Parliamentary Sovereignty, Rule of Law and Transnational Regulation: Which Reigns Supreme in the Constitutional Matrix of the United Kingdom?

Monday, April 24, 2017, 6:48 AM

Parliamentary Sovereignty, Rule of Law and Transnational Regulation: Which Reigns Supreme in the Constitutional Matrix of the United Kingdom?

                                                                                      [  Written by Taqbir Huda

                                                                                  email: <taqbirhuda@gmail.com> ]

I. INTRODUCTION

 

The distinguished theorist A.V. Dicey considered parliamentary sovereignty to be the prime constitutional principle of the British Constitution, which his other principle, the rule of law, was clearly subservient to[1]. In an age defined by an unprecedented rate of global integration, change in the legal and political arena was but an inevitable. While constitutional shifts resulting from such change are generally more intelligible in countries with written constitutions, the opposite applies to countries with uncodified constitutions, like the United Kingdom. Recently Danny Nicol, boldly asserted two things: firstly that parliamentary supremacy is no longer the British constitution’s most important feature, and secondly that transnational regulation has taken its place as the prime constitutional principle[2]. While he makes a commendable case for showing why this might be the case, it will be argued that this stance is only partially true. While it is certianly true that Parliamentary sovereignty has faced many inroads in the recent past, it is the rule of law, and not transnational regulation, which has taken its place as UK’s defining constitutional principle.

 The first section of this essay will assert that Parliamentary sovereignty in the orthodox sense has been essentially diminished by the dominance of transnational laws stemming from UK’s membership in the European Union (EU) and subsequent incorporation of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998 (HRA). This is why the first part of Nicol’s statement is true. The second section will look at how these supranational laws and other changes while weakening Parliamentary sovereignty, have in turn greatly empowered the rule of law to make it the most important feature of the British constitution. This is why the second part of Nicol’s statement is not true. Additionally, the last section will critically look at how a formal rule of law can be used to repeatedly undermine these transnational laws. This then reasserts why the rule of law (and not transnational regulation) forms the basis of the British constitution today.

II. DEATH OF ORTHODOX PARLIAMENTARY SOVEREIGNTY

(a) Understanding the Orthodox Concept of Parliamentary Sovereignty

England’s Glorious Revolution and the corresponding Bill of Rights (1689) which followed is essentially what gave birth to the notion of parliamentary sovereignty in the United Kingdom. Generally speaking, Dicey had two main components that made up his view of Parliamentary Sovereignty. Firstly, the Parliament can make or unmake any law it so desires except for a law which binds itself or future Parliaments. Secondly, the Acts of Parliament are immune from any kind of review by any other body. Hence if Parliament decides to enact a law to kill ‘all blue eyed babies’, as abhorrent and immoral as this law maybe, it is still perfectly valid in a strict legal sense. Thus all branches of state (such as the courts) would be bound to comply with it. It is precisely because of this unconstrained legislative power of the Parliament that historically Britain’s Constitution has been viewed as a political rather than a legal one. For any constraint on Parliament enacting unpalatable laws (such as one which makes it obligatory to kill all blue eyed babies) is for entirely political reasons, such as their desire to get re-elected. Thus the Constitution was seen as being politically (as opposed to being legally) entrenched. The arbitrary exercise of power allowed under this kind of absolutist Diceyan perception of Parliamentary Sovereignty is visibly problematic but was plainly adhered to by the courts in earlier cases. That Parliament cannot bind its successors gave rise to the doctrine of implied repeal which states that if any earlier Act of Parliament is in conflict with a later Act, it will be held to have been implicitly repealed in order to give effect to the latest will of the Parliament. This doctrine was historically considered to be so fundamental that it was seen as ‘impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal’[3]. This has been used to describe the nature of orthodox parliamentary sovereignty as being ‘continuing’, in that an earlier Parliament can do anything but bind its successor. This can be contrasted with ‘self-embracing’ parliamentary sovereignty, under which Parliament as a whole is sovereign enough to bind future Parliaments. Thus another important element of orthodox (Dicean) parliamentary sovereignty becomes clear: all Acts of Parliament are equal. So no Act of Parliament can receive any special legal protection as they are all equally capable of being repealed in the future.

