The subordination of the judiciary to Parliament has long been
equivocal. As a matter of principle, the orthodox doctrine of Parliamentary
sovereignty still rules supreme, yet Diceyan theory, the idea that “no person
or body is recognised by the law of England as having a right to override or
set aside the legislation of Parliament”1
has become increasingly obsolete. Constitutional theorists such as Wade support
this concept, seeing the courts as a judicial barrier and reformist
establishment, one capable of holding Parliament to checks and balances via
statutory interpretation. This form of interpretation is provisioned for
through section 3 of the Human Rights Act 1998 and Parliamentary sovereignty
questioned through the United Kingdom’s accession to the European Union.
Moreover, the deconstruction of Parliamentary sovereignty runs parallel to the
progressive development of the court’s powers, which are accentuated most evidently
through the Constitutional Reform Act 2005.

In establishing a domestic human rights policy to coincide with the
European Convention rights, the courts have been given greater scale for
statutory interpretation, providing more flexibility within legal proceedings
and subjecting the legislature to checks or balances which arguably undermine
Parliamentary sovereignty. Section 3 of the Human Rights Act 1998 (HRA) may
require the court to depart from the legislative intention of Parliament if
their intention is not in accordance with the European Convention on Human
Rights (ECHR). As exemplified through the statute, so far as it is possible to
do so, “primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights”.2
Highlighted through the case of Ghaidan V Godin-Mendoza3, the issue centres around
whether the courts search for a true meaning or possible meaning of
legislation. Lord Cooke stated that the responsibility has shifted to the
courts in that “Section 3 will require a very different approach to interpretation
from that to which the UK courts are accustomed.” To find a
Convention-compatible meaning of a legislative provision seems to be the
overriding aim of the interpretative process, rather than to ascertain the
intention of Parliament. Thus, the courts are looking toward an exterior legal
force outside of the jurisdiction of Parliamentary sovereignty, which itself is
insubordinate. Section 4 of the HRA furthers the perspective that the courts
are moving toward a more progressive ideology outside of the restraints of
Parliamentary sovereignty. The section provides for the remedy of a
‘declaration of incompatibility’ and is applied where a court cannot interpret
a statutory provision in a way that is compatible with a Convention right.
Section 4 arguably cannot be said to encroach on Parliamentary sovereignty
directly, because a declaration does not invalidate the provision concerned, as
stated in Section 4(6). In addition, Parliament is not required to take
remedial action; although it can do so under Section 10 of Schedule 2 of the
HRA. 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. Most importantly however, the capacity to issue a
declaration of incompatibility subtly alters the allocation of powers as
Parliament has invited the judges to tell it that it has acted wrongly by
legislating incompatibly with a Convention right.

Whilst a
member of the European Union, Parliament arguably substituted the principle of
parliamentary sovereignty and thus their autonomy, in favour of the benefits
provided to states that were members of the EU. The case of Factortame4
legitimises this concept effectively. The dispute centred upon TFEU Art 495,
which entitles EU nationals to establish businesses in any EU state. Contrary
to that, the UK Parliament enacted the Merchant Shipping Act 1998 to protect
the British fishing industry by preventing foreign nationals from exploiting
British fish stocks. The CJEU held eventually that restrictions imposed by the
act were incompatible with Art 49, yet the House of Lords noted that the
doctrine of parliamentary sovereignty technically prevents the dismantlement of
primary legislation. The CJEU however, reminded the Law Lords that the
supremacy principle, established through the European Communities Act 1972,
requires national courts to apply EU law in preference to national law, and to
ignore any national rule of principle, such as Parliamentary sovereignty, that
would impede domestic courts. The response from the House of Lords was
unprecedented, with them issuing an injunction to suspend the relevant parts of
the act that were breaching EU law. As a result, the courts placed pressure on
the constitutional doctrine of Parliamentary sovereignty by acting against it
and emphasised their willingness to accept and perhaps progress toward a less
subordinate legal system.  

