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Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention

Published online by Cambridge University Press:  02 January 2018

Mark Elliott
Mark Elliott*
Affiliation:
University of Cambridge; St. Catharine's College, Cambridge
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Abstract

Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 3 , September 2002 , pp. 340 - 376
Copyright
Copyright © Society of Legal Scholars 2002

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References

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3. Dicey recognised the existence of this gap: hence his distinction between the legal sovereignty of the legislature and the political sovereignty of the electorate.

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6. Lord Woolf ‘Droit Public - English Style’ [1995] PL 57 at 68–69.

7. Sir John Laws ‘Law and Democracy’ [1995] PL 72 at 87. Laws also explores the relationship between constitutionalism and sovereignty in ‘Judicial Remedies and the Constitution’ (1994) 57 MLR 213 and ‘The constitution: Morals and Rights’ [1996] PL 622. For a critical review of Laws' writing on these issues, see J A G Griffith ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159.

8. See'Human Rights: A Twenty-First CentuIy Agenda’ [1995] PL 386 ‘The Constitution in the Twenty-First Century’ in Lord Nolan and Sir Stephen Sedley (eds) The Making and Remaking of the British Constitution (London: Blackstone Press, 1997). Sedley's work in this area is critiqued by J A G Griffith ‘The Common Law and the Political Constitution’ (2001) 117 LQR 42.

9. Both judicially and extra-curially, Lord Cooke of Thomdon has long maintained that some rights are so fundamental that it must lie beyond the competence of legislatures to interfere with them. See L v M [1979] 2 NZLR 519 at 529; Brader v Ministry of Transport [1981] 1 NZLR 73 at 78; New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374 at 390; Fraser v State Services Commission [19841 1 NZLR 116 at 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 at 398; ‘Fundamentals’ [1988] New Zealand LJ 158. For discussion, see P Rishworth ‘Lord Cooke and the Bill of Rights’ and Kirby, M ‘Lord Cooke and Fundamental Rights’ in Rishworth, P (ed) The Struggle for Simplicity in the Law (Wellington: Buttenvorths, 1997)Google Scholar.

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11. See eg R v Director of Public Prosecutions, ex p Kebilene [2000] AC 326.

12. See eg R v Lord Chancellor, ex p Witham [1998] QB 575 at 581; cf Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2002] 1 CMLR. 50.

13. Lord Woolf, ‘Judicial Review - The Tensions between the Executive and the Judiciary’ (1998) 114 LQR 579 at 581.

14. R v Secretary of State for Transport, exp Factortame Ltd (No 2) [1991] 1 AC 603 at 658–659. A different view is offered, however, by the Divisional Court in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2002] 1 CMLR 50, in which it is suggested that the European Communities Act 1972 amounts to ‘constitutional legislation’ which is immune from implied repeal; importantly, the Act is said to enjoy this position because the common law recognises its constitutional status. This approach places greater emphasis on the role of the courts in according primacy to EU law, in contrast to Lord Bridge's analysis, which characterised the courts merely as the enforcers of Parliament's intention in this regard.

15. See eg Allan (1993), n 5 above, p 282ff.

16. Lord Woolf, n 6 above, at 68. Some of these examples of repugnant legislation are derived from Mann, F A Further Studies in International Law (Oxford: Clarendon Press, 1990) p 104.Google Scholar

17. Sir John Laws, ‘Judicial Remedies and the Constitution’ (1994) 57 MLR 213 at 223–224. The first example, relating to access to justice, is the context in which the courts have, to date, come closest (in a case not involving EU law) to the de fact disapplication of primary legislation. Indeed, a number of writers argue that the case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 can only be adequately explained in those terms. See, inter alios, H W R Wade ‘Constitutional and Administrative Aspects of the Anisminic Case’ (1969) 85 LQR 198; Wade, H W R and Forsyth, C F Administrative Law (Oxford: Oxford University Press, 2000) pp 706–710Google Scholar; Sir Robin Cooke ‘The Struggle for Simplicity in Administrative Law’ in Taggart, M (ed) Judicial Review Of Administrative Action in the 1980s (Auckland: Oxford University Press, 1986) p 10.Google Scholar However, in R v Lord Chancellor, exp Witham [1998] QB 575, Laws J explicitly rejected the notion that access to justice could be characterised as a non-derogable entitlement: the principle of parliamentary sovereignty, he said, precluded such an approach.