(b) Effect of Transnational Law on Parliamentary Sovereignty

The view of ‘continuing’ Parliamentary sovereignty was widely held by the older generation of scholars such as William Wade[4], but has come increasingly at odds with modern day legislation which has in effect bound future Parliaments. This is especially true for the European Communities Act 1972 (which formally marked UK’s membership in the European Union) and Human Rights Act 1998 (which was the domestic incorporation of the European Convention of Human Rights) which limit the doctrine of implied repeal and hence the Diceyan ‘continuing sovereignty’ of Parliament. In Thoburn v Sunderland City Council[5] it was held that some ‘constitutional statutes’ hold greater weight than ordinary Acts of Parliament and hence are not subject to implied repeal, European Communities Act being one of them. Such a ‘constitutional statute’ can only be expressly repealed by Parliament and serves as a telling example of the first of many clear compromises on the orthodox conception of parliamentary sovereignty.

There are two key features of EU law as recognised in s2(1) of European Communities Act 1972 for the purposes of our essay: its direct effect and its supremacy over domestic law. Direct effect, as the name suggests, means that any law passed at the European level has immediate effect in domestic level for member states. While the EU does not have the jurisdiction to legislate on all matters concerning UK’s legal system, the specific areas in which it does have jurisdiction, it reigns supreme over domestic law. So if domestic laws conflict with EU laws in these areas, then the former is invalid. The supremacy of EU law was illustrated in the landmark case of Factortame II[6], which concerned the rights of a Spanish fishing company registered in the UK to access UK fishing stocks. The nationality and residence criteria introduced in Merchant Shipping Act 1988 in effect excluded companies like Factortame from fishing and was challenged in British courts as being contrary to EU law[7]. The European Court of Justice asked the House of Lords to grant an interim injunction by setting aside the conflicting sections of Merchant Shipping Act 1988 in question. While this seems to completely violate the Diceyan Parliamentary sovereignty, the Lords dealt with this monumental initiative in their typical incremental language. Lord Bridge stated that such an outcome in the event of conflict with Community Law had ‘always been clear’[8]. That a UK court could refuse to apply a validly passed Act of Parliament (that too relating to fishing matters) would almost seem unthinkable to Dicey and the like, is a simple truth the Lords cleverly ignored. Little wonder then that scholars such as Barbour labelled the outcome of Factortame to be the killing blow to Parliamentary sovereignty, which necessarily sent it to its afterlife[9].  

III. THE RULE OF LAW IN THE CONSTITUIONAL MATRIX

(a) Empowerment of the Rule of Law

It would indeed be very difficult to find a single politician or lawyer who would deny they are in some way, shape or form an advocate of the rule of law. The separation of powers was historically seen as having no significance in the UK constitution[10]. This is due to the traditional view of Westminster style Parliament as having unlimited lawmaking power, which is inherently contradictory to the doctrine of separation of powers itself. Thus separation of powers is best viewed as a means to an end rather than an end in itself[11]. It can be a strong constitutional tool for upholding the rule of law in practice, by preventing potential tyranny through the over-concentration of power in one branch of the state[12]. However, a major problem arises because the concept of rule of law and the implications that flow from it differ vastly depending on which of the two broad perceptions of it one adopts: formal or substantive[13]. A formal rule of law is primarily concerned with the manner in which laws are promulgated whereas a substantive rule of law goes further so as to setting normative thresholds on the content of the laws. Thus a tyrannical regime can be perfectly compatible with a formal rule of law as long as the enactment of its laws follows set procedures. Rather than thinking of them as being a binary distinction in the sense that the UK can attest to either one version or the other, it’s better to view the two as operating on a spectrum. The rule of law in UK can be more or less formal for some matters (national security and terrorism) and more or less substantive for others (discrimination in the workplace). The significant constitutional change by Constituional Reform Act 2005, provides the strongest evidence for the centrality of the rule of law in s1(a). It furthers the ideals of the separation of powers by creating a Supreme court as being the new highest court of the land in place of the abolished House of Lords which used to also be a chamber of the second legislative assembly. Additionally it separates out the varying functions of the Lord Chancellor who previously had the ‘dubious honour’ of being a member of the judiciary, legislative and executive[14]. This Act then illustrates not only how central the rule of law is to the British Constitution, but also how the increasingly important doctrine of separation of powers can be the means to upholding the rule of law.

