Section 2(1) had the effect of bringing into domestic law all the rules of existing and future Community law that are directly applicable or directly effective, “without further enactment”. This had the effect of adopting at a stroke almost the entire existing body of Community regulations. Section 2(2) empowers the government to give effect to non-directly effective EEC law. Section 2(4) stipulated that “any enactments passed or to be passed” are “to be construed” and take effect subject to the provisions of section 2. Section 3(1) provided that for the purpose of all legal proceedings, the meaning or effect of the Treaty and the validity, meaning or effect of any Community instrument are questions of law which, if not referred to the ECJ, are to be determined in accordance with principles laid down by the ECJ.
How the courts would respond to section 2(4) was a matter for speculation. Prior to the ECA coming into force, Lord Diplock argued that it was a consequence of Parliamentary sovereignty that if an Act subsequent to the ECA was in conflict with Community law, “the UK courts would be bound to give effect to the Act… notwithstanding any conflict” (1972, p.8) The answer came in the form of the Factortame case. Spanish fishing-boat operators claimed that provisions in the Merchant Shipping Act 1988 (hereafter MSA) were in conflict with Community law. The House of Lords did not apply the usual doctrine of implied repeal, but instead allowed the earlier ECA to prevail, thus ensuring the supremacy of Community law. From this decision, it seemed clear that the House of Lords accepted that Parliament itself could change the law of sovereignty (Phillipson, 2003). Notably, Lord Bridge argued that Parliament had ‘voluntarily accepted’ a diminution in its sovereignty by passing the ECA. In other words, the supremacy of EC law in the UK arises solely because of an Act of Parliament. As Sir John Laws (now Laws LJ) has put it, Community law is not a higher-order law, because “the limits… it sets to the power of Parliament are at the grace of Parliament itself” (1995, p.89). So although Factortame shows that EC law is prima facie supreme, upon closer inspection it affirms the negative limb of Dicey’s orthodox theory (Phillipson, 2003).
Thorburn v Sunderland City Council [2002] 1 CMLR 50 affirms the decision in Factortame that implied repeal is no longer applicable in respect of EC matters, but the rationale is different. Sir John Laws said that Parliament cannot, and did not, bind itself, but the courts can denote certain statutes as ‘constitutional’, such as the ECA, meaning that it cannot be impliedly repealed. Although such an ability of courts to declare an Act ‘constitutional’ may be argued as a diminution of Parliamentary sovereignty.
Thorburn also indicates that if Parliament wishes to legislate incompatibly with Community law, the statute must include an express provision stating such an intention. Phillipson (2003) interpreted this as meaning that Parliament was still sovereign, so nothing radical came of joining the EC.
In Macarthys Ltd v Smith [1979] 3 All ER 325, the courts held unequivocally that Community law took priority. Relying on section 2(4) as a rule of construction, they took the view that where possible, national legislation had to be interpreted and applied so that it did not conflict with Community law (Turpin, 2002). However, de Smith & Brazier (1985, p.91) criticised this, saying that the words “shall be construed” meant that section 2(4) cannot be “a mere rule of construction”. Allan (1997), in support of the construction view, drew attention to Lord Denning’s proposition that Parliament could repudiate the Treaty if it expressly stated its intention to do so. Lord Denning also concluded that section 2 had abolished the doctrine of implied repeal for British statutes affecting EEC matters (Loveland, 2003).
Provisions of the ECA do not sit easily next to Parliamentary sovereignty. Section 2(1) takes the view that EU membership can alter domestic rules, while section 3(1) identifies that the meaning and effect of EU law are to be determined by reference to the principles and decisions of European courts (Armstrong, 2003, p.327). Further, the “passed or to be passed” formula of section 2(4) appears to be an attempt by the Parliament of 1972 to bind its successors from legislating in a way that was inconsistent with Community law, which goes against Dicey’s negative limb. Under the doctrine of implied repeal, any Community law provision would prevail over UK legislation enacted before the ECA; this accords with Parliamentary sovereignty. However, an issue arises in the wording of section 2(4) – an enactment “to be passed” must be applied “subject to” the ECA’s provisions.