18. Lord Woolf, n 6 above, at 69. Allan, in contrast, is willing to countenance more thoroughgoing limitations upon parliamentary freedom. See Allan (2001), n 5 above, esp ch 8.

19. See Asylum and Immigration Act 1996.

20. R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 at 292.

21. When the Northern Ireland (Emergency Provisions) Act 1998 repealed the powers, contained in the Northern Ireland (Emergency Provisions) Act 1975, to introduce internment.

22. The Anti-terrorism, Crime and Security Act 2001 is discussed below.

23. Lord Woolf, n 6 above, at 69.

24. Laws, n 17, above, at 224.

25. Rights Brought Home: The Human Rights Bill (Cm 3782, 1997) p 10.

26. Human Rights Act 1998, s 3(1)Google ScholarPubMed.

27. Hence the duty imposed by s 3(1) applies only when consistent construction is ‘possible’.

28. Human Rights Act 1998, ss 3(2)(b) and 4(6)(a).

29. Human Rights Act 1998, s 4(2).

30. Human Rights Act 1998, s 10.

31. Lord Lester of Herne Hill QC, 583 HL Official Report (5th series) col 521, 18 November 1997.

32. D Feldman, ‘The Human Rights Act 1998 and Constitutional Principles’ (1999) 19 LS 165 at 187.

33. Feldman, n 32 above.

34. Lord Cooke, 583 HL Official Report (5th series) col 533, 18 November 1997.

35. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

36. Lord Bingham ‘Dicey Revisited’ [2002] PL 39 at 48.

37. As does the establishment of the Joint Committee on Human Rights, which (inter aha) scrutinises draft legislation for human rights compliance, and pays particular attention to Bills which are especially likely to impact upon fundamental rights.

38. A good example of systematic rights-oriented scrutiny of draft legislation is provided by the legislative procedure adopted in relation to the Financial Services and Markets Act 2000. In its first report, the Joint Committee on Financial Services and Markets expressed concern as to the compatibility of certain parts of the draft legislation with the European Convention on Human Rights (HL50/HC328-I, para 259ff). Consequently, the Committee was asked to produce a second report (HL66/HC465) examining the human rights implications of the draft legislation in detail. A number of amendments were made to the draft legislation in light of the recommendations contained in the second report.

39. See generally Lord Irvine ‘Activism and Restraint: Human Rights and the Interpretative Process’ [19991 EHRLR 350 at 366–367.

40. These exceptional cases are likely to arise when the applicant's case is politically unpopular. The government may then come under pressure to desist from invoking the s 10 amendment procedure.

41. But not certain. The Strasbourg Court applies a margin of appreciation doctrine in relation to those matters which it feels are more appropriately the preserve of national authorities than a transnational court. Consequently, in some contexts, a more deferential standard of review is adopted in Strasbourg; and it follows from this that while national courts may be willing to hold legislation to constitute a breach of the Convention, the deference inherent in the margin of appreciation doctrine may preclude the European Court from reaching the same conclusion. On the other hand, however, it is at least arguable that in cases where national courts have already concluded that a breach of the Convention has occurred, the rationale for the application of the margin of appreciation doctrine is somewhat undermined, given that, in such a case, the judicial assessment of local conditions - which the transnational Strasbourg Court considers itself less competent to make - has already been made by national judicial authorities.

42. Lord Irvine ‘Sovereignty in Comparative Perspective: Constitutionalism in Britain and America’ (2001) 76 NYULR 1 at 19 (original emphasis).

43. 583 HL Official Report (5th series) cols 1275–1276. 3 November 1997.

44. K Ewing ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79 at 92.

45. 317 HC Official Report (6th series) col 1301.

46. Art 46.

47. Art 1.

48. See generally House of Commons Library Research Paper 01/96 The Anti-terrorism, Crime and Security Bill: Parts IV and V: Immigration, Asylum, Race and Religion.

