The British Parliament was once supreme. Discuss with reference to Britain’s membership of the EU and its obligations to the ECHR Essay
It has been suggested that the British Parliament was once supreme (or sovereign) but that its supremacy has been eroded as a result of Britain’s membership of the EU and its signature of the ECHR. In order to examine this proposition, it is necessary to consider the origins or traditional doctrine of Parliamentary supremacy and differing theories of supremacy. This essay will also consider evidence that Parliamentary sovereignty has suffered severe trammelling due to obligations arising from membership of the EU by enumerating the specific issue of partial entrenchment.
The essay will also consider Britain’s signature of the ECHR in the same light. The origin of Parliamentary sovereignty began with the reduction in the King’s prerogative powers which brought about a correlative rise in the sovereignty of Parliament. From 1688, the supremacy of Parliament over the Crown was established and from this time the prerogative powers of the Crown continued, abolished or curtailed as Parliament determined. Diplock LJ stated in BBC v Johns (1965) that no new prerogative powers may be claimed by the Crown. The traditional doctrine of Parliamentary sovereignty as put forward by A. V Dicey includes firstly, the notion that the legislative ability of the UK Parliament is unlimited, in the sense that its powers to make laws on any subject matter are not open to any challenge. An example is Parliament’s ability to legislate on altering its term of office. Under the Parliament Act of 1694, the life of Parliament was limited to three years, fearing the effects of an election; Parliament passed the Septennial Act, extending the life of Parliament to seven years. The Septennial Act under a written constitution such as the United States would be legally invalid.
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However, Dicey argued ‘Parliament made a legal though unprecedented use of its powers’. Parliament may also grant independence to dependent states or colonies as with the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979. The second notion put forward by Dicey says Parliament cannot be restricted by a predecessor or restrict the power of a future Parliament (successor). However, Parliament could otherwise suffer a limitation of its powers as stated by TRS Allan ‘Parliament in 1972 accomplished the impossible and (to a degree) bound its successors’.
The statement made by Allan assumes that apart from the effect of accession to the European Communities, no departure from this traditional doctrine is possible. Thirdly, Dicey opines that no one may question the validity of an act of Parliament. In Pickin v British Railways Board (1974), the opinion of Lord Reid represents the correct contemporary judicial view on the authority of statute where it appeared clearly settled that the notion of finding an Act of Parliament invalid could be said to be obsolete. This lack of legal restraint has both a positive and negative aspect.
It means while Parliament can legislate on any subject, it cannot bind successive Parliaments. If it could, then clearly each successive Parliament would not be free to legislate on any matter. Thus where there is inconsistency between a subsequent and a former statute, the latter statute impliedly repeals the earlier one to the extent of its inconsistency with the former as derived from Ellen Street Estates v Minister of Health (1934) where Maughan LJ held that Parliament cannot bind itself to the form of future enactments.
However, in AG for New South Wales v Trethowan (1932), the Privy Council upheld the requirement of a referendum before a Bill to abolish the Upper House was presented for the royal assent. An example is s. 1 of the Northern Ireland Act 1998 which provides that Northern Island will not cease to be part of Her Majesty’s dominions without conducting a poll in Northern Ireland.
If a future Act of Parliament posits to revoke this guarantee without first conducting a poll in Northern Island, it is at least true that the courts will hold the latter statute to be invalid, as had occurred in the South African case of Harris v Minister of the Interior (1951). What then has been the impact of the European Communities Act 1972 on the doctrine of Parliamentary sovereignty? When the UK became a member of the European Community in January 1, 1973 by virtue of the Treaty of Accession 972, treaties and community law capable of having direct effect in the UK were given such effects by s2(1) of the European Communities Act 1972, which incorporated all existing and effective Community law into UK law. The problem arises in respect of statutes passed after January 1, 1973. According to the traditional doctrine of Parliamentary sovereignty, the later Act should prevail as representing the latest expression of Parliament’s will but the Community doctrine of primacy of EU law and s2(4) would require Community law to prevail.