(b) Rule of Law and Transnational Laws

The transnational laws themselves can also be seen as empowering the rule of law at the cost of Parliamentary sovereignty. EU law itself upholds the rule of law as one of its three fundamental pillars[15]. On the other hand, the HRA can be seen as a bold step towards a more substantive conception of the rule of law which ties in with that of Lord Bingham’s[16]. S3 HRA introduces an aspect of government according to rule of law into the British constitutional system as the Parliament has to actively and consciously legislate in a way that respects human rights. In Ghaidan v Godin-Mendoza[17] the courts used s.3 to ‘read’ in to the heterosexual language of the Rent Act (contrary to ECHR) to remedy the surviving member of a homosexual couple in clear contradiction to Parliament’s legislative intent. When it is impossible to interpret statute so as to give effect to ECHR, the court is empowered to make a declaration of incompatibility by virtue of s4 HRA. While this essentially has no legal effect and the decision lies with Parliament to do as it pleases, the reality is very different. Out of the 20 declarations of incompatibilities that were successfully made, Parliament has promptly reacted to all but one of them. This shows the level of political pressure the declarations create and very much like a strong form judicial review, essentially binds Parliament to submit to a substantive rule of law by respecting the ECHR.

(c) Rule of Law Emerges as the New Grundnorm

Despite the powerful role these transnational laws have played in diminishing orthodox Parliamentary sovereignty and upholding the rule of law, some instances show they stand no ground against the use of a formal rule of law. The judiciary has indicated that it would be bound to uphold an Act of Parliament which expressly intends to contravene EU law when such a time comes[18]. Thus while courts are clearly prepared to discard EU law on the basis of valid law (hence a formal rule of law) requiring them to do so. That the Conservative Patrty’s manifesto expressly states that the decision to leave the EU is in the hands of the UK citizens is also indicative of why ECA is constantly subject to the threat of repeal. So it is repeatedly considered possible for a dualist state such as the UK to contravene EU law which ideally should not be the case for laws that forms the grundnorm of any constitution.

(i) Human Rights Act

A string of HRA cases also show adherence to a rather formalistic rule of law which repeatedly undermined ECHR. The Belmarsh case[19] as followed by the control order cases[20] expose how Convention rights (right to liberty and fair trial) of minorities can fundamentally be undermined by the State irrespective of declarations of incompatibility[21]. This was done by Parliament enacting new legislation (one after another) to validate its reprehensible detention practices of ‘suspects’. The prisoner voting saga exposes more than a decade long of defiance by the UK to comply with ECHR rulings to remove the blanket ban on prisoner voting[22]. Additionally, recent years have seen “an increasingly authoritarian style of protest policing” in the UK, fundamentally undermining the right to protest[23] as confirmed by the ‘kettling’ cases[24]. Such minimalist approaches to Convention Rights as illustrated in the ‘control order’, prisoner voting and ‘kettling’ cases fundamentally undermine the status of ECHR as having constitutional significance in UK, issues which are conveniently left out of Nicol’s analysis[25]. While these instances may prima facie seem to uphold Parliamentary sovereignty against transnational regulation, as Lakin points out, Parliament exercises only those powers which are derived from valid laws as determined by the principle of legality encapsulated within a formal rule of law[26].
(ii) Attorney General v Jackson

In the seminal case of Attorney General v Jackson[27], despite accepting the validity of the Parliament Acts 1911 and 1949, which permit Bills to bypass the House of Lords to receive the Royal Assent, and affirming that these Acts permit Parliament to execute crucial constitutional changes, some revolutionary dicta in this case challenged the extent to which Parliament would be able to push these changes through the courts. The majority made it clear that any Act of Parliament that infringes the fundamentals of the rule of law (by failing to meet established legislative procedures or an Act abolishing judicial review) would be considered invalid. It is in this sense the principle of legality as encapsulated in a formal rule of law[28] is ‘the ultimate controlling factor on which our constitution is based’[29]. This is not to say the rule of law limits/qualifies or ranks above Parliamentary sovereignty; nor is it to choose between the two equally tenable concepts: it is to jettison the currency of this antiquated doctrine of sovereignty altogether[30]. Having established that Parliament derives its powers from law, there arises a normative reason to wipe out the concept of sovereignty from the British constitutional landscape[31]. Thus Parliament can only exercise power in accordance with the rule of law (however formalistic it may be), which is what justifies that power[32]. A formal rule of law can also be a means for the Judiciary to limit excessive Executive power. If ministers’ actions exceed the power conferred upon them by the Parliament (i.e. act ultra vires), courts will strike down that legislation because there is no legal basis of that power. Thus the principle of legality fortifies the hold of the rule of law even on the most powerful branch of State and hence elucidates its position as the key feature of our constitution. This is not to say the rule of law promotes the abuse of power by the judiciary. It will be careful not to overstep its boundaries for fear of retaliation. For even the judiciary’s institutional legitimacy can be the subject of substantial limitation through a valid Act of Parliament, and hence the rule of law itself.

