The subordination of the judiciary to Parliament has long beenequivocal. As a matter of principle, the orthodox doctrine of Parliamentarysovereignty still rules supreme, yet Diceyan theory, the idea that “no personor body is recognised by the law of England as having a right to override orset aside the legislation of Parliament”1has become increasingly obsolete. Constitutional theorists such as Wade supportthis concept, seeing the courts as a judicial barrier and reformistestablishment, one capable of holding Parliament to checks and balances viastatutory interpretation.
This form of interpretation is provisioned forthrough section 3 of the Human Rights Act 1998 and Parliamentary sovereigntyquestioned through the United Kingdom’s accession to the European Union.Moreover, the deconstruction of Parliamentary sovereignty runs parallel to theprogressive development of the court’s powers, which are accentuated most evidentlythrough the Constitutional Reform Act 2005. In establishing a domestic human rights policy to coincide with theEuropean Convention rights, the courts have been given greater scale forstatutory interpretation, providing more flexibility within legal proceedingsand subjecting the legislature to checks or balances which arguably undermineParliamentary sovereignty.
Section 3 of the Human Rights Act 1998 (HRA) mayrequire the court to depart from the legislative intention of Parliament iftheir intention is not in accordance with the European Convention on HumanRights (ECHR). As exemplified through the statute, so far as it is possible todo so, “primary legislation and subordinate legislation must be read and giveneffect in a way which is compatible with the Convention rights”.2Highlighted through the case of Ghaidan V Godin-Mendoza3, the issue centres aroundwhether the courts search for a true meaning or possible meaning oflegislation. Lord Cooke stated that the responsibility has shifted to thecourts in that “Section 3 will require a very different approach to interpretationfrom that to which the UK courts are accustomed.” To find aConvention-compatible meaning of a legislative provision seems to be theoverriding aim of the interpretative process, rather than to ascertain theintention of Parliament. Thus, the courts are looking toward an exterior legalforce outside of the jurisdiction of Parliamentary sovereignty, which itself isinsubordinate.
Section 4 of the HRA furthers the perspective that the courtsare moving toward a more progressive ideology outside of the restraints ofParliamentary sovereignty. The section provides for the remedy of a’declaration of incompatibility’ and is applied where a court cannot interpreta statutory provision in a way that is compatible with a Convention right.Section 4 arguably cannot be said to encroach on Parliamentary sovereigntydirectly, because a declaration does not invalidate the provision concerned, asstated in Section 4(6). In addition, Parliament is not required to takeremedial action; although it can do so under Section 10 of Schedule 2 of theHRA. This means that Parliament’s competence to enact any law is unimpaired,although a powerful restraint has been imposed upon its freedom to interferewith fundamental rights.
Most importantly however, the capacity to issue adeclaration of incompatibility subtly alters the allocation of powers asParliament has invited the judges to tell it that it has acted wrongly bylegislating incompatibly with a Convention right.Whilst amember of the European Union, Parliament arguably substituted the principle ofparliamentary sovereignty and thus their autonomy, in favour of the benefitsprovided to states that were members of the EU. The case of Factortame4legitimises this concept effectively. The dispute centred upon TFEU Art 495,which entitles EU nationals to establish businesses in any EU state.
Contraryto that, the UK Parliament enacted the Merchant Shipping Act 1998 to protectthe British fishing industry by preventing foreign nationals from exploitingBritish fish stocks. The CJEU held eventually that restrictions imposed by theact were incompatible with Art 49, yet the House of Lords noted that thedoctrine of parliamentary sovereignty technically prevents the dismantlement ofprimary legislation. The CJEU however, reminded the Law Lords that thesupremacy principle, established through the European Communities Act 1972,requires national courts to apply EU law in preference to national law, and toignore any national rule of principle, such as Parliamentary sovereignty, thatwould impede domestic courts. The response from the House of Lords wasunprecedented, with them issuing an injunction to suspend the relevant parts ofthe act that were breaching EU law.
As a result, the courts placed pressure onthe constitutional doctrine of Parliamentary sovereignty by acting against itand emphasised their willingness to accept and perhaps progress toward a lesssubordinate legal system. Motivatedby a growing necessity to establish a reformed constitutional body, theConstitutional Reform Act 2005 (CRA) brings theinstitutional relationships between the judiciary and the other branches ofgovernment into line with the changing substantive role of the courts. Thereforms secure the independence of the judiciary by ‘redrawing the relationshipbetween the judiciary and the other branches of government’ and putting it on a’modern footing’6,consequently enriching the courts power. Section 3 of the act makes statutoryprovision for judicial independence by noting that the Lord Chancellor andother ministers of the crown “must uphold the continued independence of thejudiciary”7.
