Constitutional & administrative law.

Constitutional & Administrative Law

2001/2002

‘Desirable as it is, the full entrenchment of the Human Rights Act 1998 remains

impossible due to Parliamentary Sovereignty’.

Analyse and critically assess the above statement.

I am of the opinion that full enforcement of the Human Rights Act can not be possible due to the long standing constitutional doctrine of Parliamentary Sovereignty. In this essay it will be discussed the origins of Parliamentary Supremacy and the effect of the incorporation of the Human Rights Act 1998 will have on this. The theory of Parliamentary Sovereignty, its meaning and how allowing individuals all the rights and freedoms as laid out in the named Act would undermine this, therefore I believe that fully incorporating and abiding by the Human Rights Act will be impossible due to the theory of the supremacy of Parliament.

Parliament is the legislative assembly of the United Kingdom of Great Britain and Northern Ireland. Over the centuries it has become more than a legislative body; it is the sovereign power of Great Britain, whereas the monarch remains sovereign in name only. It has the power to: create new laws (eg Transport Act 1981), amend existing Acts

(eg the Transport Act 1981 amended the Transport Act 1972), pass a Consolidation Act which brings together other Acts which cover similar areas of Law (eg Sale of Goods Act 1979), Pass a Codifying Act which his gathers together all of the law in one area, including Statutes, Case Law, Regulations etc (eg Sale of Goods Act 1992). The Sovereignty of Parliament can be defined with the single statement that 'An Act of Parliament is the supreme law within the English legal system'. A more common statement of declaring Parliamentary Supremacy is that of Dicey:

“that Parliament has the right to make or unmake any law whatever; and further 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.”

The historical origins of parliamentary supremacy lie in gradual development of the understanding the law required not merely the personal decision of the Monarch, but the advice and consent of the representatives of the House of Lords & House of Commons. In the 14th cent., Parliament began to gain control over grants of revenue to the king. From Parliament's judicial authority to consider petitions for grievances and to submit such petitions to the king, developed the practice of withholding financial supplies until the king accepted and acted on the petitions. Statute legislation arose as the petition form was gradually replaced by the drafting of bills sent to the king and ultimately enacted by Commons, Lords, and King together. Impeachment of the king's ministers, another means for securing control over administrative policy, also derived from Parliament's judicial authority and was first used late in the 14th cent. In the 15th cent., through these devices, Parliament held wide administrative and legislative powers, it became essentially an instrument of the monarch's will.

In the course of the English civil war, Parliament voiced demands not only for collateral power but for actual sovereignty. Although under Cromwell, parliamentary authority was reduced to a mere travesty, the Restoration brought Parliament back into power, secure in its claims to legislative supremacy, to full authority over taxation and expenditures, and to a voice in public policy through partial control by impeachment over the king's choice of ministers. Charles II set about learning to manage Parliament, rather than opposing it. James II's refusal to do so led to the Glorious Revolution of 1688, which permanently affirmed parliamentary ...

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In 1690, the Bill of Rights confirmed this once and for all in Art 1:

“That the pretended power of suspending of laws, or the execution of laws by regal authority without the consent of Parliament is illegal.”

That Bill defined the relationship between Parliament, the Crown and the courts. It was seen as the foundation stone of representative government, curbing un-elected power and establishing a constitutional monarchy. From this point the power to create new law has been held by Parliament alone. The Bill of Rights was designed to control the power of kings and queens and to make them subject to laws passed by Parliament. It has been stated as part of the doctrine of Parliamentary supremacy that no-one can hold an Act of Parliament invalid including the judiciary. This was emphasised in Madzimbamtu V Lardner-Burke 1969, where Lord Reid said:

“It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid.” It is also stated that the courts will not involve themselves in questions relating to the way in which legislation was passed, this was demonstrated in the case British Railways Board V Pickin (1974) where it was alleged that an Act of Parliament had been passed after Parliament had been misled. The court upheld the validity of the Act, stating that any defects in procedure would be investigated by Parliament. It is seen that there is some historical progression which has concluded in the doctrine of Parliamentary supremacy being upheld and abided by, by the Monarch, Judiciary and all, Parliament is the supreme law making body, there is no limitation of its power.

When Britain joined the EC, there were concerns expressed about the constitutional implications of this. In particular, about the way the EC membership would be reconciled with the traditional theory of Parliamentary supremacy. Due to the British constitution being largely unwritten, an Act was passed: The European Communities Act 1972. the Act seemed to provide the courts with instruction to obey Community law, but was not clear on what to do if this conflicted with an Act of Parliament. They were advised to interpret in ways so as not to create discrepancy between them. There was no direct clash between EC law and British law until the Factortame cases in 1990 and 1991. these concerned an apparent clash between EC law forbidding discrimination on grounds of nationality and the Merchant Shipping Act 1988 which imposed discriminatory rules on fishing boats. They challenged the application to them of the 1988 Act and asked for an interim injunction suspending the Act, pending a reference to the European Court of Justice. English law would not have permitted such suspension as it would undermine the doctrine of Parliamentary supremacy, the European Court of Justice said that EC law could require it. The House of Lords chose to obey the 1972 European Communities Act and awarded the injunction.

