be conceived that Parliament enjoys only legal sovereignty since there are political limitations on its power: ‘the internal (the attitudes of the people who make up parliament) and the external one (acceptance from those subjected to the law)’ (Alder, 2009: 163).The definition of Parliamentary sovereignty is divided into three aspects. Firstly, Westminster possesses unlimited law making power. It can enact laws without regards to ‘fairness, justice and practicality’ (Alder, 2009: 165). In this aspect, the court has to stringently apply an Act of Parliament; for instance, in 1965, the retrospective act (War Damage Act 1965) was passed by Parliament to discharge the state from liability. The War Damage Act was applied to revoke the House of Lords’ decision in Burmah Oil Company Ltd. v Lord Advocate [1965] A.C. 75, even though it contravened the rule of law which requires ‘certain and predictable’ laws (Jowell, 2004: 10). Secondly, the validity of laws legislated by Westminster cannot be queried – both continental courts (the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR)) and internal courts cannot annul an Act of Parliament (Alder, 2009: 165). With regard to the British court, cases illustrate that judges adhere to legislative supremacy, for example, the court in Ex parte Canon Selwyn (1872) 36 J.P. 54 denied to query the validity of a statute. Furthermore, according to Edinburgh and Dalkeith Railway Co v Wauchope (1842) VIII Clark & Finnelly 710 8 E.R. 279, the British court must regard ‘the enrolled Act rule’; judges cannot question the internal process of Parliament if the bill is affirmed by both Commons and Lords and bestowed Royal Assent. Thirdly, Parliament ‘may not bind its successors’; present and future Parliaments enjoy their sovereignty (Tomkins, 2003: 105). The doctrine of implied repeal is exercised by judges when there are two conflicting Acts on a similar subject; the later statute abrogates the previous one (Bradley, 2004). In Vauxhall Estates v Liverpool Corporation [1932] 1 K.B. 733, it can be deducted that it is inconceivable for Parliament to enact laws which inhibit the implied repeal as Avory J (at 743) states that ‘no Act of Parliament can effectively provide that no future Act shall interfere with its provisions’.

2. ‘Europe’ and Parliamentary Sovereignty

It has to restate that the doctrine of legislative supremacy signifies merely the absence of legal constraint, not political counterpart (Alder, 2009). In this section, the Human Rights Act 1998 (HRA) and the European Communities Act 1972 (ECA) will be discussed. According to them, Parliament still maintains supremacy as a matter of form. Nevertheless, it is political pressure indirectly imposed by judges that control the legislative substances.

2.1 The Human Rights Act 1998 The UK’s devotion to the European Convention on Human Rights (ECHR) from 1951 was a crucial stride in expanding protection for human rights. The HRA was prescribed in order to include rights articulated in ECHR into domestic law. There are two dimensions to be considered. To begin with, the HRA does not legally challenge Parliamentary sovereignty. Under section 3, judges possess an obligation ‘to read and give effect to primary legislation in a way that makes it compatible with Convention rights’ (Tomkins, 2003: 191). If judges cannot do so, they can adjudicate ‘a declaration of incompatibility’ (section 4). A declaration ‘does not affect the validity, continuing operation or enforcement of the provision’ (section 4(6) (a)). In other words, the HRA does not confer authority to the court to invalidate an Act; Parliament is merely asked to reevaluate that statute. If it determines not to amend or to revoke those statutes, Westminster retains its supremacy; the court cannot overturn that enactment (ibid). Moreover, section 6(2) can be interpreted that provided ‘an Act requires a public authority to act in a way which is incompatible with a Convention rights, such action is not unlawful’ (Tomkins, 2003: 190). This section also confirms that Westminster holds its sovereignty; it can lawfully enact legislation flouting human rights. Furthermore, the above raises a question: ‘should Parliament deliver such an Act although it has the lawful authority?’ Political impediments can answer it. In respect of section 3 of the HRA, the court is required to construe an Act ‘in a way which is compatible with Convention rights’. Insofar as Westminster decides to negate human rights, it has to legislate in ‘much clearer language’ (Elliott, 2002: 347). The application of clear language ‘will draw parliamentary and public attention to human rights; as a matter of political fact’ (ibid). Hence, the government (when proposing a Bill to Parliament) is demanded to progress ‘a compelling justification for right-infringing legislation if it is to command support within and outside Parliament’ (ibid). Additionally, and regarding a declaration of incompatibility, although Parliament can determine not to amend incompatible statutes, the court indirectly ‘deliver[s] a [political] wound to Westminster’s handiwork that will often prove mortal’ (Bradley, 2004: 55-56). This is because British law will be strongly condemned since it fails to vouch for ‘the pan-European human rights’ articulated in the ECHR (Elliott, 2002: 348). In short, the HRA secures Parliamentary sovereignty as a matter of form. Notwithstanding, it is ‘judges’ who indirectly impose control over the substance of legislative power through political pressure (Ewing, 1999). The interpretation (HRA, section 3) and a declaration of incompatibility politically (HRA, section 4) result in qualifications that Parliament cannot capriciously pass laws of which substances violate human rights.

