Constitutional Crises- Dicey's concept of parliamentary sovereignty is still relevant

Dicey and Parliamentary Sovereignty

Dicey's  argument that parliamentary sovereignty in the UK constitution means that parliament has:

' the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament.' [1]

Image Source: http://thoughcowardsflinch.com/2010/03/23/the-tories%E2%80%99-secret-plans-for-the-end-of-parliamentary-sovereignty/

 First to be considered is the reason Dicey believed parliamentary sovereignty to be this way. For the sake of this article it will be assumed that Dicey intended his definition to be normative in that he was describing how parliamentary sovereignty should be ideally. This article will argue that Dicey's view of parliamentary sovereignty can still be reconciled with constitutional reality.

Since Dicey was writing, the European Communities Act[2], judicial review and the Human Rights Act[3] have been used to argue that his view of parliamentary sovereignty cannot be reconciled with constitutional reality. This article will argue that Dicey's view of parliamentary sovereignty is still accurate in constitutional reality on the grounds that the UK parliament signed the European Communities Act, judicial review reinforces parliamentary sovereignty and the Human Rights Act does not actually make contradictory acts of UK parliament invalid.

The relevance of the European Communities Act

Many would argue that t the European Communities Act could be seen as  evidence that suggests that parliament no longer has ‘the right to make or unmake any law whatever’[4] as Dicey proposes but instead proves that parliament can in fact be overruled by EU law.

In response to this it can be argued that Dicey is in fact right in saying that ‘parliament can make and unmake’[5] any laws because it was parliament who signed the European Communities Act voluntarily and so the sovereignty they gave to the EU can be retained at parliament’s will therefore they can regain absolute sovereignty.  The case of Thoburn[6] even goes do far as to suggest that the European Communities Act 1970 was created by Parliament. So adherence to EU law is merely courts following the will of Parliament. Also Dicey suggests that nobody has the right to override the rules of parliament which again, despite the European Communities Act, is true in constitutional reality. Although the EU can say that UK acts of parliament do not conform to EU legislation it is the parliament themselves who choose to change acts of Parliament in order to make them comply with EU law. If they did not do this then they would be in breach of the European Communities Act but whilst this is not a favourable outcome it is possible.

The point to be noted is that all of the choices related to the transfers of sovereignty due to the European Communities Act were made voluntarily by parliament and can be unmade if parliament wishes. This is explained in the case of Factortame [7] which exemplifies, through the courts suspending the Merchant Shipping Act 1998, how national courts can strike down Act of Parliament's that contravene EU law. In his judgement Lord Bridge explained how EU law should override acts of parliament because it was parliament’s decision to join the European Community and parliament’s decisions must be respected. Therefore Dicey was completely right in saying that parliament has: ‘the right to make or unmake any law’[8]

Judicial Review and judge's creativity

Another counterpoint to the argument that Dicey’s account of parliamentary sovereignty can be reconciled with constitutional reality is one which occurs as a result of judicial review. This counterpoint is based on the views of Paul Craig[9] who argues that judicial review is about judge’s creativity and not parliamentary sovereignty. Craig’s argument counters the argument in this essay by claiming that the content of judicial review is about judges using their creativity to make laws to govern public bodies and stop them acting unfairly. If this is true then Dicey’s account of parliamentary sovereignty becomes very difficult to reconcile with constitutional reality.

Fortunately it can easily be argued that judicial review does in fact reinforce Dicey’s view that parliament does have complete sovereignty in the UK. The strongest argument is based on the ideas of Professor Christopher Forsyth who argued that:

 ‘The judicial achievement in creating modern law did not take place in a constitutional vacuum. It took place against the background of sovereign legislature that could have intervened at any moment,’[10]

This demonstrates how parliamentary sovereignty is the basis of judicial review. It is a strong point that judicial review cannot be used to question acts of parliament and if courts question Acts of Parliament, in judicial review cases, all they can do is request that parliament re-think the act. Courts can in no way force parliament to change an act. Judge’s creativity in judicial review cases is not about overriding parliamentary sovereignty but is actually about the judges extending the law to cover situations that parliamentary sovereignty does not cover. In this sense, judicial review is actually supporting Dicey’s view that parliament have ultimate power within the constitution.  By having this system whereby the courts cannot question parliament’s act and decisions constitutional reality is actually very compatible with Dicey’s view that no one can override parliamentary laws.