 

Motivated
by a growing necessity to establish a reformed constitutional body, the
Constitutional Reform Act 2005 (CRA) brings the
institutional relationships between the judiciary and the other branches of
government into line with the changing substantive role of the courts. The
reforms secure the independence of the judiciary by ‘redrawing the relationship
between 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 statutory
provision for judicial independence by noting that the Lord Chancellor and
other ministers of the crown “must uphold the continued independence of the
judiciary”7.
The significance of this relates centrally to the constitutional function of
judges in interpreting and applying law outside the constraints of internal
government departmental policies. Judges and adjudicators not perceived as
independent are fatally compromised in the eyes of the public, particularly by
those whose disputes are being resolved by them. In providing a statutory basis
to ensure judicial independence, a separation of powers can be assumed,
aligning directly to the United Kingdom’s unwritten constitutional doctrine. A
separation of powers is established further through the CRA’s modification of
the office of the Lord Chancellor – the office reformed to remove the ability
of the holder to act as both a government minister and a judge, an arrangement
that ran contrary to the idea of separation of powers.
The reform was motivated by concerns that the historical admixture of
legislative, judicial, and executive power held through one position, might not
conform with the requirements of Article 6 (paragraph 1) of the European Convention on Human Rights, because a judicial officer who has legislative or
executive power is likely not to be considered sufficiently impartial to
provide a fair trial. Thus, the implementation of a new Lord Chief Justice
grants the courts arguably greater power, seeing as they no longer are distinctively
conjoined with legislative or executive matters and are allocated as a separate
body with a governing head. Whereas the provision for the reform of the post of
Lord Chancellor and the judicial appointments process involve an explicit relocation
of power between each branch of government, the provisions establishing the new
Supreme Court, in theory, do not. The new court exercises the same formal
powers as the House of Lords and maintains the devolution powers of the
Judicial Committee of the Privy Council, as outlined in section 40. On that
basis, therefore, the creation of the new Supreme Court is the least radical
aspect of the constitutional reforms. However, the removal of the top court
from the legislature and its reformation as an autonomous institution, is
likely to have a significant effect on its constitutional role. Exactly how the
Supreme Court will progress is uncertain – what is clear is that a trend is
developing around the world regarding the increasing power and authority of
Supreme Courts. The creation of a new and autonomous Supreme Court in the UK
therefore, housed in its own building with a distinct identity, suggests a
likelihood that the court will follow said trend. In
analysing the future implications of the Constitutional Reform Act and its
influence on the power of the courts, evidence suggests that the Act’s
association with the separation of powers and judicial autonomy will grant the
United Kingdom’s branches of government with a new form of dynamism that is
beneficial for relinquishing subordination. By deviating from the
conventionality of Parliamentary Sovereignty and providing the courts with a
more structured and active role, the legislation has ensured that the judiciary
has adequate resources and support to develop its power. In turn, the
provisions of the Act would ease the courts’ transition into an increasingly
legislative role, which supports the interpretation that the CRA is allowing
the judiciary to acquire confidence to become a more dominant aspect of the
government. Moreover, the stipulations of the Constitutional Reform Act play a
significant role in establishing clearer boundaries between the branches of
government as they take the negotiations and inner workings of the legislative
process from an isolated source of power into the public arena. The governance
structure of the judiciary, the role of the Supreme Court and the judicial
appointments process are areas of vital constitutional importance that benefit
from the scrutiny that the courts can provide. By adopting these roles, the
courts can prove that they can undertake additional constitutional
responsibilities, which also improves public opinion in the realm of constitutional
law.

 

               In conclusion then, I would
argue that it is negligent to disregard Parliamentary sovereignty as a
principle – the majority of ‘quasi-constitutional’
powers of the Supreme Court have been given to the court explicitly by
Parliament – yet there are grounds to debate, due to mentioned factors such as
the CRA and HRA, the expanding nature of the courts powers in relation to a new
constitutional format. The implementation of statutory interpretation
provisioned for in the HRA enables the courts to analyse and re-assemble
previous statutes to fit in accordance with convention rights, rather than to
follow directly the terminology used by Parliament. The establishment of a new Lord
Chief Justice and an independent judiciary in the CRA coincides with the separation
of powers doctrine – a fundamental legal principle within the United Kingdom
that ensures no constitutional body becomes too powerful and thus each body
must remain separate. The enactments made within the CRA provide a statutory
provision to this principle, enhancing the courts standing as a separate constitutional
authority. The effect of the reconstruction of the judiciary as
institutionally separate from, but functionally interconnected with the other
branches of government, will ultimately move the Supreme Court closer to a
distinct third branch of government, thus allowing them to become a stronger
and more powerful institution.

 

 

 

 

 

1 Introduction to the Study of the Law of the
Constitution Eighth Edition, 1915 (LibertyClassics,
1982), pp. 3-4.

2 Human Rights Act
1998 s3. (1)

3 Ghaidan V Godin-Mendoza
2004 UKHL 30

 

4 R v Secretary of
State for Transport, ex parte Factortame (no.2) 1 AC 603

5 Public Law – Custom
Publishing

6 K. Malleson
‘Modernising the Constitution: Completing the Unfinished Business’ Legal
Studies Spring 2004.

7 Constitutional
Reform Act 2005 s3 (1)