The Common Law Challenges to Parliamentary Sovereignty
N.W Barber, The United Kingdom Constitution: An Introduction (OUP 2021) Chapter 5, pg. 82-92Constitutional statutes have kept Parliament in charge: Parliament can change any law it wants, but sometimes it must do so explicitly.
judges have suggested that there are more fundamental constraints on Parliament’s law-making powers which are constitutional principles so embedded in the constitution that even parliament cannot change them.
if Parliament ever tried to pass a law that would completely eliminate judicial review or prevent courts from doing their normal job of ensuring fairness and legality, judges might have to step in and question whether such a law should be allowed.
Lord Hope: opined that ‘the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality
if parliament tried to restrict democracy the judiciary would protect them, even if it meant challenging a law passed by parliament
there has never been a case in English constitutional history in which the courts relied upon common law principles to invalidate an act of Parliament
R (Privacy International) v Investigatory Powers Tribunal:
In simple terms, the decision confirmed that Parliament cannot completely remove the power of judicial review, especially when fundamental rights or abuses of power are at stake. (breaches rule of law)
Legal Fictions:
Legal fictions are ideas that the law accepts as true, even if they aren't always accurate. They help the legal system run smoothly, solve logical gaps, and ensure fair results. By using legal fictions, courts can handle complicated cases without needing to change existing laws.
Ouster Clauses: provisions in legislation that attempt to limit or exclude the jurisdiction of courts to review decisions made by certain bodies, such as tribunals or government agencies
Anisminic Principle (Anisminic Ltd v Foreign Compensation Commission (1969)):
This principle states that any decision made by a public authority or tribunal that involves an error of law is not legally valid, This means that even if an ouster clause is in place, it does not prevent the courts from reviewing a decision if it contains a fundamental legal error.
Legal fictions in R (Privacy International) v Investigatory Powers Tribunal:
In Privacy International, the relevant section of the Regulation of Investigatory Powers Act 2000 (RIPA) contained an ouster clause that seemed to bar any court from questioning the decisions of the Investigatory Powers Tribunal (IPT). However, the Supreme Court held that, based on the Anisminic principle, this ouster clause could not prevent judicial review where there was a fundamental legal error.
R. v Secretary of State for the Home Department Ex p. Simms [2000] 2 AC 115
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights
The Human Rights Act 1998 will not detract from this power (political constraints, not legal)
principle of legality means that Parliament must squarely confront what it is doing and accept the political cost
principle of legality applies to subordinate legislation as much as to acts of Parliament
R. (on the application of Jackson) v Attorney General [2006] 1 A.C. 262
Lord Steyn para 71-103.
the dominance of a government elected with a large majority over Parliament has progressively become greater since Lord Hailsham warned of its dangers in 1978
The Hunting Act 2004.
Labour government decided that it would abolish the ancient liberty of the British people to take part of fox hunting. Bills passed by the House of Commons were rejected by the House of Lords. The government decided to use the Parliament Acts 1911 and 1949 to enact this measure.
A Bill’s sole reason for existence is to change the law and The resulting Act is the law
Because of its unique purpose of establishing clear legal rules, a Bill cannot communicate with the reader in the same way other types of writing do.
The Hunting Act 2004 was passed without the consent of the House of Lords, using the Parliament Act 1949 process an amendment passed without the HOL’s consent could set a precedent for further eroding the Lords’ role in the legislative process
Lord Hope para 104-128.
UK constitution is dominated by the sovereignty of Parliament
Parliamentary sovereignty is no longer, if it ever was, absolute
certain UK laws, created by Parliament, limit Parliament’s absolute legislative power, especially in relation to EU law and human rights obligations:
European Communities Act 1972:
Section 2(1) of this Act makes European Union (EU) law automatically part of UK law, meaning that EU laws apply in the UK without needing separate approval by Parliament.
Section 2(4) reinforces this by implying that if there’s a conflict between EU law and UK law, UK law should be interpreted to align with EU law.
This effectively gives EU law supremacy over conflicting UK laws, meaning UK courts prioritize EU law in cases of conflict. Although Parliament didn’t explicitly state it could not pass laws that conflicted with EU law, in practice, it’s limited from doing so.
This concept was reinforced by the Factortame case, where UK courts upheld EU law over UK law, marking a significant limitation on Parliament's sovereignty.
Human Rights Act 1998:
Section 3(1) of the Human Rights Act requires UK courts to interpret UK legislation in a way that aligns with the rights outlined in the European Convention on Human Rights (ECHR), as long as it is possible to do so.
This means that, if possible, courts may interpret legislation in a way that might differ from what Parliament originally intended, to ensure compatibility with human rights standards.
It has been suggested that some of the provisions of the Acts of Union of 1707 are so fundamental that they lie beyond Parliament’s power to legislate.
It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal.
courts have a role in upholding fundamental principles, suggesting that if Parliament were ever to pass legislation that fundamentally undermined democracy or the rule of law, the judiciary might have the power to intervene
courts are the "guardians of the rule of law," and this might entail checking parliamentary actions if they conflict with constitutional principles
Baroness Hale para 142-166
while Parliament is theoretically supreme, this supremacy is subject to certain unwritten constitutional principles that might require protection
the courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny."
courts have a duty to protect fundamental rights and democratic principles. She implied that if Parliament attempted to undermine these core principles, it might be appropriate for the judiciary to intervene.
judicial oversight could act as a check on Parliament, especially in protecting the rule of law and individual rights.
Paul F. Scott, ‘Once more unto the breach: R. (Privacy International) v Investigatory Powers Tribunal’ (2020) 24 (1) Edinburgh Law Review 103-109
Benjamin Joshua Ong, ‘The ouster of Parliamentary sovereignty?’ [2020] Public Law 41-49
Seminar Questions
1. Principle of Parliamentary Sovereignty
Parliamentary Sovereignty holds that Parliament is the highest legal authority in the UK, able to create or repeal any law. Courts cannot overrule Parliament’s legislation or bind future Parliaments, preserving legislative freedom.
2. Principle of Legality
The Principle of Legality ensures that Parliament must clearly state its intention if it intends to limit fundamental rights. Courts interpret vague laws in a way that protects these rights, maintaining them unless Parliament is explicit.
3. Principle of Legality and Tension between Parliamentary Sovereignty and Human Rights
The Principle of Legality helps protect rights without directly challenging Parliament but can create tension by limiting how freely Parliament can legislate against rights. This balance upholds rights while respecting Parliament’s authority, though it subtly curbs absolute sovereignty.
4. Controversial Judgments in Jackson
In Jackson v Attorney General, judges like Lords Steyn and Hope suggested limits to Parliamentary Sovereignty, hinting that the Rule of Law could override Parliament if fundamental principles were threatened. This was controversial as it challenged the traditional view of absolute sovereignty.
5. Ouster Clauses
Ouster Clauses are provisions that aim to exclude judicial review of certain decisions, limiting court intervention. They are often included in legislation to grant specific powers to public bodies without judicial interference.
6. Treatment of Ouster Clauses by Courts
Courts have generally resisted ouster clauses, as seen in Anisminic v Foreign Compensation Commission, where the court effectively disregarded the clause to uphold judicial review, asserting that ouster clauses must be very clear to be effective.
7. Parliament vs. Rule of Law as the Ultimate Authority
In practice, Parliament remains supreme, but courts have asserted the Rule of Law as a check on Parliament’s power, especially on fundamental rights. This creates a balance where Parliament legislates, but the judiciary ensures compliance with core legal principle