“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.”
“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 activities
“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:
Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) fall to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of another Act.
“What Parliament has done by that Act is to place beyond speculation the constitutional position explained in the Metric Martyrs case and to guard against any risk that common law jurisprudence might drift away from the orthodox constitutional position, by placing the principle of parliamentary sovereignty in relation to EU on a statutory footing.
“This is not to say that there are not very interesting issues which arise out of European Law. The way it is created, applied through directives and incorporated into our law through statutory instruments and the interpretation of that law by the Commission and the ECJ and its application by our own courts are serious issues for discussion. But none of that alters the fact that this system has been willed on us by ourselves and is subject to Parliamentary sovereignty.”
Human rights law
“Which brings me to human rights law. As is well known, I was and remain broadly comfortable with the Human Rights Act and the incorporation of the ECHR into our own statute law. The advantages are easily rehearsed. It avoided a continuous stream of cases going to Strasbourg, a stream that was clearly going to accelerate regardless of incorporation. It afforded an opportunity for our national courts to develop their own jurisprudence in relation to the ECHR.
“In an environment where the intrusive power of the state had increased and was and is still increasing, it seemed to me wise to follow in the tradition of our forefathers and provide extra protection for rights and liberties as they did, whether in Magna Carta or the Bill of Rights of 1689, to reinforce the common law.
“So too, there is no doubt that there are many examples of the Human Rights Act helping to improve the way that public authorities make decisions. For example, few could disagree with the outcomes of cases such as R v East Sussex County Council (No. 2), which overturned a ban on manual lifting of severely disabled patients which had been imposed solely with regard to rules for the health and safety of carers and without sufficient thought as to its impact on the disabled people they were serving. The court did not seek to interfere with the balance the local authority might ultimately decide to strike between these competing interests but it did ensure that both interests were properly taken into account by the local authority in formulating its policy.
“Nevertheless, it cannot be ignored that in some cases the application of the Human Rights 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 his impressive FA Mann Lecture last year, Lord Sumption described the way in which the Human Rights Act (to quote) ‘has significantly shifted the boundaries between political and legal decision-making’ because when judges make decisions involving qualified Convention rights, the determinations almost always involve striking a difficult balance between competing public interests, which is an inherently political exercise.
“It is true that in judicial review cases the courts may also become involved in areas of macro-policy but the common law limits of judicial review mean that there is at least some recognition that it is for the policy maker to make the initial decision. In areas where the law provides the policy maker with a discretion, the elected decision maker may 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 2 do not always reach the same conclusions in relation to ECHR challenges.
“To take one example, the UK law that those convicted of a sufficiently serious offence that it warrants imprisonment should not be entitled to vote while they are imprisoned came before the Divisional Court in 2001 in the case of Hirst v Attorney General the Court reviewed the English, European and international authorities and, to my mind quite logically, found that it was for Parliament to determine the appropriate policy on this issue. The Court said:
As Parliament has the responsibility for deciding what shall be the consequences of conviction by laying down the powers and duties of a sentencing tribunal or other body it necessarily follows that lines have to be drawn, and that on subsequent examination a case can be made in favour of the line being drawn somewhere else, but in deference to the legislature courts should not easily be persuaded to condemn what has been done, especially where it has been done in primary legislation after careful evaluation and against a background of increasing public concern about crime.
“The matter reached the Strasbourg Court in 2004 and the Court found that the ban was disproportionate, and therefore that it was in breach of Article 3 of Protocol 1. That decision is, in my view, a mistaken interpretation of the law; and it is not without interest that this view is shared by a large majority of the members of the House of Commons. Indeed, a vote to retain the current ban in 2011 was agreed on a division by a margin of 234 to 22, with the Government abstaining from the vote.
“In early 2012 the Strasbourg Court further considered the matter in the 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. The government is currently considering how to address that issue.
“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 the Council of Europe by its fellow signatories 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 2 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 the European Court of Human Rights has a subsidiary role in supervising the protection of Convention rights.
“The principle of subsidiarity recognises the fact that, as I was saying earlier, the Court is at times having to make intensely political judgments and the balance to be struck between competing interests should often be decided at a local level. As Lord Sumption has said ‘rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community.’
“Of course, the United Kingdom should still be subject to the judgments 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. It is to be hoped that as a result of the Brighton Declaration and the forthcoming amendments to the convention and to its preamble there will be a shift in the court’s approach.
“Second, is the way in which Convention law is enshrined and applied in English law. 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 has set up a Commission on a UK Bill of Rights to investigate the case for replacing the Act with a UK Bill of Rights which will ensure that the Convention rights continue to be enshrined in UK law.
“The intention is not to limit or erode the application of any of the rights and freedoms in the Convention. However, deciding how best to incorporate the Convention into UK law requires an understanding of the nature of some of the judgments which have to be made in human rights cases and the fact that where there is a balance to be struck between competing rights, there may be more than one permissible answer.”
