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UK Parliamentary Sovereignty: the HRA and the EU PDF Print E-mail

THE IMPACT OF THE HUMAN RIGHTS ACT 1998 AND THE UNITED KINGDOM’S MEMBERSHIP OF THE EUROPEAN UNION ON PARLIAMENTARY SOVEREIGNTY: A BRIEF OVERVIEW

 

 

From a constitutional perspective A V Dicey describes Parliamentary Sovereignty in The Law of the Constitution (1885) as encompassing the following characteristics:

 

  1. Parliament is the supreme law making body and competent to legislate on any subject matter;
  2. No subsequent Parliament can be bound by its predecessor;
  3. Once Parliament has legislated by due process, no court or other authority can question the validity of that legislation.

 

For the purposes of the question let us examine the incorporation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) into English Law and its impact on the doctrine of Parliamentary Sovereignty.

 

Prior to the Human Rights Act 1998 (HRA), in the absence of a written constitution and a Bill of Rights in the United Kingdom claims for breach of the ECHR had to be taken to the European Court of Human Rights because the ECHR was not given effect to in English Law. With the enactment of the HRA that came into effect on 3 October 2001, United Kingdom domestic courts can now directly apply those Articles of the ECHR as contained in Schedule 1 of the HRA against public authorities including the right to freedom of expression (Article 10), prohibition of torture (Article 3) and the right to liberty and right to freedom from discrimination (Article 5 and 14). With some rights being qualified, Protocols have been added to include right to education and the right to take part in free elections by secret ballot.

 

By virtue of s 6 (1) of the HRA, Articles of the ECHR are only binding against public authorities to include ‘core’ public authorities such as government departments and local authorities within the meaning of s 6(3)(a) of the HRA, as well as, bodies exercising functions of a public nature as provided by s 6(3)(b) of the same Act.

 

Section 3(1) of the HRA provides that ‘as far as possible’ both primary and secondary legislation must be interpreted and given effect in a way that is compatible with Convention rights. Section 4 of the same Act provides that if a court is satisfied a provision of primary legislation is incompatible with a Convention right, that court (High Court or above) may make a ‘declaration of incompatibility’. If such a declaration is made then under s 10 of the HRA a statutory instrument can be used under the fast track procedure to amend the legislation bringing it in line with the ECHR. Such a statutory instrument must be brought before Parliament for its approval. One may argue that to make declarations of incompatibility subtly alters the allocation of power between the elected legislature and an un-elected judiciary. Judges, albeit under authority provided by the HRA can now point to Parliament that legislation is not compatible with the ECHR undermining the doctrine of parliamentary sovereignty. Having said that, by virtue of s 4(6)(a) of the HRA such a declaration does not affect the validity, continuing operation or enforcement of the statutory provision in respect of which the declaration of incompatibility is given. Again, s 6 (2)(a)(b) of the same Act provides that if a court cannot construe a provision of primary legislation compatible with the HRA because primary legislation compels it not to construe otherwise, then notwithstanding the incompatibility the court must give effect to the inconsistent provision. The United Kingdom courts accordingly do not have the power, even under the HRA, to strike down an Act of Parliament that they deem incompatible with Convention rights. All they may do is declare the incompatibility. It is then a matter for Parliament to decide whether it wishes to continue with the legislation, to amend it or to replace it.

 

An important case in which the HRA was used to promote individual liberty was the House of Lords decision in A v Secretary of State for the Home Department (2004). By a majority of eight to one, it held that the power contained in the Anti-terrorism, Crime and Security Act 2001 to detain suspected international terrorist indefinitely without charge was incompatible with Articles 5 and 14 of the ECHR (respectively, the right to liberty, and the right to freedom from discrimination). However, the contravening provisions were subsequently repealed by the Prevention of Terrorism Act 2005, which despite replacing the impugned power to detain it did so with a new regime of control orders that may be imposed by the government not only on foreign nationals but also on British nationals. This case illustrates how a declaration of incompatibility was subsequently amended by legislation.

 

In theory, a subsequent Act of Parliament can repeal the HRA that gives effect to the ECHR. The HRA does not enjoy the status of higher law. The present government has gone on record of expressing its intention of scrapping the HRA and replacing it with a Bill of Rights. How far this will be implemented remains to be seen. Consequently, in light of the above the doctrine of Parliamentary Sovereignty has not been affected by the incorporation of the ECHR into UK law in the form of the HRA.

 

Pertinent to considering the impact of the United Kingdom’s membership of the European Union on the doctrine of Parliamentary Sovereignty it is important to consider the status of EU law with respect to national legislation of Member States.

 

In a series of rulings illustrated below the European Court of Justice (ECJ) has developed the doctrine of supremacy of EU law over national law.

