Monday, October 23, 2006

Parliamentary Sovereignty - Public Law

The reason that Parliament is sovereign (legislative supremacy) is a matter of fact is because the judges give it recognition. From a political perspective, sovereignty lies not in a law-making body (Parliament) but with the people. Legal sovereignty is dependent upon the acceptance of its authority by the people, who – if the legislature abuses its trust – may overthrow that authority and replace it.

In AV Dicey’s view, parliamentary sovereignty entails three principal aspects:

1. Parliament – the supreme law making body – may legislate on any subject matter.

2. No Parliament can be restricted by a predecessor or bound it’s successor.

3. Nobody, including the court, may question the validity of Acts of Parliament.

In theory, Parliament’s power remains absolute. To demonstrate the supremacy of Parliament, it can be seen that international laws cannot take legal effect within the law of UK unless brought into law by an Act of Parliament.

Until 1973, the only ‘law’ made by UK acting in agreement with other states was in the form of international treaties. As we have seen, treaties are incapable of creating rights or obligations enforceable in UK courts.

UK became a member of the European Communities in 1973. At such, the laws of the community together with the judicial decisions of the European Court are binding on all member states.

The acceptance of the Community Law was incorporated under the European Community Act 1972 – an Act of the UK Parliament. Accordingly, Community Law drives its forces and authority under this Act.

By the fact that Parliament had enacted an Act of Parliament directing the courts to comply with the Community Law, it clearly indicates that Parliament has been supreme.

However, membership of the community raises some unique questions of the sovereignty of Parliament. The principal issue for consideration is the attitude of the judges towards community law. From the perspective of the European Courts, Community Law prevails over domestic law and that UK legislatures have no power to enact binding legislation contrary to Community Law (s.2 ECA 1972)

As Community Law prevails over domestic law and that any Act of Parliament in UK shall be construed in conformance to Community Law, it can be argued that the Diceyan theory had been impaired.

Despite all appearance on the contrary, and the basis that UK voluntarily acceded to the European Community, the force of the Community Laws are derived from the ECA 1972 – an Act of Parliament of UK – sovereignty is thus prevailed.

In 1949, the council of Europe was established and the European Conventions of Human Rights (ECHR) was ratified by member States in 1951, coming into force in 1953. it was not until 1965 that UK government allowed its citizen to forward their petition on human rights to the ECHR. However, the courts regarded the convention as an aid to interpretation but has no jurisdiction directly to enforce the rights and freedoms under the convention. Accordingly, there existed (Pre-HRA 1998) no obligation on courts to rely on the convention if a source of authority could be found within domestic law.

In the Labour Party’s 1996’s general election manifesto, the party undertook to incorporate Convention rights. The manifesto declared to “Bring Rights Home – Labour’s plan to incorporate ECHR into UK law. The Human Rights Act finally came into force in October 2000. As a result, the ECHR rights and freedom have now become part of English domestic law by virtue of s. 1 of the 1998 Act.

Now, judges in interpreting statutes are required under s. 3(1) of the HRA 1998 to construe statute as far as possible to give effect to the rights as provided in the ECHR.

However, the HRA 1998 does not give the courts the power to set aside Acts of Parliament which are inconsistent with Convention rights, but merely to allow certain courts to make declaration of incompatibility (s. 4 HRA 1998)

In R v A (2001), the House of Lords held that the statutory provision under s. 41 of the Youth Justice and Criminal Evidence Act 1999 were in conflict with Convention rights under Article 6 (Rights to a Fair Trial). S. 3 HRA 1998 places a duty on the court to strive to find a possible interpretation compatible with Convention rights.

Where the courts are unable to interpret statutes in a manner which makes them compatible with Convention rights, a declaration of incompatibility under s. 4 HRA 1998 may be issued. This puts the government and Parliament ‘on notice’ that the statute requires amendment (R (Anderson ) v Secretary of State for Home Dept (2002) HL)

In conclusion, judges are seen to be more freer in their approach to interpret statutes. As shown in the case of R v A (No.2), Lord Steyn enunciated that a declaration of incompatibility under s. 4 HRA 1998 is only a measure of last resort.

Similarly, in R v Lambert (2001), Lord Steyn said: “It is clear that the 1998 Act must be given its full impact and that long or well entrenched ideas may have to be set aside; sacred cows culled.”


1 comment:

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