To what extent can judicial subservience be held to represent a 'new settlement' with regard to constitutional authority in England and Wales?

            The principle of the 'sovereignty of Parliament'[1] was popularised by A.V. Dicey in the late 19th century.[2] He advocated a traditional absolutist conception of Parliamentary sovereignty, something also expressed by Jean Bodin some three centuries previous who conceived sovereignty as an indivisible and supreme power, demonstrated by its capacity to legislate without the consent of anyone else.[3]  Dicey's thesis comprises of three main tenets: Parliament can make or unmake any law; Parliament cannot bind its successor; and valid Acts of Parliament cannot be judicially questioned. According to this conception, therefore, it can be inferred that the judiciary are somewhat 'forced' into subservience.

          However, the principle of Parliamentary sovereignty is not entrenched in any statute, suggesting its continued existence is dependent upon common law recognition. This is supported by Lord Steyn's claim that "The judges created this principle..." and that "...it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism."[4] This alludes to the 'new settlement' that has formed as a result of modern challenges to Parliamentary sovereignty.

          In Jackson, Lord Steyn and Lord Hope both made notable remarks referring to such challenges. Lord Steyn alleged that "The classic account given by Dicey... can now be seen to be out of place in the modern United Kingdom."[5] Allison agrees with this, stating his conclusion "would seem unavoidable".[6] Lord Hope elaborated by claiming "...Parliamentary sovereignty is no longer, if it ever was, absolute. ...gradually but surely... the absolute legislative sovereignty of Parliament... is being qualified."[7] Although both continued to advocate the dominance of Parliamentary sovereignty, they nevertheless alluded to the modern challenges to the principle.

          Lord Phillips alleged that "The role of the judiciary has changed particularly as a result of European law and the requirement for judges to consider... [whether] parliamentary legislation is compatible with the human rights convention."[8] This refers primarily to S3 and S4 of the Human Rights Act 1998 (HRA); a statute described by Lord Steyn as creating "a new legal order"[9] which could be attributed to it achieving a positive assertion of rights in domestic law; something unprecedented in the UK.

          Lord Steyn described S3 as a strong "interpretative obligation"[10], although he did later modify his position to some extent.[11] This section connotes judicial subservience; some would argue to the European Convention on Human Rights (ECHR), and others to Parliament, as they enacted the statute responsible for its incorporation into UK domestic law. In Ghaidan[12], the majority of Law Lords favoured a rights-compatible interpretation under S3, believing it to be the court's duty to remove the discrimination, instead of invoking S4 and leaving it for Parliament. This can be seen as establishing a new basis of judicial interpretation contrary to Lord Woolf's view that "the courts should not treat section 3 as a licence to intrude into Parliament's role."[13], and appears to evidence a clear alteration to constitutional authority in the UK.

          S4 allows for a 'declaration of incompatibility' to be made, as occurred in Bellinger. Here, Lord Hope stated that the issue was one for a wider policy determination which only the Parliament should address,[14] contrasting Ghaidan. As well as providing for a more transparent acknowledgement of the separation of powers, such a declaration does not affect the validity of the Act in question and arguably best preserves sovereignty by allowing Parliament to have the final arbitration. However, S3 does not highlight any primary legislation as flawed or incompatible with the ECHR and therefore does not undermine the work of Parliament. So, although both sections are not necessarily blatantly contrary to Parliamentary sovereignty, the very nature of their existence provides a strong argument for a 'new settlement' now existing.

          The European Communities Act 1972 (ECA) has a more definitive impact by achieving full incorporation of EU law through S2(1), as evidenced in Van Gend en Loos[15], as well as giving full effect to the case-law of the Court of Justice of the European Union through S3 of the Act. Regarding incompatibility, the Act provides for the supremacy of EU law even where Parliament has legislated with clear and unambiguous intent. In reference to such conflicts, Lord Denning declared "...it is our bounden duty to give priority to Community law."[16] Therefore, Acts of Parliament can be set aside for incompatibility; a capacity which supersedes that under S4 of the HRA. The Factortame litigation demonstrates the supremacy of EU law and the erosion of Dicey's absolutist conception simultaneously, as indefinitely setting aside the Merchant Shipping Act 1988 can be deemed contrary to his principle that no institution can question the validity of an Act of Parliament. It would appear absurd to suggest that providing for matters of EU law to be domestically justiciable, as well as superior to Acts of Parliament, has not affected constitutional authority in the UK, particularly as "EU membership has placed constraints on the power of Parliament to legislate".[17]

          Wade believes a 'constitutional revolution' occurred as a result of the Act consequently transferring sovereignty to the EU[18], something hugely important as it may legislate contrary to the will of Parliament. Alternatively, an evolutionary view emerged, supported by Trevor Allen, John Laws and Mike Gordon, amongst others; the latter describing it as "far from revolutionary".[19] They make the claim that Parliament's ability to repeal the Act retains their sovereignty. These 'evolutionists' do, however, accept it as a legal view only and acknowledge its political impossibility. In claiming that the "...European Communities Act did not alter the existing legal principle that what Parliament did in incorporating European law, Parliament can also undo"[20]; Grieve is neglectful to this reality.

