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Workshop 9.3 - Parliamentary sovereignty and the common law - Coggle…
Workshop 9.3 - Parliamentary sovereignty and the common law
Context
The Diceyan theory of parliamentary supremacy has come under pressure over the last half-century.
These pressures have largely been brought about by Parliament itself through the passing of reforming constitutional legislation.
Parliament has imposed limitations ipon itself which are binding only for as long as subsequent Parliaments wish them to be.
Exclusion of court jurisdiction
One of the most contentious issues has been the use of ouster clauses.
These are attempts to oust the courts' rights to scrutinise governmental actions and decisions through JR.
When interpreting these clauses, the courts will attempt to protect right to the extent they are able to.
Anisminic v Foreign Compensation Commission [1969] 2 AC 137
S 4(4) of the Foreign Compensation Act 1960 provided that "the determination by the commission of any application made to them under this Act shall not be called in question in any court of law"
Anisminic wanted to challenge a decision of the FCC on the basis that it had misconstrued the legal effect of the statutory framework under which it operated.
The law lords held that the ouster clause didn't prevent it from challenging the FCC's decision.
Ouster clauses and sovereignty
The judiciary tend to disapprove of ouster clauses.
The courts see ouster clauses as an affront to its constitutional purpose of holding the executive to account.
The judiciary tend to use highly purposive forms of statutory interpretation to bypass the apparent intention of Parliament in its original legislation.
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
s 67(8) of the Regulation of Investigatory Powers Act 2000 excluded judicial review of the decisions of the Investigatory Powers Tribunal (IPT).
The UKSC held that this did ot exclude JR and re-emphasised the importance of the presumption against ousting the jurisdiction of the court.
It was for the courts to strike an appropriate balance between the inferred intention of Parliament and this central constitutional principle.
Subsequent to Privacy International, the government's response has been to seek to achieve the necessary clarity in the wording of ouster clauses.
Other forms of restriction on courts' powers of review - s 3 HRA
A new tactic has been used recently to prevent the courts' ability to use their interpretive powers under s 3 of the HRA.
This restriction has been a notable feature of several Acts and has often been adopted in tandem with wider ouster clauses (e.g. in the Safety of Rwanda Act 2024).
Principle of legality - R v SoS Home Department ex parte Simms [2000] 2 AC 115
Lord Hoffmann said that "fundamental rights cannot be overriden by general or ambiguous words" and "in the absence of express language... the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual"
His statement established a balance between the two key constitutional principles which can work in tension together.
He recognised that Parliament can enact laws which undermine fundamental rights (if it wanted to) but it must state its intentions in crystal clear terms. Otherwise, the courts will apply the strong presumption that Parliament did not intend to restrict rights.
Some may see this as a very mild form of entrenchment of fundamental rights.
Legality principle expanded
The legality principle (although closely associated with the Simms case) can be traced back to a series of cases in the 90s starting with
R v SoS for the Home Department, ex parte Leech (No 2) [1994] QB 198
.
This case concerned prison rules allowing the interception of legal correspondence between a prisoner and his lawyers.
The CA held that these interfered with a constitutional right to the free flow of communications between a solicitor and a client.
The CA also made clear that this interference could only be authorised by express words in the statute or by necessary implications.
R v Lord Chancellor, ex parte Witham [1997]
Witham wanted to sue for defamation but couldn't afford the court fees. He sought JR of the Lord Chancellor's decision in setting the court fees.
It was held that the Act didn't authorise the LC to set fees at such a level that access to the court was denied. The SI was ultra vires to the Act.
This approach was also used in Witham where the scale of court fees set by the Lord Chancellor under the authority of a SI was challenged.
Common law constitutionalism
The courts have bee developing a body of principle known as common law constitutionalism.
This represents a way in which the judiciary seek to modify and temper potentially more alarming consequences of a system built on Dicey's theory of unlimited parliamentary sovereignty.
These have effectively created parallel routes for rights protection, operating alongside the more formal enforcement process created by the HRA.
