“I am very grateful to BPP Law School for giving me a forum to look at some current issue of political and legal interest. For this afternoon I have chosen the relationship between Parliament and the judiciary. “It is some 127 years since Dicey in his magisterial fashion gave us his definition of that relationship that might remove it from all controversy. He told us: The sovereignty of Parliament and the supremacy of the law of the land… may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of Parliament… favours the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise and thus increases the authority of Parliamentary sovereignty. “Today, however, new polemic has emerged on the subject. Some have argued that the sovereignty of parliament is being eroded and that the power of the judges is increasing to the point of their becoming the governors. “So, this is a question that no Parliamentarian, minister or judge can ignore entirely. We live in a world in which the old orthodoxies of Parliamentary sovereignty, the separation of powers, and the deference of the judiciary to the judgment of the executive are no longer accepted without question. Where, once, the suggestion that Parliament was not sovereign would have been considered heretical; now the possibility is raised in every textbook, and in judgments of members of our Appellate Courts.”Role of the Attorney General “As the Attorney General, my role places me close to the heart of these debates; and it may assist in illustrating why that is so, for me to give a brief outline of the role of the Attorney in our political and legal system. “In a nutshell, I have 3 main roles: first, as Chief Legal Adviser to the Crown; second, as the government minister responsible for superintending the Crown Prosecution Service, the Serious Fraud Office, and Her Majesty’s Crown Prosecution Service Inspectorate; and third as guardians of certain public interest functions which include, for example, the role of protector of charity and of the administration of justice. “So there are specific aspects of my work that give me a particular insight into the relationship between Parliament and the courts. “First, I am (like my predecessors) a member of Parliament - although some of my predecessors have been members of the House of Lords rather than, like me of the House of Commons. “I would add that I am a proud to be a Parliamentarian. As such, I believe in Parliament’s right to make law and to be the ultimate arbiter of political questions because it is the bearer of democratic legitimacy in our system, and I believe in the Parliamentary process and in Parliament as a forum for testing and improving our law and scrutinising government. “Second, as chief legal adviser to the Crown, I advise government departments on how policy can be achieved in a lawful and proper way; and the Solicitor General and I, together with the Advocate General for Scotland, have a specific role in the legislative process, considering each Bill as it approaches introduction for the same purpose. Ultimately the Law Officers (a term which includes all 3 of us) have the power to block a Bill if there are unresolved concerns about its legality or propriety. “Where possible, of course, the Law Officers endeavour to support the government and Parliament in achieving its legislative aims in a proper and lawful way; and much of our time is spent saying “have you thought about doing it this way?” which is what all good lawyers should do for their clients. It is not the role of the Law Officers to thwart government policy. “However that does not detract from the fact that in carrying out the function of legal adviser to the government, the Attorney General’s role is to support and protect the rule of law. I think that the role of the Attorney General as the Government’s Chief Legal Adviser was neatly summed up by a former Attorney General, Lord Mayhew of Twysden, who said: The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the government itself acts lawfully. “Third, some of my powers owe nothing to Parliament or government, and my involvement is to assist the courts in protecting the judicial process and strengthening the rule of law in this country. Let me just give 2 examples. “As guardian of the public interest, I have the power to intervene in legal proceedings in the public interest. For example, most recently in the sad Nicklinson case as to the law on assisted dying. I will also, from time to time assist the courts by acting as an impartial friend of the court, either in person or by appointing advocates to the court to help with questions of law. “And, in another distinct part of my role as guardian of the public interest, I have responsibility for bringing contempt of court proceedings. As part of this, I receive referrals from judges, the police and members of the public where it is thought that the conduct of some individual, company or organisation is prejudicing or impeding the fairness of court proceedings and the course of justice; and it is my responsibility to decide whether to bring an action to protect the court proceedings from such interference. “As a result of these varied functions, I have a role to play in Parliament, in government, in assisting the courts, and in defending the rule of law; and it is something of the fruits of this perspective which I hope to share with you today.”Outline “In doing this, I want to consider the following areas in which there is particular interaction between the roles of Parliament and our courts. They are: * the doctrine of Parliamentary sovereignty or Parliamentary supremacy itself * the role of the courts in relation to the application of principles in the European Convention on Human Rights and the Human Rights Act 1998 and how it impacts on the doctrine * the issues that have been raised recently about the nature and extent of Parliamentary privileges, and the exclusion of judicial oversight from Parliament’s internal activitiesParliamentary Sovereignty “Let me turn then to the doctrine of Parliamentary sovereignty. “Dicey regarded the legal supremacy of Parliament as the founding principle of the British constitution, and I agree. This talk cannot be the place to go into constitutional history. But it is worth bearing in mind that before the Glorious Revolution of 1688 and the Bill of Rights of 1689 there were jurists such as Lord Chief Justice Coke who raised the question of whether royal authority even exercised though Parliament might not be circumscribed. In the famous Dr Bonham’s case he commented that: in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void. “So I think that the language of ‘parliamentary supremacy’ or ‘parliamentary sovereignty’ can conjure images of unconstrained power which does not fairly reflect the reality, as Parliament might find to its cost if it really sought to do something which was either wholly tyrannical or plainly absurd and its problems might come from the people rather than the courts. What we are really referring to when we speak of Parliamentary supremacy is no more and no less than the present Parliament’s right to make or repeal any law, and the inability to prevent a future Parliament from doing the same. “That is a well established theoretical position, but it has