Lars Puvogel I. Introduction

IV. The Status of the Doctrine in the United Kingdom

As has been indicated above the doctrine of parliamentary sovereignty has not only been thought to describe the power of Parliament and its relationship to the courts in New Zealand. Of course it is beyond the scope of this paper to examine the developments Dicey's propositions have taken in different countries and to assess their validity against the respective contemporary constitutional background.¹⁴⁹

However, as international comparisons can not only provide a powerful impetus for law reform but are also a useful device in interpreting or understanding domestic rules and laws, a brief survey of the development of the doctrine of parliamentary sovereignty in its country of origin, the United Kingdom, will be given.¹⁵⁰ The focus will be on two relatively recent developments: the United Kingdom's accession to the European Communities in 1972 and the enactment of the Human Rights Act 1998.

The Impact of European Community Law on the Doctrine of Sovereignty

The United Kingdom acceded to the European Community by the Treaty of Brussels 1972 notwithstanding that the Community legal order is plainly inconsistent with the doctrine of sovereignty of Parliament. Whereas Dicey asserted that 'no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'¹⁵¹ Community law envisages that it prevails over any national law. This has been repeatedly emphasized by the European Court of Justice. In the Simmenthal¹⁵² case, the Court stated:

A national court which is called on within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means. ¹⁵³

Consequently, the role Community law envisages for the courts is far wider than under the Diceyan theory, requiring judges if necessary to disregard national laws - even if they take the form of an Act of Parliament - in order to give full effect to Community law.

The Treaty was implemented in the United Kingdom by the European Community Act 1972. Section 2(1) gave effect to all Community rules that have direct application or direct effect within Member States. This applied both to existing and to future Community rules.¹⁵⁴ Hence, it was questionable what the position would be if an Act passed after 1972 were found to contain a provision that was impossible to reconcile with a rule of Community law. The key question was whether the courts -in accordance with orthodox Diceyan theory — would refer to the doctrine of implied repeal and give effect to that legislation or - in accordance with the European Court of Justice and the doctrine of the supremacy of Community law - would let Community law prevail.

Not surprisingly, however, the response of the British courts to the question showed a preference for resolving potential clashes and inconsistencies by interpretation, and they were reluctant to reach the sovereignty question.¹⁵⁵ Relying on s 2(4) as a rule of construction,¹⁵⁶ the courts took the view that where possible national legislation had to be interpreted and applied so that it did not conflict with Community law.¹⁵⁷

However, in the case of R v Secretary of State for Transport, ex parte Factortame Ltd¹⁵⁸ the question of what the courts should do if Parliament chose to legislate inconsistently with Community law eventually arose. Parliament had enacted the Merchant Shipping Act 1988 which introduced a new system of registration for British fishing vessels. To be entered on the register vessels had to be British owned. Spanish owners and operators whose vessels were registered under the old register argued that this requirement discriminated against them contrary to Community law. In judicial proceedings they sought an order restraining the Secretary of State from enforcing the Act against them pending a ruling on its compatibility with Community law by the European Court of Justice. The House of Lords held that as a matter of national law the courts had no power to suspend the effect of an Act of Parliament, but referred to the European Court the question whether Community law empowered or obliged a national court to provide effective interim protection of rights claimed under Community law. The Court replied that if the only obstacle to the granting of relief in order to protect directly effective Community rights was a rule of national law prohibiting it from doing so, the national court must as a matter of Community law set that rule aside. The House of Lords then took the unprecedented step of restraining the Secretary of State from applying the Act pending the ruling on its compatibility with Community law by the European Court.

This was argued by some as representing a blow to the doctrine of parliamentary sovereignty.¹⁵⁹ Others argued that all it did was implement a rule of construction (derived from s 2(4) of the European Communities Act 1972) that the UK Parliament is presumed not to intend statutes to override EEC law.¹⁶⁰

Whatever the truth may be, legal reality demands that British courts within the scope of the Treaty now have to decide whether to apply or not to apply Acts of Parliament.