The basic rule of European Union Law is that The European Communities Act of 1972 provides for the incorporation of European Community law into UK law. This contrasts with the basic rule of Sovereignty of the UK Parliament in that any UK Act of Parliament can be overruled by an European law. The Human Rights Act 1998 (HRA 1998) was chosen to be incorporated and now forms part of British law. It has been stated that this will challenge existing legislation which may be seen as incompatible with the HRA 1998. this in itself questions the doctrine of Parliamentary supremacy. If parliament is the supreme law making body and it is the only organism which has the power to do so, then can it be possible for EC law to allow Parliamentary legislation to be declared incompatible with the convention on Human Rights?

The Human Rights Act 1998, was seen as “an Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights.” It came into force in the UK in October 2000. Guidance was given that “primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This in itself begins to show that EC law has a higher priority than that of Parliament if the Human Rights Act is to be adhered to prior to UK legislation. It should enable citizens to challenge more easily actions of the state if they fail to match the standards set by the European convention. This shows that the citizens rights and opinions should be more valuable than the ruling of Parliament in creating legislation. If legislation is found which is seen to be contrary to the Human Rights Act then a declaration of incompatibility must be issued. The Act also states that is unlawful for a public authority to act in a way which is incompatible with a Convention right. For all subsequent legislation, after 2000 and the introduction of the Act there is an additional protection. The responsible minister will be required to issue a written statement as to whether the bill is intended to be compatible with the Convention. Where a statement of compatibility has been made, this will add much greater force to the presumption that Parliament did not intend to infringe Convention rights, and if it is not possible to resolve the conflict by construction, the higher courts will be able to issue a formal declaration of incompatibility. Such a declaration will have the same effect as an adverse judgement in Strasbourg.

Public authorities like the Police and other investigating agencies now bound by the above statement now have changes in procedure. The introduction of the Regulation of Investigatory Powers Act 2000 (RIPA 2000) has brought in stricter guidance for authorities in cases relating to interception of data, communication, surveillance and suchlike so as not to be seen to be breaching the human rights of any individuals. This has now ensured more procedural time taken and less crime prevention by such agencies. The admission in a criminal trial of evidence obtained as a result of compulsory questioning is said to involve a violation of Article 6. In Saunders v. United Kingdom the Court held that the privilege against self-incrimination is an important element in safeguarding an accused from oppression and coercion in criminal proceedings. The admission in evidence of transcripts of interviews with Department of Trade and Industry inspectors violated Article 6(1) since the applicant was under a duty to answer the inspectors' questions, enforceable by proceedings for contempt.

The Court in Strasbourg has held that under Article 5 of the Convention a person charged with a criminal offence must be released pending trial unless the state can show that there are 'relevant and sufficient' reasons to justify his continued detention. There are a number of principles in the Strasbourg case law which are not fully reflected in UK law on bail, and the Law Commission is currently reviewing domestic practice for compatibility with Article 5. The most glaring inconsistency was Section 25 of the Criminal Justice and Public Order Act 1996, which introduced a new rule imposing an absolute prohibition on the grant of bail for those who have previously been convicted of murder, manslaughter or rape, and who were facing a similar charge. In Edwards v. United Kingdom the Court held that 'it is a requirement of fairness under Article 6, indeed one which is recognised under English law, that the prosecution must disclose to the defence all material evidence for or against the accused'. But that case was decided before the Criminal Procedure and Investigations Act 1996 (CPIA). There are a number of areas in which the current practice appears to fall short of the statements of principle in the Strasbourg case law. For example, the Convention cases require disclosure of material which may undermine the credibility of a defence witness or material which may be relevant to sentence; and establish a broad duty of third party disclosure extending to any material 'to which the prosecution or the police could gain access'. Most importantly, the duty of disclosure under Article 6 of the Convention is not dependent upon disclosure of the defence case.

In light of current events, like in the case of Lincolnshire Police as advertised in The Times on 5/2/2, stating that the private client-lawyer conversations were bugged and this is where the murder charge was ‘confessed to’. Part of the prosecutions case was obtained as result of overhearing what the accused had discussed confidentially with his solicitor. This case saw the conviction quashed due to the infringement of basic rights which the convention guarantees: Article 6.3 the right to a fair trial and Article 8 the right to privacy. This is an example of where the rights of the individual have come before the aims of Parliament in securing a conviction of someone guilty of a serious offence.

It is my opinion that to fully respect and take individuals rights as paramount would mean taking the rights and prerogative of the state as second. This in itself shows that desirable as it may be, to fully establish human rights as a central part of the system it will not be entirely possible due to the long standing doctrine of Parliamentary Sovereignty.

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