          Lord Bridge declared that "...whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary."[21] Bogdanor made a similar allegation but also claimed it has resulted in its loss of legal omnipotence.[22] Baroness Hale furthered Lord Bridge's point by stating that "Parliament has also, for the time being at least, limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998".[23] What is notable here is her inclusion of 'for the time being at least' as this implicates the aforementioned revolutionary view relating to Parliament's capacity to repeal.

          This admits the notion of constitutional statutes; something widely considered to have derived from Lord Justice Laws in Thoburn[24] in order to promulgate the significance of the ECA, and that such statutes may not be impliedly repealed. This can potentially be construed as Parliament binding its successors. This was noted by Wade who, in reference to the ECA, stated that "Parliament can bind its successors. If that is not revolutionary, constitutional lawyers are Dutchmen".[25] This illustrates how these constitutional statutes in themselves are a qualification upon Dicey's absolutist conception, as although Dicey declared Parliament free to make or unmake any law, the likely political ramifications of expressly repealing them would be so immense that they must be considered deeply entrenched within the constitution.

          Devolution seemingly preserves Parliamentary sovereignty. Although this may appear paradoxical, its justification derives from the same aforementioned argument regarding Westminster's theoretical ability to repeal the various Acts, as well as to continue legislating even on devolved matters. The Northern Ireland Act 1998 (NIA) and the Scotland Act 1998 (SA) both support this retention of sovereignty with their respective provisions. S5(6) of the NIA "does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland", whilst S28(7) of the SA "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland." The former can be evidenced by Westminster suspending the Executive of Northern Ireland for approximately three months in 2000. Therefore, although the devolution of certain legislative powers would seem coextensive with a loss of sovereignty, these express provisions suggest otherwise.

          Whether the nature of constitutional authority in the UK has changed was effectively answered by Parliament enacting S18 of the European Union Act 2011. Often referred to as the 'sovereignty clause'; this is likely to be the closest Parliament ever comes to declaring themselves sovereign. This provision strongly connotes Westminster as having come to the realisation that perhaps a 'new settlement' is emerging, or further yet, has already emerged. S6(3) of the HRA supports this, as by specifically excluding itself from its definition of a public authority, Parliament is seeking to maintain its sovereignty by preventing itself from being accused of acting unlawfully under the Act. It can therefore be deduced from these attempted retentions of sovereignty that constitutional authority in the UK has changed.

          To say that the judiciary were ever 'forced' into subservience is controversial. As Lord Woolf noted; "...ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold”.[26] Nevertheless, it is certainly plausible to suggest that a 'new settlement' now exists in the UK following the recent, albeit sporadic, constitutional reforms.

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[1] http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63305.htm

[2] A.V. Dicey, Introduction to the Study of the Constitution (1885)

[3] Jean Bodin: Six Books of the Commonwealth (1576)

[4] Lord Steyn at 102 in R (Jackson) v Attorney General [2005] 4 All ER 1253

[5] ibid

[6] J. W. F. Allison, History to Understand, and History to Reform, English Public Law – The Cambridge Law Journal, 72 [2013], pp 526–557

[7] Lord Hope at 104 in R (Jackson) v Attorney General [2005] 4 All ER 1253

[8] Lord Phillips, The Guardian, 19th Oct 2011

[9] Lord Steyn at 102 in R (Jackson) v Attorney General [2005] 4 All ER 1253

[10] Lord Steyn at 44 in R v A no.2 [2001] UKHL 25

[11] Lord Steyn at 59 in R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837

[12] Ghaidan v Godin-Mendoza [2004] UKHL 30

[13] Lord Woolf, The Rule of Law and a Change in the Constitution - The Cambridge Law Journal, 63 [2004], pp 317-330

[14] Lord Hope at 67 in Bellinger v Bellinger [2003] 2 All ER 593

[15] Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1

[16] Lord Denning MR at 329 in Macarthys Ltd v Smith [1979] 3 All ER 325

[17] Tom Mullen, Reflections on Jackson v Attorney General, (2007) 27 Legal Studies 1

[18] H.W.R Wade, ‘Sovereignty: Revolution or Evolution?’ (1996) 112 LQR 568

[19] http://ukconstitutionallaw.org/2012/01/12/mike-gordon-the-european-union-act-2011/

[20] Dominic Grieve MP QC, 25th Oct 2012 (found on https://www.gov.uk/government/speeches/parliament-and-the-judiciary)

[21] Lord Bridge, Factortame litigation, [1991] 1 AC 603, 658-659

[22] Vernon Bogdanor, The New British Constitution, (Hart 2009)

[23] Baroness Hale at para. 159 in R (Jackson) v Attorney General [2005] 4 All ER 1253

[24] Thoburn v Sunderland City Council [2002] EWHC 195                            

[25]  H.W.R Wade, ‘Sovereignty: Revolution or Evolution?’ (1996) 112 LQR 568

[26] Lord Woolf MR, 'Droit Public - English Style' [1995] Public Law 57, 69