The doctrine of Parliamentary Sovereignty is a principle of the UK constitution and has been for some 300 years. The doctrine effectively means that Parliament, as the ultimate source of law, can make such law as it determines and no court may question the validity of any legislation that it creates. Generally, the courts cannot overrule its legislation. ‘Parliamentary sovereignty is the most important part of the UK constitution’ (www.parliament.uk).
When the UK joined the European Community in 1972, the UK and its citizens, became subject to European Community Law. When a State joins the European Union all Community law becomes part of its own legal system i.e. it is ‘directly applicable’. Community law is primarily contained in the Articles of the EC Treaty which merely lay down general principles. These principles are supplemented by regulations, directives and decisions which provide more details of the principles in the Articles. These enable the member states to ascertain how (if at all) their domestic laws may need to be amended or modified so as to accord with Community law.
Article 249 EC Treaty provides that regulations are directly applicable. This results in directives automatically becoming part of UK law without any parliamentary intervention. Directives are addressed to member states and are binding as to the result to be achieved, but the form and method of introduction is left to the member states. Decisions are binding in their entirety upon those to whom they are addressed, whether member states or individuals. The feature of direct enforceability is a significant one. The provisions of Community law which automatically form part of the national law of member states can be relied upon by individuals before their national court, irrespective of the national law on a particular issue.
In order to give internal legal effect to Community law and with the aim of avoiding conflict between UK and Community law, the European Communities Act 1972 was passed. The central provision of the Act is provided under section 2(1) which states that, ‘all such rights, powers, liabilities, obligations and restrictions…created or arising under the Treaties…are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed or followed accordingly’. This section deems law which under the EC Treaties is to be given immediate legal effect to be directly enforceable in the UK. There is therefore no need for a fresh act of incorporation to enable UK courts to enforce each EC Treaty provision, regulation or directive which according to EC law has direct effect. Thus, section 2(1) makes the concept of direct effect a part of the UK legal system. After the passing of the European Communities Act 1972, Community law therefore became directly applicable as part of UK law. ‘Any rights or obligations created by the Treaty are to be given legal effect in England without more ado.’ (H.P. Bulmer Ltd v J. Bollinger SA per Lord Denning).
However, ‘the acceptance of the supremacy of Community law within the UK has not been problematic’ (Craig & De Burca 2003, 301). The fundamental constitutional principle of Parliamentary sovereignty has clearly been a central obstacle to the acceptance by the UK of the supremacy of EC law. In its traditional formulation, Parliamentary sovereignty holds that Parliament has the power to do anything other than to bind itself for the future. A basic principle of this nature clearly made it very difficult for the UK to transfer to the European Community institutions a sphere of exclusive legislative power. In the case of Shields v E. Coomes (Holdings) Ltd, Lord Denning was willing to accept the principle of supremacy of Community law, declaring that Parliament clearly intended, when it enacted the European Communities Act 1972, to abide by the principles of direct effect and supremacy (at 461). In his view, national courts should resolve any ambiguity or inconsistency with EC law in national statutes so as to give primacy to EC law.
One of the first conflicts between national law and Community law which arose before the domestic courts was in Macarthys v Smith. ‘In construing our statute, we are entitled to look to the EC Treaty as an aid to its construction; but not only as an aid but an overriding force. If on close investigation it should appear that our legislation is deficient or inconsistent with Community law by some oversight of our draftsmen then it is our bounden duty to give priority to Community law’ (Lord Denning at 329). The extent to which Community law overrides inconsistent national law can be illustrated in the case of R v Transport Secretary ex p Factortame where Spanish fishing interests challenged as contrary to Community law the Merchant Shipping Act 1988. This Act defined the term ‘British fishing vessels’ in a restrictive way which sought to restrict non-British interests from having access to the British fishing quota. The British courts were prevented from applying the Act. Lord Bridge had stated that long before the United Kingdom joined the Community, the supremacy of Community law over laws of members states was well established (Bradley & Ewing 2007, 72). Whilst it has therefore been accepted that EC law is supreme to national law and domestic courts are under an obligation to give full effect to EC law, the same cannot be said with respect to the Human Rights Act 1998 (‘HRA 1998’).
The HRA 1998 came into effect in October 2000 and allowed the courts to give further effect to the European Convention on Human Rights (‘the Convention’). ‘The Act was intended to be a delicate balance between the preservation of parliamentary sovereignty, on the one hand, and the delivery of rights on the other’ (Ames 2003). Unlike the European Communities Act 1972, The HRA 1998 did not incorporate the European Convention into domestic law as such and it did not give the Convention any enhanced or supreme status in domestic law. Thus, the Act preserved parliamentary sovereignty and in cases of inescapable conflict between domestic law and Convention rights, domestic law prevails (Epstein & Foster, 2009). Under the HRA 1998, the courts have no powers to disapply primary legislation which cannot be read or construed so as to be compatible with the rights guaranteed by the Convention. Under the doctrine of Parliamentary sovereignty, the legislature can pass such laws as it sees fit, even to the extent of removing the rights of citizens.
Despite this, the Act has enabled the Government to better comply with its obligations under the Convention and to provide the individual with a more direct and effective way of enforcing their Convention rights without having to petition the European Court of Human Rights in Strasbourg. Section 2 of the HRA 1998 requires the domestic courts to have regard to any previous Convention case law and principles. In addition, under section 3, ‘so far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights’ and sections 6 to 8 impose a general duty on public authorities not to interfere with Convention rights, and allow victims to seek direct remedies for breach of their Convention rights. However, the Act expressly states that the courts cannot invalidate any primary legislation, essentially Acts of Parliament: Section 3(2)(b) ensures that the Act ‘does not affect the validity, continuing operation or enforcement of any incompatible primary legislation’. The HRA 1998 therefore reaffirms and recognises the power of Parliament to make legislation to make primary legislation that is incompatible with the rights provided under the European Convention on Human Rights.
If a court is unable to construe a statute in a way which is compatible with the Convention, it is able to expose the problem by making a declaration that there has been a violation. If it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the HRA 1998 confers no power on the court to strike down such legislation. All they can do is issue a declaration of incompatibility and leave it to the legislature to remedy the situation through new legislation (Section 4). Such a declaration will encourage the government and Parliament to consider urgent amendments to the relevant legislative provision. The incompatible legislative provision remains valid and effective, unless and until legislative amendments are made. Further, Parliament has discretion whether to remove the incompatibility, thereby maintaining Parliamentary Sovereignty. Under Section 19 of the HRA 1998, the Minister responsible for the passage of any bill through Parliament is required to make a written statement that the provisions of the Bill are compatible with Convention rights. Alternatively, the Minister may make a statement that the Bill does not comply with the Convention rights, but that the Government nonetheless intends to proceed with it.
The first substantial ‘declaration of incompatibility’ was made by the Court of Appeal in H v Mental Health Review Tribunal N&E London Region. Here, the Court of Appeal held that ss 72 and 73 of the Mental Health Act 1983 were incompatible with Articles 5(1) and 5(4) of the Convention. This was on the basis that the sections required a detained person to show that they should not be detained rather than on the authorities to show that they should be detained, thereby reversing the normal burden of proof.
Therefore, whilst the European Communities Act 1972 has the effect of narrowing Parliamentary sovereignty, the HRA 1998 ‘preserves Parliament’s sovereignty, so that any law passed by Parliament prevails even if it should infringe the Convention’ (Hoffman & Rowe 2006, 36).
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