      The Human Rights Act 1998

The final counterpoint to the argument that Dicey’s account of parliamentary sovereignty can be reconciled with constitutional reality is a point put forward after examining the Human Rights Act. It can be argued that the Human Rights Act 1998 overrides parliamentary sovereignty is the UK in a way that Dicey deems impossible. Article 6, section 2 of the TEU) [11] imposes an obligation on Member States to respect the rights arising from the European Convention of Human Rights.

One could interpret this to mean that the Human Rights Act is part of law in member states of the EU because EU law has supremacy over national law and so on these grounds Dicey would be inaccurate in saying: ‘no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament.’ [12] However it could be argued that the Human Rights Act supports the acts which the supreme UK parliament has already created. If this is the case then EU law is merely a supporting extension of the UK law which was created by the sovereign UK parliament.  This is the view taken by Lord Millet in Ghaidan v Godin-Mendoza where he judges: ‘Sections 3 and 4 of the human rights act were carefully crafted to preserve the existing constitutional doctrine.’[13] This appears to mean that the Human Rights Act was created as a result of parliamentary sovereignty to conform and not override rights that already existed as a result of acts passed by parliament. If this is the case then Dicey was right. Subsequently this means that every counterpoint mentioned in this essay can be overcome and that the argument that Dicey’s account of parliamentary sovereignty can still be reconciled with constitutional reality is a very strong.

      Conclusion

To conclude, after a concise examination of the possible flaws with the argument, it can be reasonably concluded that Dicey’s account of parliamentary sovereignty can still be reconciled with constitutional reality. The counterpoints that the European Communities Act, judicial review and the Human Rights Act undermine Dicey’s account of parliamentary sovereignty are all very clever arguments, however they can be overcome by looking more closely at the fundamental choices that parliament has made (for example voluntarily signing the European Communities Act). It is when we look closer at the intricacies of the European Communities Act, judicial review and the Human Rights Act that we can see that parliamentary sovereignty was not actually a victim of these concepts but something that they all support and conform to.

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[1]  AV Dicey ,Introduction to the study of the law of the constitution  (first published 1885, London: Macmillan & Co 1959) p 39

[2] European Communities Act 1972

[3] Human Rights Act 1998

[4] Dicey, cited above at n1 at p39

[5] Dicey, cited above at n1

[6] Thoburn v Sunderland City Council [2002] All ER (D) 223

[7] R v Secretary of State for Transport, ex parte Factortame Ltd and others   [1999] All ER (D) 1173

[8] Dicey, cited above at n1

[9] P.Craig, Britain in the European Union’ in J .Jowell and D.Oliver The changing constitution p 91-99

[10]  Christopher Forsyth,  Of Fig leaves and fairy tales: The Ultra Vires doctrine, the sovereignty of parliament and judicial review (first published 1996) p 122

[11] TEU (treaty of Maastrict 1992) s2

[12]Dicey, cited above at n1

[13] Ghaidan v Godin-Mendoza [2004] UKHL 30 [57]

Human Rights Act- the perfect combination of rights protection and judge power

What is the Human Rights Act?

The Human Rights Act 1998 (HRA)[1] was created using some of the rights set out in the European Convention on Human Rights (ECHR) and seeks to preserve the fundamental human rights of British citizens. This popular argument that the HRA excessively empowers judges in order to protect fundamental rights demands an examination of two opposing positions. First in order for the HRA to effectively protect human rights judges must be excessively empowered and second the excessive empowerment of judges is not necessary for the HRA to achieve the protection of human rights. This article argues the latter.

Image source: UK Human Rights Blog

Le Sueur describes human rights in their most basic form as ‘basic, inviolable, fundamental and constitutional.’[2] The HRA was formed from this basis in order to protect British citizen’s human rights and ‘bring rights home’[3].” Gardbaum explains how the HRA balances:  ‘Recognition and effective protection of certain fundamental rights or civil liberties’ and  ‘a proper distribution of functions and decision making power between courts and the elected branches of government.’[4]

       Excessive power to judges?

From a Diceyan viewpoint ‘excessive power’ would suggest that judges no longer just fulfil their function as interpreters of statute and implementers of the law but go on to infringe on the powers of the executive or the judiciary. Assuming this is what is meant by ‘excessive power’ then section 3 of the HRA could be interpreted to be a grant of excessive power to judges. In Re S[5] Lord Nicholls famously said that judges had ‘crossed the boundary between interpretation and amendment’ if this is true then this is a good example of judges being given excessive power. However there has been much criticism of this view, section 3 of the HRA clearly states judges should ‘interpret’ and not amend statute ‘so far as is possible’. The wording of the statute clearly states that the judges cannot change statute to the extent that parliament’s intention is no longer evident.