Wade, a strong supporter of the orthodox view of Parliamentary sovereignty, rejected the construction view as implausible, contending that section 2(4) was an attempt by the Parliament of 1972 to suspend the doctrine of implied repeal and bind its successors. He struggled to reconcile Parliament’s continuity of sovereign legislative power with the need to give Community law priority and regarded it as revolutionary that the courts would abandon their traditional adherence to the will of Parliament (Armstrong, 2003).
The doctrine of Parliamentary sovereignty has posed a massive obstacle during attempts to increase the level of formal protection of human rights in constitutional law (Bradley, 2004). In the past, the doctrine meant that there were no individual rights or freedoms that may not be diminished by an Act of Parliament, and courts were pressured to find ways to give effect to the ECHR. The enactment of the HRA placed European human rights norms within a domestic constitutional context, enabling provisions of the Convention to have a direct effect on domestic law (Armstrong, 2003).
Lord Irvine (2003) asserted that Parliament has two principal interests in the HRA – to defend its legislation and to maintain parliamentary sovereignty by defending its right to legislate. It succeeded by neither entrenching Convention rights nor granting political freedom to Parliament to compromise them by later statutory amendment. Instead, it was designed to be compatible with and strengthen Parliamentary sovereignty (Bamforth, 1999). As Lord Steyn (1999) declared, “it is crystal clear that the carefully and subtly drafted Human Rights Act preserves the principle of Parliamentary sovereignty”. But Bradley (2004, p.57) argued that the Act has “enabled there to be judicial review of legislation in all but name” by equipping courts with a dual function to apply the rule of interpretation and, failing that, to make a declaration of incompatibility.
Section 3 requires existing and future legislation to be interpreted as far as is possible so as to be compatible with Convention rights (defined in section 1(1)), and provides courts with new and extended powers of interpretation. To minimise the tension between protecting fundamental rights and the maintenance of Parliament’s legislative sovereignty, subsections (b) and (c) give no power to strike down or disapply legislation which is found to be incompatible with Convention rights.
Although the meaning of the word ‘possible’ has produced a divergence of opinions as to statutory interpretation, Loveland (2003) concluded that the real question raised by section 3 would not be whether it required courts to make a radical break for traditional interpretive principles, but to what extent it required them to do so. The interpretative obligation can have far-reaching effects, as exemplified in Litster v Forth Dry Dock and Engineering Co. Ltd [1990] 1 AC 546, while the cases of R v A [2001] 2 WLR 1546 and Ghaidan v Godin-Mendoza [2004] 2 WLR 478 demonstrate the extent to which the courts feel free to use Section 3.
One question that arises is whether the HRA has modified the doctrine of implied repeal. Even if an earlier statute infringes a Convention right and cannot be interpreted compatibly, it remains in force but subject to a declaration of incompatibility (sections 3(2)b and 4(6)). This is contrary to the doctrine of implied repeal, and as a result, to the doctrine of Parliamentary sovereignty (Charania-Boutia, 1996). Bradley (2003, p.59), in support, asserted that the HRA appears to have found a way of ensuring that in relation to Convention rights, there will be “little space in which the doctrine can be applied”.
Section 4 creates the novel remedy of a ‘declaration of incompatibility’ and applies where a court cannot interpret a statutory provision in a way that is compatible with a Convention right. This section cannot be said to encroach on Parliamentary sovereignty, because the declaration does not invalidate the provision concerned (section 4(6)) and Parliament is not required to take remedial action; although it can do so under section 10 of Schedule 2. This means that Parliament’s competence to enact any law is unimpaired, although a powerful restraint has been imposed upon its freedom to interfere with fundamental rights (Turpin, 2002). On the other hand, the capacity to issue a declaration of incompatibility subtly alters the allocation of powers – Parliament has invited the judges to tell it that it has acted wrongly by legislating incompatibly with a Convention right (Feldman, 1999).
