Book chapter: The principle of parliamentary sovereignty in legal, constitutional and political perspective

I have just finished work on a book chapter entitled “The Principle of Parliamentary Sovereignty in Legal, Constitutional and Political Perspective”, the abstract for which is as follows:

Parliamentary sovereignty has long been regarded — by most, at least — as an axiomatic feature of the United Kingdom’s constitutional arrangements. The orthodox view holds that the UK Parliament has authority that is unlimited in domestic law, meaning that it is legally free to enact any legislation it wishes. However, precisely what parliamentary sovereignty means — and, ultimately, whether it accurately describes the reality of Parliament’s relationship with other institutions — is a less cut-and-dried matter than orthodox accounts may suggest. This chapter examines the sovereignty of Parliament by reference to phenomena that may be considered to sit uncomfortably with it. In particular, devolution, British membership of the European Union, the UK’s being a party to the European Convention on Human Rights and common-law constitutional principles are addressed. The implications for parliamentary sovereignty of these matters are examined not only in legal, but also constitutional and political, perspective. The conclusion is reached that different pictures are revealed when legal and other lenses are applied, and that whether — and, if so, to what extent —political and constitutional forms of constraint may sound in the legal realm is inherently uncertain. Such uncertainty concerning the extent of Parliament’s legislative authority reflects a necessary tension between the judicial and political branches, the unresolved nature of that tension evidencing a form of institutional comity that is imperative to the functioning of an unwritten constitutional system.

The chapter will appear in the eighth edition of Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide (eds), The Changing Constitution. The book will be published by Oxford University Press in 2015.

Lord Reed on EU law and the UK constitution

A brief post to draw attention to Lord Reed’s recent Sir Thomas More Lecture entitled “EU Law and the Supreme Court”. Lord Reed devotes part of the lecture to a discussion of the Supreme Court’s decision in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324. Three points are particularly noteworthy.

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Human rights, proportionality and the judicial function: R (Carlile) v Home Secretary in the Supreme Court

The Supreme Court’s judgment in R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60 (press summary) (judgment) raises some interesting and significant points about the role of the courts when applying the proportionality test in cases concerning interferences with qualified human rights. The central question was whether the Home Secretary had breached the right to freedom of expression in Article 10 of the European Convention on Human Rights. The allegation that she had done so stemmed from her decision to refuse to allow Maryam Rajavi — a “dissident Iranian politician” who had close links to a group that used to be proscribed in the UK under the Terrorism Act 2000 — to enter the UK in order to address British parliamentarians.

The Home Secretary sought to justify this decision on the ground that Rajavi’s presence in the UK would “not be conducive to the public good for reasons of foreign policy and in the light of the need to take a firm stance against terrorism”. More specifically, the Home Secretary argued that permitting Rajavi to enter the UK would be perceived as a “deliberate political move against Iran” by its government; this, it was said, risked destabilising relations between the UK and Iran which, in turn, would be detrimental to the effective conduct of foreign policy and the advancement of UK national-security interests. The Supreme Court held by a 4-1 majority that the Home Secretary’s decision was lawful.

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What a (for now failed) attempt to curb judicial review tells us about the UK’s constitution

Over the last couple of weeks, I have been teaching new Constitutional Law students in Cambridge about the fundamental, architectural aspects of the UK constitution, including the rule of law, the separation of powers and the sovereignty of Parliament. The House of Lords’ rejection earlier this week of parts of a Government Bill that aimed restrict the availability of judicial review of executive action is an excellent example of the way in which these principles interact.

Part 4 of the Criminal Justice and Courts Bill, in the form in which it was approved by the House of Commons, would have made it more difficult, in certain circumstances, for courts to scrutinse government action in order to determine its lawfulness. I have written before (here and here) about some of the intended limitations, and there is an excellent summary of this week’s House of Lords debate, and analysis of its implications, on the UK Human Rights Blog. However, it is the fact that the government and House of Commons have sought to introduce significant limitations upon judicial review, rather than the precise nature or effect those limitations, with which I am concerned in this post. I argue that this episode illuminates three key issues relating to the UK constitution.

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Sark-aerial

Beyond Sark: The implications of the Barclay case

Although at one level astonishingly complex, the issues at stake in R (Barclay) v Secretary of State for Justice (No 2) [2014] UKSC 54 (press summary) (judgment) can be stated relatively simply for the purpose of seeking to understand its broader significance. Article 6 of the European Convention on Human Rights requires, among other things, judicial independence and impartiality. In Barclay (No 2), it was argued that the office of Chief Judge of Sark, one of the Channel Islands, failed to comply with Article 6.

Recently enacted local legislation, making provision in relation to the office of Chief Judge, formed the subject-matter of the challenge. Predecessor legislation had already been considered in earlier litigation (culminating in R (Barclay) v Secretary of State for Justice (No 1) [2009] UKSC 9). The challenge to the new legislation failed in the UK Supreme Court, not on the ground that the human-rights argument was without merit, but because the question should have been resolved by local courts rather than by the courts of England and Wales or by the UK Supreme Court. It would be inappropriate, the Supreme Court held, for UK courts (a term that will be used to include both the courts of England and Wales and the UK Supreme Court) to address this matter in Barclay (No 2), and it had been wrong for them to do so in Barclay (No 1).

These issues may appear to be highly technical and of little relevance beyond the specific context of the Channel Islands. However, the significance of the Barclay judgment is considerably greater than that. This post will explain and comment on the two key issues that arose in Barclay (No 2) — namely, whether UK courts had jurisdiction to consider the matter; and, if they did, whether they should have exercised such jurisdiction.

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Parliament

1,000 words: Parliamentary sovereignty

On the surface, at least, parliamentary sovereignty — a phenomenon that applies to the UK, or Westminster, Parliament, but not to the UK’s devolved legislatures — is a simple concept. To paraphrase Dicey, Parliament has the legal authority to enact, amend or repeal any law, and no-one has the legal authority to stop it from doing so. But this notion is as extravagant as it is simple: it means, as Stephen famously put it, that a law directing the killing of all blue-eyed babies would be valid. The fact that such laws remain unenacted is thanks to “political constitutionalism” as opposed to “legal constitutionalism”: it is political, not legal, factors — including, one hopes, legislators’ own sense of morality — that operate as the restraining force.

It is often assumed that the sovereignty of Parliament follows from the absence in the United Kingdom of a written constitution, the existence of such constitutions generally being associated with legislatures that have only limited powers. Within such legal systems, the written constitution usually performs two functions (which are in truth flip sides of one coin) that rule out anything like parliamentary sovereignty. The constitution confers authority on the legislature; and the constitution restricts the legislature’s authority (by omitting to confer the power to do certain things). Within this type of constitutional framework, the legislature only has those (limited) powers that the constitution grants: and if the legislature attempts to make laws beyond the powers granted to it, then (often) courts can intervene by quashing unconstitutional legislation (or simply refusing to apply it, on the ground that it is not really “law”).

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My analysis of the Conservative Party’s proposals for a British Bill of Rights

I wrote earlier this week about David Cameron’s announcement at the Conservative Party conference that a future Tory government would repeal the Human Rights Act 1998 and replace it with a British Bill of Rights. Cameron gave very little away in his speech, but more detailed proposals — although not yet a draft Bill — have now been published.

If implemented, the proposed changes — contained in a Conservative Party (not a Government) paper entitled Protecting Human Rights in the UK — would yield very significant changes. No mere rebranding exercise, the Conservatives’ Bill of Rights would significantly limit domestic courts’ powers relative to those they have under the Human Rights Act, and reshape — as a matter of domestic law — the influence of the European Convention on Human Rights.

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