“The last aspect of the relationship between Parliament and the courts which I want to touch on today is the exclusion of judicial oversight of Parliament’s activities. This exclusion is referred to as parliamentary privilege. It is, in essence, a rule that the conduct of Parliamentary business cannot be subject to judicial challenge. The way in which Parliament makes its laws is controlled and policed by Parliament, and not by the courts.
“Parliamentary privilege is an aspect of the supremacy or sovereignty of Parliament as a lawmaker. I have already discussed the fact that the courts of this country cannot review primary legislation to determine whether it is constitutional, fair or proportionate. But Parliament would not be truly sovereign if the courts were able to exercise oversight of the way in which it made its laws, because it would then follow that the courts, and not Parliament, could determine whether a law had been properly made and therefore whether it should be enforced.
“Perhaps the most topical of the aspects of Parliamentary privilege is the freedom of speech of all those who participate in Parliamentary proceedings. That freedom is enshrined in Article 9 of the Bill of Rights 1689 which says:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
“Whilst its assertion by the Speaker of the House of Commons at the commencement of every parliamentary session is nowadays more of a formality that in by gone centuries; in my view privilege remains of paramount importance to ensure that Parliament in carrying out its functions is independent, and that any person contributing to its work, is able to speak out without fear or favour.
“Although Article 9 is an absolute privilege, Parliament has for some time accepted in its own procedures a sub judice rule; that it should not bring up matters in debates, questions or motions which are awaiting adjudication in a court of law. This rule reflects the long-standing comity between the Parliament and the courts which means that each takes care not to intrude on the other’s territory, or to undermine the other’s authority. The overwhelming majority of Parliamentarians are careful to observe this convention.
“In recent years, however, there have been a number of cases in which information has been revealed during parliamentary proceedings which was subject to anonymised injunctions granted by the High Court. No doubt you will all remember the examples as they attracted widespread media coverage and debate. I agree entirely with the point made by the Lord Chief Justice in the press conference he held with the Master of the Rolls when the Report of the Committee on Super-Injunctions was published in May 2011:
There has never been any question in any of these orders… of the court challenging the Sovereignty of Parliament. This is not the issue.
“There are circumstances in which may be appropriate for Parliamentarians to refer to matters which are sub judice. The current resolutions of each House provide that reference to matters which are sub judice may be made ‘where a ministerial decision is in question, or in the Opinion of the Chair a case concerns issues of national importance…’.
“That though, is a high threshold. It ill serves the Parliamentary process if court orders are flouted without very strong reasons; and a member must therefore be able to demonstrate that the threshold has been clearly crossed before she or she acts contrary to the rule. That is, not least because parliamentary privilege belongs to each House as a whole, not just the individual member, and if that privilege is abused it is Parliament as a whole which is affected. Furthermore it has the capacity to undermine the rule of law and the independence of the judiciary by impeding the operation of the courts and fair trial processes.
“Certainly, any decision to refer to matters which are sub judice should be taken on the basis that the business of Parliament requires it and before any reference is made the agreement of the Speaker should be sought. To ambush Parliament without due warning is a gross abuse of the privilege.
“As I have said, the recent cases were high-profile. However, breaches of the sub judice rule are in fact rare. Were they to become more commonplace then as Attorney General and advisor to Parliament I would not shy away from advocating more stringent regulation of what members can say during parliamentary proceedings. But those would be regulations imposed and enforced by Parliament, and not by the courts.
“There is one final area of Parliament’s work which needs mention. To operate properly Parliament requires and possesses coercive and punitive powers towards those it summons before it to give evidence and because of Parliamentary sovereignty the exercise of those powers will properly not be amenable to domestic judicial scrutiny. But it is important that any action it takes meets the international benchmarks provided by articles 5 and 6 of the ECHR and the very rare use of the powers and their archaic origins means that these may require modernisation.”
“These 3 issues - the sovereignty of Parliament, the way in which human rights are guaranteed in our law, and the privileges which Parliament enjoys in relation to its own proceedings - all have 1 thing in common. They are issues about the extent of and limits to the legislative authority of the democratically elected representatives of the people of this country.
“Those limits are part of our law, and therefore will inevitably have at times to be scrutinised by the courts as happened for instance when some MPs sought to assert Parliamentary privilege in respect of not being put on trial for fraudulent claims for expenses.
“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 1 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 2 are mutually reinforcing just as Dicey identified.
“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.
“It is only in a system of government where the rule of law is respected that the law is truly legitimate, and legitimacy is the essence of the authority of a democratic government. The origins of Parliament lie in the need for medieval monarchs to have the approval of a representative assembly to legitimize their decisions. Today the authority and sovereignty of a democratic Parliament is supported and legitimized daily by the work of our courts.”