April 14, 2011 2

Who is the master? Courts or Parliament?

By Leon Glenister in Human Rights Act

Lord Neuberger asks 'Who is the Master?'

Parliamentary sovereignty, the principle Parliament can make or unmake any law it chooses, is a bedrock principle in the British constitutional system. But what if Parliament chooses to pass a law dissolving marriages between blacks and whites? Or a law that confiscated the property of all red haired women? Can the court overrule such unjustifiable, unfair and irrational statutes?

Lord Neuberger, Master of the Rolls, last Monday gave the Weedon Lecture advocating the principle of absolute Parliamentary sovereignty. The speech is available here, a summary here and a commentary by Adam Wagner here, so I will not elaborate on what was said. Whilst his argument is true to the extent that absolute Parliamentary sovereignty does remain intact, this has to be understood against the constitutional landscape. And that landscape is one which is increasingly rights-based, which has an effect on what Parliament does.

There is no doubt Parliamentary sovereignty remains intact. Judges have generally expressed support for it. Lord Neuberger gives examples in his speech, and his words themselves are a further example of judges endorsing it. Indeed, I understand Lord Justice Laws, a key proponent of the view that Parliamentary sovereignty may be limited by a higher order law, retracted that view at the ALBA Conference 2008 (though I have not personally found a transcript of this).

A convincing understanding of Parliamentary sovereignty comes from Jeff Goldsworthy who claims it exists because of a consensus between judges, Parliament and the government that it should. It, therefore, can only change where this consensus agrees that it should change. This has not occurred.

However, despite Parliamentary sovereignty theoretically remaining, there is no doubt it exists in a changing constitutional culture, where rights are taking an increasing hold. This is most notable in the Human Rights Act.

Under this Act, any legislation passed by Parliament must be accompanied by a statement from a Minister that the Bill either complies or does not comply with the European Convention of Human Rights (ECHR). Whilst the provision does not limit Parliament’s discretion to pass any legislation, it draws attention if the legislation does not comply with the ECHR. Indeed, only one statute has passed where a statement was given that its contents were not compatible with the ECHR; even then, the government went to lengths to satisfy the Joint Committee on Human Rights the bill was legitimate.

The Act also allows the court to issue a declaration that any law is incompatible with the ECHR. This is, notably, not a power to strike down and declare legislation void, rather a power to issue a statement that the law does not meet ECHR standards. But the cultural effect of this provision is clear. As of 2009 (I could not find a later data compilation), seventeen declarations had become final. Of these fourteen were remedied, for two there is consideration of remedial methods and for one there is public consultation underway. It seems unlikely Parliament would lightly challenge a declaration of incompatibility.

The provisions, of course, allow Parliament to pass any legislation without fear the courts will strike it down, and in any event Parliament may repeal the Human Rights Act removing these provisions altogether. However there is certainly a trend towards a rights-based constitution, and Parliament would most likely struggle to pass anti-rights law.

Away from the Human Rights Act, the common law has had an increasing rights culture. For example in Simms, Lord Hoffmann stated that individual rights may only be limited by Parliament with “express words”. The courts are reluctant to find Parliament has limited rights.

The real test for Parliamentary sovereignty only arises where Parliament passes a morally abhorrent, unjustifiable and completely irrational law, like the examples given at the outset. Until that time, which probably will never happen, the question over who really is the master will remain unanswered. Oh, the uncertainties of an unwritten Constitution!

2 Responses to “Who is the master? Courts or Parliament?”

  1. C Harding says:

    Parliamentary sovereignty is one of the worst legal concepts ever, basically gives a bunch of people who think they know better than the average citizen and will do anything to score a few political points and fleece the tax payer for all the expenses they can, unlimited power.

    These have been shown as mistakes again and again look the knee jerk reactions which have led to ridiculous gun control and police powers under the terrorism act.

    • A Ramirez Canessa says:

      I’m not sure it is fair to describe Parliamentary sovereignty in such harsh terms. I understand your point regarding mid-term “knee jerk reactions” by Parliament, but we are fortunate enough to elect our politicians. If Governments pass legislation we find abhorrent we have the privilege and the duty to hold them to account at general election time.

      We are also extremely fortunate to have a separation of powers; a strong and essential pillar of which is the courts. Supported by the HRA, judges can declare legislation incompatible with the ECHR forcing Parliament to go back to the drawing board. Of course, based upon the basic principle of PS they don’t “have to” and of course any right-wing human-rights fearing government can (and I greatly fear may) repeal the HRA at any time.

      It is always worth considering the flip side of the argument. Would like judges to have the power to “strike down” legislation as they do in the US? But wouldn’t you find that even more limiting in terms of due democratic process? Would you prefer a scenario where Judges (fine, upstanding men and woman though they are…) would be able to block the effects of legislation which you and the majority of the country elected their Government to pass?

      The beauty of PS is that it is the people who ultimately hold parliament to account and so it is the people who are ultimately in charge. I hope the people would (or will…) be very suspicious of any move by Government to curtail the powers of the courts.