I am a proud to be a Parliamentarian. 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. I believe in Parliament as a forum for testing and improving our law and scrutinising government.
However, it has been suggested that the process of interpretation of legislation by the judiciary allows the courts effectively to limit the sovereignty of Parliament. In my view the courts do no such thing, which 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 faithfully and dispassionately the laws that Parliament makes.
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 legislation should 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.
Views are also 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.
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.
So, I am reluctant to agonise about theoretical future events which are so unlikely to arise. 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.
The European effect
The other most persistent suggestion is that, rather than by a threat from the domestic judiciary, the sovereignty of the Parliament of the United Kingdom has been curtailed by the legal doctrine of the ‘supremacy’ of EU law, and by the application of the principles in the European Convention on Human Rights and the Human Rights Act 1998.
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.
However, 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.
Turning to the Human Rights Act, while there are many examples of it helping to improve the way that public authorities make decisions, in some cases the application of the Act and the nature of the judgments which must be made in some human rights cases can be intensely political, and may stray into what Lord Justice Laws has previously described as areas of ‘macro-policy’. In areas where the law provides the policy maker with a discretion, the elected decision maker has historically been able to opt for one of a range of permissible approaches, and the common law principles of judicial review recognise that their choice should normally be respected by the courts in a democratic state. The Human Rights Act does not, on its face, recognise the same limitations.
A second issue arising out of the incorporation of the ECHR is the differences which can sometimes be seen in the application of the Convention rights between our domestic courts and the Court in Strasbourg; put simply, the two do not always reach the same conclusions in relation to ECHR challenges.
Take the matter of prisoner voting, sparked by the case of Hirst. The English Court reviewed the English, European and international authorities and quite logically, found that it was for Parliament to determine the appropriate policy on this issue. However, this reached the Strasbourg Court in 2004 and the Court found that the ban was disproportionate, a mistaken interpretation of the law in my view.
In early 2012 Strasbourg further considered the matter in the Italian case of Scoppola. It affirmed the requirement on the UK to take action to correct the breach of Article 3 in the existing blanket ban on prisoner voting, without being prescriptive as to what detailed changes should be made. Consequently, the Government has recently published a draft Bill for pre-legislative scrutiny.
But none of this makes Parliament subservient to the Strasbourg court. Observing its judgements is an international legal obligation arising by Treaty but it is possible for Parliament to take no action on the judgment, although that would leave the Government in breach of the Treaty and liable to criticism and sanctions from its fellow signatories in the Council of Europe and to damages awarded by the Court.
Some have also argued that the solution for the UK in view of these problems is to withdraw from the Convention altogether on the grounds that it is an undesirable and unnecessary fetter of national sovereignty in decision making. I disagree. Withdrawal would result in reputational damage to the UK’s status as a country at the forefront of the promotion of the rule of law and Human Rights. But nothing in that debate undermines Parliament’s ultimate sovereignty either. But it does seem to me to be right and appropriate that the way the ECHR is applied at British and European level, and the way in which its principles are incorporated into the law of the United Kingdom, should involve procedures which ensure that proper account is taken of democratic decisions by national parliaments. Let me just identify two points.
First is the importance of subsidiarity in the application of the Convention. Subsidiarity in the context of the Convention means - as I firmly believe should be the case - that the national authorities of Member States (that is, their governments, legislatures and courts) have the primary responsibility for guaranteeing and protecting human rights at a national level, and that the European Court of Human Rights has a subsidiary role in supervising the protection of Convention rights.
Of course, the United Kingdom should still be subject to the judgements of the Strasbourg court, but Strasbourg should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention. I hope that as a result of the Brighton Declaration and the eventual amendments to the convention and to its preamble there will be a shift in the court’s approach on these points.
Secondly, the Human Rights Act is not synonymous with the Convention. Nor is it some sacred tablet of stone. It is simply the method by which the United Kingdom has chosen to incorporate the Convention into our domestic law. And as many of you will know, the Government set up an independent Commission to investigate the case for replacing the Act with a UK Bill of Rights. The Commission published its report on 18 December 2012, and the Government will now give the report careful consideration.
Inevitably, the courts sometimes apply the law in a way with which someone does not agree. Every decided case in the law has at least one disappointed litigant. Nevertheless, I believe not just that there is no conflict between the principle and operation of the sovereignty of Parliament and the rule of law; but rather, to the contrary, that the two are mutually reinforcing. The respect of the courts in this country for the sovereignty of Parliament is integral to their role as guardians of the rule of law. So, too, Parliament’s respect for the courts as interpreter of our law is essential to its legitimacy as a supreme legislator.
This article was adapted from a speech given at BPP Law School, October 2012. For the full speech, please go to www.ago.gov.uk.
Dominic Grieve QC MP, Attorney General