This article advocates the argument that the HRA effectively protects human rights without giving the judges excessive power.  The role of the judges in the implementation of the HRA section 3 is to interpret legislation ‘so far as is possible’[6] to make it compatible with the ECH. Many believe that this crosses the boundary between interpretation and amendment. Ewing, Gearty[7] and Klug all argue that section 3 damages parliamentary sovereignty. Klug said R v A[8]: ‘turned parliamentary intention on its head.’[9] If so, there are implications for parliamentary sovereignty because judges would effectively be legislating. A strong counter point to this would be Lord Slynn’s point in R v A[10] ‘The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty.’ Kavanagh proposes that when using section 3 judges should consider social policy, parliament’s response to the decision, justice for the individual in the case remedy and the jurisprudence of the ECHR[11]. This provides factors for judges to think about which prevents them having ‘excessive power’ under the HRA and means that the HRA is a good illustration of how human rights can be protected without giving judges excessive power. Gardbaum counters by explaining that section 3 is excessive power for judges and that section 4 should be used instead as it allows parliament to ultimately change the law to be convention compatible. To overcome this criticism it must be remembered the HRA itself is an act of parliament and so by giving judges any power it can be assumed that it is acceptable to parliament to allow them to interpret statutes in order to make them convention compatible. Also statutes cannot be interpreted in a way that does not go ‘with the grain’[12] of the statute and so parliamentary sovereignty is preserved.

Section 4 of the Human Rights Act 1998

Many academics believe section 4 of the HRA reduces the separation of powers by allowing judges to declare statute incompatible with the convention rights because in response to a section 4 declaration, section 10 allows a fast track remedial procedure to take place. Many believe that this is a Henry VIII clause that contradicts parliamentary sovereignty as it allows government ministers to amend statute by using a declaration of incompatibility[13]. Young counters  this point by explaining that section 10 only contradicts parliamentary sovereignty when one interprets the Diceyan concept of implied repeal to mean that future legislation partially impliedly repeals the prospective Henry  VIII clauses and that section 10 can overturn legislation enacted post HRA. The decision in Thoburn[14] (future legislation does not implied repeal prospective Henry VIII clauses) should be used in all section 10 cases in order to ensure that section 10 does not override parliamentary sovereignty[15].  Section 4 affirms the separation of powers by allowing parliament to respond to the judge’s decision. A premise that is supported by legislative evidence as parliament has amended statute in 11 out of the 19 declarations of incompatibility cases so far.[16] This has increased dialogue between the judiciary and parliament because both are more aware of what their counterparts are doing, therefore the powers remain distinct and the transparency of the different branches of the legal system is maintained which ultimately leads to the rule of law being upheld. Therefore judges have not been excessively empowered and section 4 is what restricts judges having excessive power because it affirms the separation of powers, helps to uphold the rule of law and supports dialogue between the judiciary and parliament. Jack Straw commented through that HRA section 4 ‘the government thought it was important to enshrine parliament’s sovereignty of the bill’[17]  Parliament effectively used its sovereignty to allow judges to bring incompatible statutes to parliament’s attention  because they deemed this to be the best way to protect rights. It was parliament’s intention and so the judges cannot be said to be excessively empowered.

      Conclusion

To conclude, the HRA is an illustration of how to effectively protect rights without ‘excessively empowering’ judges. This view is opposed because the popular tabloids’ report negatively on the HRA[18]this puts pressure on politicians to change the HRA and perhaps repeal it and introduce a bill of rights[19].  Overall this has led to academic response[20] that is a powerful influence on the public opinion about the power of judges under the HRA and rights protection in general. By removing the bias caused by the media we can see the HRA is an ingenious act of parliament which allows the British constitution’s protection of rights to evolve in a way that is controlled by parliament’s intentions. Section 3 maintains parliamentary sovereignty but still allows statutes to be made convention compatible without parliament having to spend time and money repealing and amending all questionable statutes. Section 4 supports section 3 by allowing incompatible statutes to be bought to parliament’s attention but still preserve the separation of powers, parliamentary sovereignty and the rule of law by only allowing parliament to decide whether or not statute is amended and allowing a declaration of incompatibility to be made without statute being deemed invalid.