2.2 The European Communities Act 1972

The accession to the European Community poses a challenge to legislative supremacy. In 1972, the ECA was enacted to give domestic legal effect to the Community law. It can be deducted from the ECA that the form of Parliamentary sovereignty still remains in the UK, albeit before the accession of UK into the Community the ECJ adjudicated in Costa v. ENEL [1964] E.C.R. 585 that Community law must prevail over laws of member states (which entirely opposes the orthodox doctrine of Parliamentary sovereignty because ‘[nobody] can override or set aside the legislation of Parliament’) (Dicey, 1959: 40 cited in Bradley, 2004: 43). Section 2(4) of the ECA provides the domestic court a jurisdiction ‘to construe and give effect’ to an Act in conformity with Community law. Besides, section 3(1) authorises a domestic court ‘to determine and to adjudicate on disputes arising under Community law’ (ibid). These provisions elaborate two reasons why legislative supremacy form remains intact. Initially, the jurisdiction of the court to decide cases relating to the Community law is not the power that the court allocates to itself; instead, it is Westminster (as usual) which empowers judges with this jurisdiction. Secondly, section 2(4) merely confers a power to judges to interpret statutes in concordance with Community law; this does not compete with to Parliamentary sovereignty since it only inhibits judges to abrogate an Act but does not hinder the interpretation task. In R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 A.C. 603, it raised a problem of what judges must do provided Westminster passed an Act incongruous with the Community law. The court regarded this case as ‘one of interpreting the Act in question’ (Alder, 2009:173). Eventually, it disapplied an inconsistent Act. The term ‘disapply’ only refers that an Act in question ‘has no application’ in the case – it is not invalidated by judges; therefore, legislative sovereignty is not overridden by the Community law (ibid). From the abovementioned, the court’s obligation to uphold the Community law relies on the operation of the ECA. As Parliament has the sovereignty to enact law conceding a domestic enforcement of the Community law, it can pass an Act departing UK from the Community (Elliott, 2002). Nonetheless, the fact that Westminster can withdraw the UK from the Community is constrained by political limitation (ibid). Allan (1985: 618 cited in Elliott, 2002: 355) comments – as far as the European Community did supersede the UK as a rudimentary ‘political entity to which the average or representative citizen owed his first and natural allegiance’, the British court should reflect this notion through the doctrine of legislative supremacy. Elliott (2002: 355) additionally states that if any institution acquires the aforementioned status, the likelihood of Parliament ‘to… withdraw its recognition of such structure will necessarily diminish’. These notions are illustrated in Thoburn v Sunderland City Council [2003] Q.B. 151. In this case, the common law was applied to alter legislative supremacy (Tomkins, 2003). Laws LJ (Thoburn, para. 62) considers the ECA as a ‘constitutional statute’ which ‘conditions the legal relationships between citizen and state in some general overarching manner, or enlarges or diminishes the scope of what are now regarded as fundamental rights’. Importantly, constitutional statute cannot be ‘implied repealed’ – but is still subject to ‘express repeal’ (ibid, para. 63). In other words, Thoburn contemplates that the Community law normally overarches a domestic Act (Elliott, 2004). Herein, the Community tends ‘to [increasingly] acquire the status of primary political institution’ since the common law considers (and provides special immunity to) the ECA (which permits the enforcement of the Community law) as a constitutional statute; therefore, the power of Parliament to practically withdraw UK from the Community is likely to be mitigated (Elliott, 2002: 355). In brief, the ECA formatively preserves Parliamentary sovereignty. However, judges seem to incrementally recognise the European Community as a primary political institution after the ECA is regarded and protected owing to ‘constitutional statute’ status. Henceforth, a political constraint is indirectly imposed by the court against Westminster for not capriciously legislating to withdraw UK from the Community.