IV. CONCLUSIONS

Three things have become clear over the course of this essay. First, the orthodox notion of Parliamentary sovereignty in the UK has been severely undermined by, inter alia, transnational regulations. Second, these transnational laws have played a chief role in empowering the rule of law and making it the modern grundnorm of the British constitution. Third, a formal rule of law can and has been used by the UK to repeatedly undermine transnational regulation. This coupled with the fact that the rule of law even has an overarching limiting influence on all three branches of State qualifies it, rather than transnational regulation, as the most important feature of the British constitution.

 

Bibliography:

Cases

A and others v Secretary of State for the Home Department [2004] UKHL 56

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 14

Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564

Cheney v Conn [1968] 1 AER 779

Edinburgh & Dalkeith Railway v Wauchope [1842] UKHL J12

Ellen Street Estates v Minister of Health [1934] 1 KB 590

Ghaidan v Godin-Mendoza 2004] UKHL 30

Hirst v UK (No. 2) (2006) 42 EHHR 41

HP Bulmer Ltd and Another v J Bollinger SA and Others [1974] EWCA Civ 14

Jackson v Attorney General [2005] UKHL 56

Madzimbamuto v Lardner Burke [1969] 1 AC 645

R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] 1 AC 603

Scopolla v Italy (No. 3)  [2013] 1 Costs LO 62

Secretary of State for the Home Department v AF [2007] UKHL 46

Secretary of State for the Home Department v E [2007] UKHL 47

Secretary of State for the Home Department v JJ [2007]

Secretary of State for the Home Department v MB and AF [2007]

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

Legislation

Anti-terrorism, Crime and Security Act 2001

Counter-Terrorism Act 2008

Counter Terrorism and Security Bill 2015

European Communities Act 1972

European Union Act 2011

Human Rights Act 1998

Hunting Act 2004

Merchant Shipping Act 1988

Parliament Act 1911

Parliament Act 1949

Prevention of Terrorism Act 2005

Rent Act 1977

Representation of the People Act 1983

Terrorism Act 2000

Terrorism Act 2006

Terrorism Prevention and Investigation Act 2011

The European Convention of Human Rights 1950

Weights and Measures Act 1985

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AV Dicey, Introduction to the Study of the Law of the Constitution (1885)

Elliot M and Thomas R, Public Law (2nd edn, OUP 2014)

Vernon B, The New British Constitution (Hart 2009), 271-290.

Journals/Articles

Alison Young, 'The Rule of Law in the United Kingdom: Formal or Substantive?' (2012) 6 International Constitutional Law 259

Danny Nicol, ‘Britain’s Transnational Constitution’ (2008) 61 Current Legal Problems 125.

Eric Barendt, ‘Separation of Powers and Constitutional Government’ (1995)

H.W.R. Wade, ‘The Basis of Legal Sovereignty’ (1955) 13 CLJ 172.

J. Murkens ‘The European Union Act 2011’ (2012) 3(4) Tijdschrift voor Constitutioneel Recht 396.

Joanna Gilmore, ‘Policing protest’ (2010) Criminal Justice Matters 82(1) 21.

Keith Ewing, ‘The continuing futility of the Human Rights Act’ (2008) Public Law 668.

N.W. Barber, 'The Afterlife of Parliamentary Sovereignty' (2011) 9 Int'l J Const L 144.

Peter Oliver, ‘Sovereignty in the Twenty-first Century’ (2003) 14 King's College L.J. 137, 149-154.

Stuart Lakin, ‘Debunking the idea of Parliamentary Sovereignty’ (2008) OJLS 28(4) 709.

Tom Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67.

Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev).

Vernon Bogdanor, The New British Constitution (Hart 2009), 271-290.