This represents a form of judicial insurance policy in the even that the HRA is repealed in the future.
Context
Critics of judicial activism would point to them as examples of judicial overreach distorting apparent parliamentary intention.
Supporters would point to the vital role of an independent judiciary developing principles that are designed to maintain and promote constitutional safeguards.
Osborn v Parole Board [2013] UKSC 61
Lord Reed held that the PB had acted unlawfully in failing to allow oral hearings for three prisoners when important decisions were being taken about their release or recall on licence.
Though the challenge to the Board was based on Article 5(4) ECHR, Lord Reed said that the HRA did not supersede the protection of human rights under common law or statue and uman rights continue to be protected by our deomestic law.
Effectively, Lord Reed was developing on the principle that administrative bodies have an obligation to act fairly to those about whom they were making important decisions.
He set out a general rationale for an extension of the duty of fairness in relation to personal involvement of prisoners in the decision-making process.
This meant that participation of prisoners in personal hearing was expanded based on the principle that involvement in the process by those affected was an important personal right in itself and was significant in promoting accountability and transparency in government.
Access to and independence of the courts
R (Unison) v Lord Chancellor [2017] UKSC 51
The UKSC found that the new fees regime for employment tribunals was unlawful.
This was on the basis of a constitutional right of access to the courts and tribunal system.
This was seen as inherent to the rule of law.
R (Evans) v Attorney General [2015] UKSC 21
The UKSC found that the AG had contradicted the fundamental principle that the court's decisions couldn't be ignored by anyone including the executive
It also found that the executive's actions were reviewable by the court,
Openness and transparency
The constitutional importance of transparency and open justice was a feature of the case
Kennedy v The Charity Commission [2014] UKSC 20
This case concerned a journalists's Freedom of Information Act request in relation to a charity set up by a controversial politician.
The court's view was that it was the role of the judiciary, through the common law, to determine the application of disclosure requirements in light of the above common law presumption.
Here we can see the centrality of common law constitutional principles in determining an issue.
Jackson v Attorney General [2005] UKHL 56
This case explores the potential friction between the principles of parliamentary supremacy and the rule of law.
The fact that this case went to the HoL and was determined by a full judicial panel is significant in itself.
Jackson's argument was essentially that an Act of Parliament was invalid.
Jackson argued that the Hunting Act 2005 (which banned fox hunting) was invalid because it was passed under the accelerated procedure laid down in the Parliament Act (PA) 1949.
He argued that the PA was invalid because the House of Commons alone had amended the original PA of 1911 and he argued that this wasn't allowed because there was an implied exception to the use of the procedure laid down in the 1911 PA which established an accelerated process of passing legislation that could involve bypassing the HoL.
He said this exception meant that a delegate body (I.e only the HoC) could not increase its own powers on its own authority.
Obiter
The law lords didn't accept Jackson's argument and held that the 1949 Act was a valid form of legislation and therefore so was the Hunting Act.
Majority of the law lords made an important point about an implied exception that they though existed which relates to the democratic safeguard which had been written into the original PA 1911.
Democratic safeguard?
The issue mooted was whether the HoC could extend its own life time (beyond 5 years) by adopting a two-stage process using the accelerated PA procedure.
Firstly by removing the express exception against doing this in s 2(1) PA 1911 and then by passing an Act to increase the lifetime of the current Parliament.
The majority asnwer was that this would not be possible. Therefore, there was an implied exception to this extent.
The reason given was that it was vital to maintain the very important democratic safeguard in s2(1).
Wider obiter discussion
This concern has been heightened by legislation such as the Safety of Rwanda Act 2024.
In Jackson, judges such as Steyn, Hale and Hope looked to the principle of the rule of law as the vital safeguard in establishing a balance in the constitution between its political and legal foundations.
There was a clear judicial concern about the potential constitutional dangers of a system i which a strong central executive can use its majority in Parliament to pass legislation that may undermine fundamental rights and values.
It was therefore seen as the court's role to define the limits (as the guardians of the rule of law).