The Human Rights Act 1998¹⁶¹

On 2 October 2000, the Human Rights Act 1998 came into force, incorporating the European Convention on Human Rights into British law.¹⁶² The Act, which has its roots in the New Zealand Bill of Rights Act 1990, brought an end to the Bill of Rights debate in the United Kingdom. Like its New Zealand role-model the Act strives to strike a balance between reflecting modern ideas of human rights protection on the one hand and preserving the ideas of Diceyan parliamentary omnipotence on the other hand. The key provision of the Human Rights Act imposes a duty upon all public authorities to act compatibly with Convention rights.¹⁶³ But just as before, British courts are not entitled to set aside parliamentary legislation on the ground that it violates human rights. Instead the Human Rights Act 1998 lays down the following procedure. First, courts have to interpret national legislation, wherever possible, in a way which is compatible with Convention rights.¹⁶⁴ Where this is not possible, the higher courts may make a formal declaration that national legislation is incompatible with a Convention right.¹⁶⁵ Such a declaration of incompatibility does not effect the validity, continuing operation or enforcement of the provision in question, nor is it binding on the parties to the proceedings in which it is made.¹⁶⁶ The declaration merely sets in motion a fast-track procedure to amend incompatible legislation.¹⁶⁷ Thus the power to amend parliamentary legislation is strictly reserved to Parliament itself and - under certain provisions¹⁶⁸ - to the government. The same rules apply if the European Court of Human Rights states the incompatibility of British national law with the Convention.¹⁶⁹ Although this scheme is described as 'an ingenious and successful reconciliation of the principles of parliamentary sovereignty and the need for effective domestic remedies'¹⁷⁰ it effectively alters the Diceyan assumptions of parliamentary omnipotence in various ways. Limited space confines the analysis to the most obvious challenges. Firstly, the Human Rights Act 1998 modifies the doctrine of implied repeal. In this context s 3 of the Act is pivotal. It imposes a duty on the courts to interpret existing and future legislation in a way which is compatible with Convention rights.¹⁷¹ The section in practice imposes anew interpretative requirement on the courts. As the White Paper explained:

This goes beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.¹⁷²

Thus the section presupposes a continuing parliamentary intention to legislate in a manner consistent with Convention rights.¹⁷³ As a result later Acts of future Parliaments that cannot be interpreted consistently with a Convention right cannot automatically be deemed to have been intended, by implication, to depart from Convention rights.¹⁷⁴ This result is manifested by the deliberate omission from the Act of the equivalent of s 4 of the New Zealand Bill of Rights Act 1990, which expressly requires the courts to apply the doctrine of implied repeal to the interpretation of the Act. Moreover the Act has transferred significant power to the judiciary.¹⁷⁵ In relation to legislation enacted by Parliament, the courts have acquired very extensive new functions. The Act has created a mechanism to exercise a weak form of judicial review over parliamentary legislation. The introduction of the remedy of a declaration of incompatibility means that parliamentary decisions are now subject to legal scrutiny by the courts. A court that makes such a statement will have scrutinized the legislation closely against the jurisprudence of the European Court of Human Rights and in the end will have to make a statement as to the quality of the statute in question. The implications for the traditional understanding of the doctrine parliamentary sovereignty have already been discussed in the context of the New Zealand Bill of Rights.

However, in the case of the United Kingdom there is an additional factor that adds to the potential of a declaration of incompatibility as athreatto parliamentary omnipotence. As a declaration of incompatibility actually means that someone's Convention rights have been infringed that person could consider having recourse to the European Court of Human Rights in Strasbourg itself. This point has been made clear by the Home Secretary who stated:

One of the questions that will always be before Government, in practice, will be, 'Is it sensible to wait for a further challenge to Strasbourg, when the British courts have declared the provision to be outwith the Convention?'¹⁷⁶

Furthermore, s 10 of the Human Rights Act 1998, which establishes the so-called fast-track procedure to allow rapid action to be taken to amend legislation which is the subject of a declaration of incompatibility or a finding of a violation of the Convention by the European Court of Human Rights, specifically provides for the amendment or repeal by ministerial means of primary legislation. Whereas under Diceyan theory only Parliament itself had the power to negate the consequences of a legislative Act, this power now has been transferred to the executive.¹⁷⁷ This not only blurs the line between legislative and executive powers; in practical terms it chips away another part of Parliament's position as the supreme and once exclusive law-making body.