49. Ireland v United Kingdom (1978) 2 EHRR 25; however, the UK entered a derogation in respect of the internment policy, which was upheld by the court under art 15.

50. See Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644.

51. The European Court tends to apply a relatively low level of scrutiny when testing derogations against the art 15(1) criteria. For examples relating to Northern Ireland, see Ireland v United Kingdom (1978) 2 EHRR 25 and Brannigan v United Kingdom (1994) 17 EHRR 539; for comment, see 5 Marks ‘Terrorism and Derogation under the European Convention on Human Rights’ [19931 CW 360 and ‘Civil Liberties at the Margin: The United Kingdom Derogation and the European Court of Human Rights’ (1995) 15 OJLS 69.

52. See eg Feldman, n 32 above, at 173–178.

53. Eg the individual's right to privacy under art 8 may have to yield to the collective interests set out in art 8(2), such as national security and public safety.

54. Scotland Act 1998, s 28(7)Google ScholarPubMed.

55. The ongoing competence of the Westminster Parliament is implicit in the transfer to the Welsh Assembly only of secondary legislative competence: Government of Wales Act 1998, Ptn.

56. See Northern Ireland Act 1998, s 5(6)Google ScholarPubMed.

57. Blackburn v A-G [1971] 1 WLR 1037 at 1040.

58. R Brazier ‘The Constitution of the United Kingdom’ [1999] CLJ 96 at 102–103.

59. [1979] 3 All ER 325 at 334.

60. Case 6/64 Costa v ENEL [1964] ECR 585 at 594.

61. Thoburn v Sunderland City Council [2002] EWHC 195 [2002] 1 CMLR 50 at [59].

62. T R S Allan ‘The Limits of Parliamentary Sovereignty’ [1985] PL 614 at 618.

63. Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2002] 1 CMLR SO at [59].

64. Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2002] 1 CMLR SO at [60]-[67].

65. For purposes of concision, the following discussion focuses upon Scottish devolution; however, the general conclusions apply also to the other devolution schemes.

66. Scotland Act 1998, ss 28–30.

67. Reserved matters are listed in Sch 5, and s 29(2)(b) provides that Scottish legislation on such matters is ultra vires.

68. The term ‘devolved matters’ is not a term of art within the scheme of the Scotland Act 1998, but it is used here to refer to those matters, not being reserved matters, over which the Scottish Parliament has competence.

69. Brazier, n 58 above, at 103.

70. Indeed in Thoburn v Sunderland City Council [2002] EWHC 195 [2002] 1 CMLR 50 at [62] Laws W suggested that it enjoys such status in legal terms, to the extent that it is exempt from the doctrine of implied repeal.

71. The significance of this qualification is explained below.

72. Reference re Amendment of the Constitution of Canada (Nos 1, 2 and 3) (1982) 125 DLR (3d) 1 at 84.

73. See below for discussion of the Sewel Convention.

74. Perhaps the best existing example of convention reconciling theory with reality relates to the monarch, whose formal, legal status and powers bear little relation to the practical position which the monarch is seen to occupy once constitutional law is overlaid by convention.

75. G Marshall Constitutional Conventions (Oxford: Clarendon Press, 1984) p 8.

76. Direct rule was instituted by the Northern Ireland (Temporary Provisions) Act 1972.

77. Government of Ireland Act 1920, s 75.

78. Calvert, H Constitutional Law in Northern Ireland: A Study in Regional Government (London: Stevens, 1968) pp 91–92.Google Scholar

79. Calvert, n 78 above, p 92.

80. See eg Health and Social Care Act 2001, parts of which (by virtue of s 70(6)) apply to Scotland, notwithstanding that health and social care are devolved matters.

81. Hood Phillips, O Constitutional and Administrative Law (London: Sweet and Maxwell, 8th edn, 2001) p 136.Google Scholar

82. Sir Ivor Jennings The Law and the Constitution (London: University of London Press, 5th edn, 1959) p 136.

83. J Jaconelli ‘The Nature of Constitutional Convention’ (1999) 19 LS 24 at 28–29.

84. Hart, H L A, The Concept of Law (Oxford: Clarendon Press, 1961).Google Scholar

85. Jaconelli, n 83 above, at 30.

86. 592 HL Official Report (5th series) col 791, 21 July 1998.