Section 6(1) requires public authorities to act in conformity with Convention rights, which may be feared as empowering courts to constrain public bodies (Elliott, 2000). But section 6(2) provides that a public authority in breach of a Convention right does not act unlawfully if it adopted the course taken because of legislation. It effectively provides public authorities with a justification for breaching Convention rights, but would be contingent on the way in which courts interpreted section 3 (Loveland, 2003). Notably, Parliament may legislate incompatibly because section 6(3) excludes Parliament from the definition of “public authority”.
Section 19 requires a minister responsible for a Bill to issue a statement that it is compatible with Convention rights, thus ensuring that Parliament retains the primary responsibility for securing respect for Convention rights (Greer, 1999). However, section 19 statements do not bind courts to conclude that the legislation concerned is compatible, nor do they have persuasive authority (R v A (No. 2) [2002] 1 AC 45 at 75, para. 69, per Lord Hope of Craighead). This section asserts Parliamentary sovereignty because Parliament may expressly choose to legislate incompatibly, and it does so with informed consent (Lord Irvine of Lairg QC, 2003).
Greer (1999) applauded the HRA as a much overdue constitutional innovation and Lord Irvine (2003) viewed the Act as a reinvigoration of the rule of law because it gave greater responsibility to the judiciary, thereby upholding the rule of law. On the other hand, Greer (1999) asserted that the Act erodes Parliamentary sovereignty because declarations of incompatibility which Parliament fails to correct will ultimately be open to challenge before the Court of Human Rights. Lord Lester and Clapinska (2004) viewed the HRA as giving a weaker legal status to Convention law that is given to Community law under section 2 of the ECA but recognised that it endowed the judiciary with strong interpretative powers.
The Act has achieved its desired balance by retaining Parliament’s legal right to enact legislation which is incompatible with Convention rights. But section 4 dramatically reduces its political capacity to do so because the declaration serves as a political, perhaps moral disincentive to legislate incompatibly (Lord Irvine, 2003). The government in its White Paper had taken the view that, owing to the sovereignty of Parliament, the general position was that it was impossible to bind future Parliaments, so future legislation may repeal the HRA.
The HRA has an obvious potential parallel with the ECA in section 3(1). ‘As far as possible’ can be interpreted by having regard to the presumption that Parliament intends to abide by its international obligations, so where there is ambiguity, an interpretation which avoids conflict is to be followed (Armstrong, 2003). However, Marshall (1999) read it as a more specific instruction to courts to adopt a compatible interpretation even in the absence of ambiguity. This returns us to problems which also arise in respect of section 2(4) of the ECA – Armstrong (2003) asked: at what point do normal rules of construction give way to interpretative exercises that disguise significant judicial activism?
In conclusion, Parliamentary sovereignty has survived neither the UK’s membership of the European Community nor the effects of the HRA. Both Acts have eroded Parliamentary sovereignty, but to different extents. From an orthodox view of Parliamentary sovereignty, Wade (1996, p.571) is correct in saying that “While Britain remains in the Community, we are in a regime in which Parliament has bound its successors successfully, and which is nothing if not revolutionary”. The ECA means that Community law is supreme, although this is at the grace of Parliament. Parliament may repeal the ECA and exit the EU at any time but this is highly unlikely, due to economic and political pressures. Perhaps the draftsmanship of this Act served as a lesson to the legislators of the HRA, for it seems that the HRA is more impervious to the supremacy of EC law. But of course, the discussion of some of its provisions has shown that it has not left Parliamentary sovereignty completely unaffected. The HRA may also be repealed but the Act may come to acquire a ‘moral entrenchment’ so that repeal becomes unthinkable (Munro, 1999).
In order to find that Parliamentary sovereignty has not been changed so dramatically, we need to reassess the doctrine of Parliamentary sovereignty and redefine both its powers and limitations of powers, or adopt a different view in assessing the effect of the UK’s accession to the EEC and the incorporation of the ECHR. This examination of the impact of Parliamentary sovereignty has based the doctrine on the orthodox Diceyan approach. Perhaps adopting a common law approach to Parliamentary sovereignty would offer an alternate analysis of the ECA as an evolution (Allan, 1997), instead of Wade’s (1996) ‘revolution’.
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