3. Rule of Law and Parliamentary sovereignty

Germane to Lord Hope’s viewpoint in Jackson (para. 107), this section will analyse how ‘Rule of Law’ imposed by judges constrains legislative supremacy. Dicey (1959: 413 cited in Bradley 2004: 35) states that ‘from the moment Parliament has uttered its will…, [it] becomes subject to the interpretation…by judges’. Thus, ‘statutory interpretation’ and more extensively ‘judicial review’ become essential components in imposing ‘Rule of Law’ (Bradley, 2004; Jowell, 2004). This principle imposes political and impliedly legal limitations for Parliament. On the one hand, regarding political limitation, before the HRA, judges have already acknowledged that some fundamental rights rank as constitutional rights; for instance, right of access to the court and freedom of expression. The executive cannot utilise the power (e.g. to make regulation) derived from a statute which is articulated in merely ‘general words’ to encroach upon constitutional rights; if so, judges can apply judicial review to declare that the regulation is ultra vires a statute (R v Lord Chancellor, ex parte Witham [1998] 2 W.L.R. 849, at 581 (Laws J)). Later, in R v Secretary of State for the Home Department ex parte Simms [2000] 2 A.C. 115, the court mentions the above notion under ‘the principle of legality’ – the type of ‘Rule of law’ aiming ‘to restrain bad law’ (Alder, 2009: 133). With regard to which, judges must interpret all Acts. Lord Hoffmann said in Simms (at 131) that Westminster cannot enact legislation in ‘general or ambiguous word’ to deprive fundamental rights; instead, it must, for accountability, legislate in ‘clear language’. It is implied that if the executive is bestowed an authority by a statute prescribed in clear language to infringe rights, its rule or order will not be ultra vires that statute. To put it simply, Parliament still formatively possesses sovereignty as it can legislate opposing to fundamental rights by using clear language (Bradley, 2004). Nevertheless, Westminster must regard that these fundamental rights are products of the common law. As the common law is ‘generated by disputes brought to the court’, it depicts ‘the values of the community’ (Alder, 2009: 134). Consequently, it is the ‘external political constraints’ which limits the supremacy, as Lord Hoffmann states in Simms (at 131) – ‘principle of legality’ requires that if Westminster desires to legislate contravening fundamental rights, ‘[it must] squarely confront what it is doing and accept the political cost’. One the other hand, Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147 impliedly demonstrates that ‘Rule of law’ seems to pose legal constraints for substances of statutes – the principle is pragmatically implicated through ‘judicial review’. In Anisminic, a statute possesses ‘an ouster clause’ protecting the commission from judicial review; subsequently, the court interpreted it in a way that not precludes the process. The case is contemplated as ‘a judicial attempt to subvert Parliament under the cloak of interpretation’ (Alder, 2009). From this point, Parliament formatively remains the sovereignty; it can pass laws containing an ouster clause. Interpretation cannot be regarded as ‘a sovereign act’ since it only ‘requires attention for possible meaning [and it] may be wrong in law’; conversely, it cannot be stated that Westminster’s decision ‘can be unlawful’ (ibid). Notwithstanding, in Anisminic, the court tends to indirectly put a legal constraint for Parliament. In addition, recently, some judges have tended to refuse legislative endeavour to abate judicial review (Jackson, para.159 (Baroness Hale)). Therefore, Westminster is impliedly obliged not to pass laws containing substances which overthrow judicial review – a process carrying out ‘Rule of Law’. Provided it does so, judges may use the statutory interpretation, like in Anisminic, to preserve judicial power.

4. Constitutional Reform Act 2005 and Parliament

The 2005 Act strengthens the role of judges by emphasising ‘Rule of Law’ (Constitutional Reform Act, Part 1). The prevalence of the above tenet is enhanced by the formation of judicial independence. Before the 2005 Act, legislative branch tended to overarch judiciary counterpart. The British Supreme Court lay in Parliament – the House of Lords; concurrently, judicial appointment was responded by the Lord Chancellor – the speaker of the Lords and the head of the UK judiciary. Nevertheless, the 2005 Act creates the Supreme Court outside the Lords and organising the Judicial Appointments Commission responsible for choosing judges. From all above, the court has increasingly played a significant role in controlling over substances of statutes. Its judgements can implicate political limitations over substances of statutes (the HRA and the ECA); whilst a statutory interpretation and judicial review importantly protect ‘Rule of Law’ from legislative encroachment (see Simms and Anisminic). The foundation of the independent Supreme Court and the Judicial Appointments Commission tends to abate the risk that the court, which has to scrutinise Acts of Parliament, is overpowered by the legislature. Nonetheless, significantly, these judicial roles cannot be realised without the affirmation of Westminster – it is Parliament that exercises its sovereignty by enacting the 2005 Act to enhance judicial role as a protector of constitutional decency.

5. Conclusion Parliamentary sovereignty is still absolute as a matter of form. Westminster can theoretically pass laws it wishes; judges cannot declare a statute invalid. However, in reality, as Lord Hope mentions, there are some qualifications thwarting the unlimited freedom to legislate. It is the court that implements these impediments through indirectly political and (implied) legal means. Nevertheless, it is Westminster that increasingly affirms these scrutinising roles of judges after enacting Constitutional Reform Act 2005. In other words, the continuity of namely – the protection of human rights, the domestic application of European Community law and the enhancement of the rule of law – should not be pondered as merely the product of the court, but it is also Parliament’s, by averring the judicial independence in the 2005 Act.

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