87. 608 HL Official Report (5th series) col 1701, 27 January 2000.

88. Note, however, that concordats may provide a basis for judicial review, particularly on the ground of legitimate expectations. See R Rawlings ‘Concordats of the Constitution’ (2000) 116 LQR 257 at 282–284.

89. Rawlings, n 88 above, at 258–259.

90. Memorandum of Understanding and Supplementary Agreements (Cm 4444, 1999).

91. The presence of this qualification is consistent with Calvert's analysis, discussed above, of the constitutional propriety of UK legislation on transferred matters within the competence of the (now defunct) Northern Ireland Parliament.

92. Above, n 90, at 5.

93. D Lewis Convention: A Philosophical Study (Harvard: Harvard University Press, 1969) p 88.

94. Jaconelli, n 83 above, at 42.

95. Dicey, n 2 above, p 211.

96. Reference re Amendment of the Constitution of Canada (Nos 1–2 and 3) (1982) 125 DLR (3d) 1. The case is considered above.

97. For a detailed critique of the tendency sharply to distinguish law and convention, see Allan (1993), n 5 above, ch 10.

98. Many prerogative powers, for instance, raise non-justiciable issues, but that does not (at least any longer) lead to a blanket prohibition on adjudicating on prerogative power.

99. See eg Bradley, A W and Ewing, K D Constitutional and Administrative Law (London: Longman, 12th edn, 1997) pp 20–31 Google Scholar, in which the emphasis is generally (albeit not exclusively) on enumerating conventions as obligations.

100. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

101. R v Lord Chancellor, exp Witham [1998] QB 575.

102. Derbyshire County Council v Times Newspapers [1993] AC 534.

103. R v Secretary of State for the Home Department, exp Simms [2000] 2 AC 115.

104. R v Secretary of State for the Home Department, exp Fire Brigades Union [1995] 2 AC 513.

105. Rv Secretary of State for the Home Department, exp Brind [1991] 1 AC 696; R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 WLR 1622.

106. Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644 per Lord Diplock.

107. Re M [1994] 1 AC 377 at 425–426 per Lord Woolf.

108. Boddington v British Transport Police [1999] 2 AC 143.

109. See Elliott, n 10 above, ch 4.

110. Allan (1993), n 5 above, p 240.

111. For an example of convention giving rise to a principle of statutory construction, see Copyright Owners Reproduction Society v EM1 (Australia) (1958) 100 CLR 597.

112. See eg the cases cited at nn 100–101 above on access to justice.

113. Thoburn v Sunderland City Council [2002] EWHC 195, [2002] 1 CMLR 50 at [60]-[67].

114. Thoburn v Sunderland City Council [2002] EWHC 195, [2002] 1 CMLR 50 at [60]-[67].

115. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

116. R v Secretary of State for the Home Department, ex p Leech [1994] QB 198.

117. R v Lord Chancellor, exp Witham [1998] QB 575.

118. R v Secretary of State for the Home Department, exp Pierson [1998] AC 539.

119. Rv Secretary of State for the Home Department, exp Simms [2000] 2 AC 115.

120. Compare the views of Laws Jin Rv Lord Chancellor, exp Witham [1998] QB 575 at 585–586 with those of Lord Browne-Wilkinson in R v Secretary of State for the Home Department, exp Pierson [1998] AC 539 at 575.

121. See generally M Fordham and T de la Mare ‘Anxious Scrutiny, the Principle of Legality and the Human Rights Act’ [2000] JR 40.

122. This point is developed by Lords Bingham and Cooke in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 WLR 1622.

123. See eg R v Secretary of State for the Home Department, exp Pierson [1998] AC 539 at 587 per Lord Steyn: ‘Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption.’

124. See also s 29(3), according to which the question whether a Scottish provision relates to a reserved matter is to be determined ‘by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances’.

125. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

126. See eg Salomon v Commissioners of Customs and Excise [1967] 2 QB 116.

127. H W R Wade ‘The Basis of Legal Sovereignty’ [1995] CLJ 172.

128. For an overview of such criticisms, see Elliott, n 10 above, ch 3.

129. For an example of this approach, see Allan (1993). n 5 above, ch 11. A number of judges (speaking extra-curially) have also supported this view. For extra-judicial discussion of this point, see nn 6–9 above.