 

This was first established in Van Gend en Loos v Netherlande Administratie der Belastingen (1963) where the ECJ held that it had the right to decide whether Community law or national law prevails. Subsequently in Costa v Enel (1964) the ECJ held that Community law would not be overridden by inconsistent domestic legal provisions regardless of whether those provisions were enacted prior to or subsequent to the Community Treaties coming into force in Member States. Here the ECJ at the outset reaffirmed its decision in Van Gend en Loos that the Community Treaties had created a new legal order in the form of the Community, for the benefit of which Member States had limited their sovereign rights, albeit within limited fields. On a related note in Internationale Handelsgesellschaft mbH (1970) it was held by the ECJ that the validity of a Community measure or its effect within a Member State could not be affected by allegations that it runs counter to fundamental constitutional rights of a Member State or principles of a national constitutional structure. In Marshall v Southampton and SW Hampshire AHA (1986) the ECJ held that in an action against the state, private individuals could rely on a Directive capable of direct effect that had not been implemented. While in Francovich v Italy (1991) it was held that an individual could claim compensation from the state for its failure to implement a Directive. Subsequent to Francovich, the ECJ in Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport ex parte Factortame (Factortame III) 1996 held that all manner of breaches of Community law by all three arms of state could lead to liability to individuals with the state being liable to compensate for breaches of EU law for financial loss suffered.

 

The issue of supremacy was demonstrated more starkly in the Factortame cases No.1 and No.2, where the ECJ held that the UK could not enforce the Merchant Shipping Act 1988 as it contravened the Treaty of Rome on principles of non-discrimination.

 

The English courts have tried hard to reconcile the principle of supremacy of Community law with that of the UK doctrine of Parliamentary Sovereignty as propounded by A V Dicey. Indeed the courts have had to juggle the constitutional conventions of implied repeal and the principle that no Parliament can bind it successors with the principle of Community Supremacy. By virtue of the European Communities Act 1972, that formed the basis of UK membership into the European Community, and which incorporated all existing Community law at that date into UK law there was little doubt that Community law prevailed over inconsistent pre 1972 UK legislation. The doctrine of Parliamentary Sovereignty would clearly require, by virtue of the doctrine of implied repeal, that subsequent UK legislation should override the European Communities Act 1972 which in the absence of a codified constitution has the status of an ordinary Act of Parliament.

 

Before going on to discuss the UK courts approach let us look at the European Communities Act 1972 in a bit more detail. As a dualist State without a codified constitution the status of Community law in the UK derives from the European Communities Act 1972. This Act as amended makes all Community law provisions that are directly effective part of UK law. Section 2(2) of the above Act provides for the implementation of Community law by means of subordinate legislation. While ss 2(4) and 3(1) of the same Act in effect acknowledge the supremacy of Community law by providing that national courts must interpret national laws so as to give effect to provisions of Community law and in accordance with the principle laid down by any relevant decisions of the ECJ.

 

We can now examine the approach the UK courts have adopted on the issue of Community Supremacy. In Macarthys Ltd v Smith (1979) the Court of Appeal was prepared, on the basis of s 2(4) of the European Communities Act 1972 to give EU law priority. The House of Lord adopted the ‘rule of construction’ approach to s 2(4) in Garland v British Rail Engineering Ltd (1983). On this basis Lord Denning in Shields v E Coomes (Holdings) Ltd was prepared to embrace the principle of Community supremacy. In Pickstone v Freemans plc (1989) the House of Lords interpreted UK legislation against its literal meaning in order to achieve a result compatible with EC law. In Factortame (No. 2) 1991, the House of Lords gave ‘priority’ to EC law disapplying Part II of the Merchant Shipping Act 1988.

 

It is apparent from the above that UK courts, led by the House of Lords (now the Supreme Court) have shown a clear willingness to accord supremacy to directly effective Community law, be it using rules of construction or applying Community law directly in priority to UK national law. However, Lord Denning in Macarthys Ltd v Smith (1979) and Lord Diplock in Garland v British Railway Engineering Ltd (1983) made it clear that if Parliament were expressly to attempt to repudiate its Community obligations then UK courts would be obliged to give effect to Parliament’s wishes. While Lord Bridge in Factortame (No. 2) in addressing criticisms of the House of Lords readiness to accept the principle of supremacy of Community law observed that if the supremacy within the European Community of Community law over national law of Member States was not always inherent in the European Community Treaty, it was certainly well established in the jurisprudence of the Court of Justice long before the UK joined the Community. Therefore, whatever limitations of its sovereignty Parliament accepted when in enacted the European Communities Act 1972, it was entirely voluntary. Consequently, the courts have treated the 1972 Act as permission by Parliament to give precedence to Community laws in the realm of the United Kingdom’s European membership, it always being in Parliament’s power to repeal the 1972 Act.

 

 

Author’s Note:

 

Editor’s Note: The above article should serve as a revision aid only and should not deter further academic research nor serve as a substitute for textbooks.

 

Further Recommended Reading

 

  • T Collins and A Tomkins, British Government and the Constitution, (6th Edition, Cambridge University Press 2010)

 

  • M Ryan and S Foster, Unlocking Constitutional and Administrative Law, (1st Edition, Hodder Arnold 2007)

 

  • E Berry and S Hargreaves, European Union Law, (2nd Edition, Oxford University Press 2007)

 

  • H Barnett, Constitutional & Administrative Law, (4th Edition, Cavendish)

 

 

 

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