The significance of this relates centrally to the constitutional function ofjudges in interpreting and applying law outside the constraints of internalgovernment departmental policies. Judges and adjudicators not perceived asindependent are fatally compromised in the eyes of the public, particularly bythose whose disputes are being resolved by them. In providing a statutory basisto ensure judicial independence, a separation of powers can be assumed,aligning directly to the United Kingdom’s unwritten constitutional doctrine. Aseparation of powers is established further through the CRA’s modification ofthe office of the Lord Chancellor – the office reformed to remove the abilityof the holder to act as both a government minister and a judge, an arrangementthat ran contrary to the idea of separation of powers.The reform was motivated by concerns that the historical admixture oflegislative, judicial, and executive power held through one position, might notconform with the requirements of Article 6 (paragraph 1) of the European Convention on Human Rights, because a judicial officer who has legislative orexecutive power is likely not to be considered sufficiently impartial toprovide a fair trial.
Thus, the implementation of a new Lord Chief Justicegrants the courts arguably greater power, seeing as they no longer are distinctivelyconjoined with legislative or executive matters and are allocated as a separatebody with a governing head. Whereas the provision for the reform of the post ofLord Chancellor and the judicial appointments process involve an explicit relocationof power between each branch of government, the provisions establishing the newSupreme Court, in theory, do not. The new court exercises the same formalpowers as the House of Lords and maintains the devolution powers of theJudicial Committee of the Privy Council, as outlined in section 40. On thatbasis, therefore, the creation of the new Supreme Court is the least radicalaspect of the constitutional reforms. However, the removal of the top courtfrom the legislature and its reformation as an autonomous institution, islikely to have a significant effect on its constitutional role. Exactly how theSupreme Court will progress is uncertain – what is clear is that a trend isdeveloping around the world regarding the increasing power and authority ofSupreme Courts. The creation of a new and autonomous Supreme Court in the UKtherefore, housed in its own building with a distinct identity, suggests alikelihood that the court will follow said trend. Inanalysing the future implications of the Constitutional Reform Act and itsinfluence on the power of the courts, evidence suggests that the Act’sassociation with the separation of powers and judicial autonomy will grant theUnited Kingdom’s branches of government with a new form of dynamism that isbeneficial for relinquishing subordination.
By deviating from theconventionality of Parliamentary Sovereignty and providing the courts with amore structured and active role, the legislation has ensured that the judiciaryhas adequate resources and support to develop its power. In turn, theprovisions of the Act would ease the courts’ transition into an increasinglylegislative role, which supports the interpretation that the CRA is allowingthe judiciary to acquire confidence to become a more dominant aspect of thegovernment. Moreover, the stipulations of the Constitutional Reform Act play asignificant role in establishing clearer boundaries between the branches ofgovernment as they take the negotiations and inner workings of the legislativeprocess from an isolated source of power into the public arena. The governancestructure of the judiciary, the role of the Supreme Court and the judicialappointments process are areas of vital constitutional importance that benefitfrom the scrutiny that the courts can provide.
By adopting these roles, thecourts can prove that they can undertake additional constitutionalresponsibilities, which also improves public opinion in the realm of constitutionallaw. In conclusion then, I wouldargue that it is negligent to disregard Parliamentary sovereignty as aprinciple – the majority of ‘quasi-constitutional’powers of the Supreme Court have been given to the court explicitly byParliament – yet there are grounds to debate, due to mentioned factors such asthe CRA and HRA, the expanding nature of the courts powers in relation to a newconstitutional format. The implementation of statutory interpretationprovisioned for in the HRA enables the courts to analyse and re-assembleprevious statutes to fit in accordance with convention rights, rather than tofollow directly the terminology used by Parliament. The establishment of a new LordChief Justice and an independent judiciary in the CRA coincides with the separationof powers doctrine – a fundamental legal principle within the United Kingdomthat ensures no constitutional body becomes too powerful and thus each bodymust remain separate.
The enactments made within the CRA provide a statutoryprovision to this principle, enhancing the courts standing as a separate constitutionalauthority. The effect of the reconstruction of the judiciary asinstitutionally separate from, but functionally interconnected with the otherbranches of government, will ultimately move the Supreme Court closer to adistinct third branch of government, thus allowing them to become a strongerand more powerful institution. 1 Introduction to the Study of the Law of theConstitution Eighth Edition, 1915 (LibertyClassics,1982), pp. 3-4.
2 Human Rights Act1998 s3. (1)3 Ghaidan V Godin-Mendoza2004 UKHL 30 4 R v Secretary ofState for Transport, ex parte Factortame (no.2) 1 AC 6035 Public Law – CustomPublishing6 K.
Malleson’Modernising the Constitution: Completing the Unfinished Business’ LegalStudies Spring 2004. 7 ConstitutionalReform Act 2005 s3 (1)