130. ‘Law and Democracy’ [1995] PL 72 at 87.

131. Of course, this was not always so, given that Parliament's legislative authority’ significantly pre-dates the emergence of any form of representative democracy. But this is without prejudice to the fact that Parliament's legitimacy is now almost universally regarded as deriving from its democratic mandate. The emergence of democracy, and its recognition as the source of the legitimacy of state (including legislative) power, reflects a constitutional resettlement whose typology is inevitably informal and evolutive, given the nature of the British constitution.

132. [2002] EWHC 195 (Admin), [2002] 1 CMLR 50.

133. [2002] EWHC 195 (Admin), [2002] 1 CMLR 50 at [59].

134. [2002] EWHC 195 (Admin), [2002] 1 CMLR 50 at [60].

135. [2002] EWHC 195 (Admin), [2002] 1 CMLR 50 at [62].

136. See eg R v Lord Chancellor, exp Witham [1998] QB 575.

137. Wade, n 127 above, at 189.

138. Sir John Laws ‘Illegality: The Problem of Jurisdiction’ in Supperstone, M and Goudie, J (eds) Judicial Review (London: Butterworths, 2nd edn, 1997) p 4.17 (emphasis added).Google Scholar

139. Lord Woolf, n 6 above, at 69.

140. Indeed, even the more modest claims which judges have (extra-curially) made to date have attracted such charges: see Lord Irvine' Judges and Decision-Makers: The Theory and Practice of Wednesbury Review' [1996] PL 59 at 75–78.

141. Such political practice is already manifestly apparent vis-à-vis the legislative behaviour of political actors in London as far as their actions impact upon Scottish devolved matters. Under the Sewel Convention, described above, it is now standard practice that Scottish consent is sought before the introduction of legislation concerning devolved issues. This practice is underscored by a written answer (626 HL official Report (5th series) written answers col 102, 16 July 2001) in which Lord McIntosh of Haringey explained that,’ Fifteen of the 25 Bills in the Queen's Speech include sigmficant measures that apply to Scotland’, going on to note the need to secure ‘Sewel consent’ in relation to the three Bills likely to impact upon Scottish devolved matters.

142. The primacy accorded to EU law in cases such as R v Secretary of Stare for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603 and R v Secretary of State for Employment, ex p Equal Opportunities Commission [1951] 1 AC 1 can be explained in similar terms: the judiciary has not imposed respect for directly effective EU law as a limit on Parliament's competence; rather, it has recognised that such a limit has organically emerged because, across government, there is a commitment to UK membership of the EU, with all which that entails.

143. It is no part of the present argument that all constitutional conventions can or should be regarded as limitations upon Parliament's competence. Rather, it is suggested that the weight accorded to the constitutional principles underlying certain conventions may be such that they are properly to be regarded as forming part of the foundation of principles upon which Parliament's legislative authority rests.

144. J Goldsworthy The Sovereignty of Parliament (Oxford Clarendon Press, 1999) p 240.

145. Wilson, G Cases and Materials on Constitutional and Administrative Law (Cambridge: Cambridge University Press, 2nd edn, 1976) p 226 Google Scholar (original emphasis).

146. It should be pointed out at this stage that the arguments set out in this paper are not inconsistent with the argument which I have put forward elsewhere on the ultra vires theory. I have argued that that theory is, and will remain, constitutionally essential unless and until it is accepted that the sovereignty principle is subject to such inroads as to deny Parliament the competence to grant discretionary powers free from an obligation to respect the principles of good administration. I have therefore argued that the necessity of the theory is not necessarily displaced by acceptance of a normative account of legislative authority, unless the substantive content of that account constrains Parliament's authority to the extent and in the manner just described. See Elliott, n 10, above, ch. 3 for detailed discussion of this issue.

147. It is not being suggested that convention necessarily points towards limitations on sovereignty, simply that conventions which relate to legislative practice, and which reflect fundamental constitutional values which operate as political limitations upon legislative action, may point in that direction.