In this respect, it is clear from judgements of the ECJ (Costa v ENEL (1964)) that Community law should prevail over national law. In Felixstowe Dock and Railway Co v British Transport Docks Board (1976), Lord Denning dismissed a challenge to UK law on the basis that once a Bill is passed by Parliament and becomes statute, all discussion about the treaty should be disposed, saying that ‘these courts will have to abide by the statute without regard to the Treaty at all’.
Further support for Lord Denning’s view comes from the Factortame litigation where it was proposed that support might even be found for the inference that words in a statute, although expressly requiring a court to do so, could not override Community obligations. In the Secretary of state for employment (1994) case, the House of Lords followed Factortame in finding that judicial review was available for the purpose of securing a declaration that UK primary legislation is incompatible with EU law.
It was found that the provisions of the Employment Protection (Consolidation) Act 1978 were indirectly discriminatory and were therefore in breach of Article 141 and the Equal Pay and Equal Treatment directives. However, an alternative explanation of Factortame was given in Thoburn (2002) where there was a challenge to EC regulations on the exclusive use of metric measurements by traders and retailers. Laws LJ held that Parliament could not bind itself in anyway and had not done so in the 1972 act.
In examining Parliamentary supremacy in the light of ECHR, the New Law Journal of 12 March 2010 discussed the case of R v Horncastle 2009 where the supreme court refused to follow jurisprudence of the ECtHR on the basis that it fails to sufficiently appreciate aspects of domestic criminal law relating to hearsay evidence. The issue is what are the implications for the applications of the HRA 1998 as well as judicial dialogue between the UK and Strasbourg courts. S. 2 (1) of the HRA 1998 requires the UK court to ‘take into account Strasbourg jurisprudence’.
It should be noted that in the case of Alconbury Dev Ltd v Secretary of state for Environment 2001 (UK HL), Lord Slynn famously held that UK courts should ‘in the absence of some special circumstances follow any clear and consistent jurisprudence of the ECHR’. It is also very important to note that Professor Jade Wright suggested that this practise is justified given that the ECtHR does not lay down exacting rules but instead ‘embodies very general principles which have to be mediated into national cultures’
In A v UK 2009, the ECtHR held that the UK’s detention of terrorist suspects amounted to a breach of procedural fairness as guaranteed by the ECtHR. The response to A v UK by the House of Lords in Secretary of state for the Home Department v AF is relevant again to deal with terrorist suspects based on ‘solely or to a reasonable degree’ on closed evidence which the controlle had not had the opportunity to properly challenge. In this case the HL followed A v UK finding that there had been a breach of article 6.
Lord Hoffman felt that the ECtHR in A v UK had been wrong ‘and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism’. Nonetheless he held that the domestic court had no choice but to submit. A turn of events occurred in Horncastle 2009 which was a robust decision where seven law lords unanimously refused to follow the ECtHR jurisprudence on the exact point issue.
In this case the supreme court considered the case of Al Khawaja v UK 2009 where it was held in reliance to the AF decision, it was argued before the court in Horncastle that the decision of the ECtHR in Al Khawaja was determinative of the issue. Lord Phillips, president of the Supreme Court refused to accept Al Khawaja in Horncastle and stated that ‘there would be rare occasions where this court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or indeed accommodates particular aspects of our domestic process’.
It should be noted that the decision in Al Khawaja is currently the subject of an application to the grand chamber for reconsideration. The grand chamber has also decided to adjourn the UK government’s request for a reconsideration of Al Khawaja until after the Supreme Court has given his judgement in Horncastle. Another example of a Britain’s obligations to the ECHR is the incorporation of the Charter of Fundamental Rights into EU Law in the 2009 Lisbon Treaty.
The charter will apply to all member states and the UK however, the UK government is adamant that the UK specific protocol will ensure that the charter will not extend the powers of any court (UK / European) to strike down UK legislation or to create any greater social or economic rights than those already provided under UK domestic laws. In conclusion, it should be noted that EU laws are binding on all member states, and therefore, take precedence over British domestic law.
Apart from a few exceptions highlighted in this essay, EU legislation automatically becomes law within the UK, irrespective of the opinion of the British Parliament. Although this is the case, Parliament could agree to repeal previous legislation, withdraw from the EU to demonstrate that Parliamentary sovereignty still exists. However, this is unlikely unless one of the major political parties were to adopt a strong anti-EU policy.