consistently attracted critics; and so I want to consider a few of the ways in which it has been suggested that the courts of this country may apply and enforce legal limits on the sovereignty of Parliament. “Firstly, it has been suggested that the process of interpretation of legislation by the judiciary allows the courts effectively to limit the sovereignty of Parliament. It is my view that the courts do no such thing. I realise that this may go against the fashion (at least in certain parts of the media) for presenting the judiciary and Parliament as pitted against each other; but it is my sincerely held view that the courts interpret and apply the laws that Parliament makes faithfully and dispassionately. “The starting point for statutory interpretation today remains the literal interpretation of the text, and it is only if there is genuine ambiguity and uncertainty that extraneous material can be relied upon as a tool. There are, of course, interpretative tools such as the presumption against legislation having a retrospective effect, or ousting the ability of the courts to exercise judicial review of government actions. Such rules of interpretation are not however unique to statutory interpretation. The interpretation of private contracts is also performed with the assistance of such techniques. No one suggests this limits freedom to contract. “In my view these rules of interpretation demonstrate a fundamental respect for Parliament and its legislative role. They are founded on norms shared by Parliament and the courts as to how it will typically be fair for legislation to take effect, and the courts proceed on the assumption that Parliament acts in the interests of justice when it legislates. It also recognises the reality that however well Parliament legislates (and we have only ourselves to blame when we don’t) some interpretation may be needed. “Secondly, views are periodically expressed about the possibility that the courts could in the future identify constitutional principles so fundamental that legislation in breach of those principles would not be enforced by the courts, however Parliament expressed itself-a return to the ideas raised by Coke. “One example of this can certainly be seen in the House of Lords in the case of Jackson v Attorney General. In that case, Lord Steyn said that: …the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. “This is, of course, a doomsday scenario which is entirely hypothetical. These suggestions have not been tested in our courts because thankfully no court has ever suggested that an act of Parliament comes close to such a violation of principle. Ours is country with a long history of the legislature and judiciary co-existing peacefully and of governments and parliaments legislating with respect for individual rights and the rule of law. If it were to arise it would probably mean that our constitution was broken. “So, I am reluctant to agonise about theoretical future events which are so unlikely to arise: there is quite enough to be getting on with in the here and now. However, if pushed it would be my view that as long as the House of Commons remains a democratically elected assembly representative of the electorate it serves, the courts would have a duty to apply Parliament’s legislation, although judges might always exercise the right to resign. I have every confidence however that the voters of the United Kingdom and the process of Parliament will ensure that this is not a point on which I will ever be proved right or wrong. “In this regard, the recent Supreme Court case of AXA v Lord Advocate is instructive. The case was concerned with an Act of the Scottish Parliament which deemed the development of pleural plaques - an asbestos related condition - should be deemed an actionable personal injury. One of the issues was an application for judicial review of the legislation on the basis that it was unreasonable, irrational or arbitrary for the Scottish parliament to do this. In his judgment, Lord Hope referred to the debate regarding whether there is any limitation on the sovereignty of the United Kingdom Parliament in exceptional circumstances; and some commentators have suggested that this judgment raises important questions for the prospect of the courts judicially reviewing acts of the UK Parliament. That does not seem to me to be right. “There is no more critical distinction in the constitutional law of the United Kingdom than that between, on the one hand, laws made by a sovereign parliament (which the Parliament of the United Kingdom is) and laws made by a body to which decision making powers have been delegated by law, which is not sovereign. Lord Hope’s judgment draws this distinction with great care. He said: The Scottish Parliament does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes. “The determination that decisions made by the Scottish Parliament may (in certain circumstances) be judicially reviewable followed from its differences from the UK Parliament, not from its similarities. “Thirdly, and perhaps most persistently, is the suggestion that the sovereignty of the Parliament of the United Kingdom has been curtailed by the legal doctrine of the ‘supremacy’ of EU law. “It is that the effect of the 1972 European Communities Act in our law is that our domestic courts may disapply legislation enacted by Parliament if it conflicts with EU law. This audience will no doubt be familiar with the case of Factortame (No. 2). “And it cannot be disputed that the disapplication of subsequent statute if it conflicts with the EU law incorporated under the 1972 and subsequent European Union Acts entails a refinement of the doctrine of Parliamentary sovereignty, at least to this extent: the European Communities Act is not itself impliedly repealed by any subsequent conflicting legislation. “However, I consider that it is clear that this is the limit of the extent of the constitutional consequences of European legislation in this country, and that the substantive sovereignty of Parliament has not been curtailed. Just as the foundation of the binding effect of European law is the will of our Sovereign Parliament, so too it is equally clear in our law that the European Communities Act did not alter the existing legal principle that what Parliament did in incorporating European law, Parliament can also undo. “A clear statement of the true position was given by the Divisional Court in the case of Thoburn v Sunderland City Council, known as the ‘Metric Martyrs’ case. In that case, it was suggested that EU law had somehow become so ingrained in our legal system that, even if the European Communities Act 1972 were repealed, our domestic courts would still be bound to give primacy to EU law over legislation enacted by Parliament. That is not the case, as Lord Justice Laws explained: Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the 1972 Act. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the 1972 Act which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. “It is this, the position at common law, which has now been restated by section 18 of the European Union Act 2011, introduced by the present government. That provision states that:
Posted on: Mon, 03 Feb 2014 03:02:23 +0000
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