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[1] Human Rights Act 1998

[2] Le Sueur, Sunkin ,  Murkens, Public Law text cases and materials (First published 2010, Oxford University Press)175

[3] Secretary of State for the Home Department, Rights Bought Home: The Human Rights Bill (CM 3782 Oct 1997)

[4] S. Gardbaum “How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment” (2011) 74 Modern Law Review 195

[5] Re S [2002] UKHL 10 (40)

[6] Human Rights Act 1998 3 (1)

[7] K. Ewing, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern Law Review 79

[8] R v A [2005] UKHL 25      

[9] Klug, Judicial deference under the Human Rights Act 1998  EHRLR 125,128

[10] R v A [2001] UKHL 25

[11] A. Kavanagh, ‘Unlocking the Human Rights Act: The "Radical" Approach to Section3(1) Revisited’ (2005) European Human Rights Law Review 259

[12] Ghaidan v Mendoza [2004] UKHL 30 (33)

[13] Parte H [2001] EWCA Civ 415, Baiai [2008] UKHL 53 and Thompson [2010] UKSC 17

[14] Thoburn v Sunderland City COUNCIL [2003] QB 51

[15] Young, Parliamentary Sovereignty and the human rights act (First published 2008, Hart Publishing) 6-8

[16] Ministry of Justice, Responding to human rights judgments, Annex A: Declarations of Incompatibility

[17] Jack Straw Hansard HC 21/10/98 Col 1300

[18] The Sun 09/02/11

[19] D.Cameron Speech (26/06/06)

[20] Hiebert, Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?, Oxford Law Journals, vol 4 issue 1

CJEU's rookie error- rejecting the direct effect of directives

Dear Readers,
My apologies for not posting recently, I have been snowed under with mini-pupillage applications. However I have some very interesting articles ready for publication which I will be releasing over the coming weeks.
Warning- the following article is very legally dense however it is written for someone with little or no legal knowledge so do not be put off if you are not educated in the law.


In this article I am going to consider the problem the CJEU faces in rejecting the horizontal direct effect of directives, why they made this decision and why it has been criticized. I will analyse the concepts of harmonious interpretation and widening the notion of the state as solutions to the problem that rejecting horizontal direct effect of directives raised and argue that neither are effective solutions. Finally I will conclude that both harmonious interpretation and widening the notion of the ‘state’ should be abolished as they are ineffective and create more problems than they solve.

The rejection of horizontal direct effect of directives, the rationale behind it and why it has been criticized

Horizontal direct effect is when EU law provisions are allowed to be enforced against an individual. In the Marshall case the ECJ ruled that directives are not horizontally directly effective because ‘according to article 189 of the ECC treaty the binding nature of a directive constitutes the basis of the possibility of relying on the directive before a national court exists only in relation to ‘each member state to which it is addressed’[1]

There are a few possible rationales for this decision, Advocate General Slynn argued in the Marshall[2] case that because directives were not required to be published until after the Maastricht treaty[3] all the previous directives were not easily accessible and so the transparency of EU law was reduced. However this problem has since been reduced by the introduction of article 29 TFEU[4] which requires the publication of directives.

There is also the argument that allowing horizontal direct effect of directives would have given rise to problems of legal certainty.[5] Perchal explains that it would be particularly problematic in criminal cases due to the possible consequences of an unjust decision namely imprisonment. [6]Finally it has been argued that horizontal direct effect of directives would erode the distinction between directives and regulations. [7]

The Marshall [8]reasoning has been criticized by academics, who explain article 288,[9] says nothing one way or the other about imposing individual obligations so surely it could include individual obligations[10]. Also it seems logical that given the decision in Defrenne[11] which said that treaties could be horizontally directly effective because of their aims and character then it follows that directives should be horizontally direct effect too. However, this is not necessarily true, Craig agrees with Advocate General Slynn and argues that had the ECJ used this logic they would have ‘blurred the distinction between directives and regulations’[12] and therefore many academics support the ECJ’s decision.

Harmonious interpretation- does it  solve the EU law effectiveness problem?

The requirement that national courts interpret national law in the light of objectives of relevant directives could make EU law more effective. This is known as harmonious interpretation and it was first proposed by the ECJ in the case of Von Colson[13]

Harmonious interpretation creates a more uniform application of law across the member states therefore making EU law more effective. This also creates more legal uniformity and so certainty across each members states individual legal systems. It has been criticized because there must be room for interpretation ‘as far as possible’[14] and the law must be interpreted ‘in so far as it has the discretion to do so under national law’[15]

Although the aim of harmonious interpretation is to create uniformity across member states it is unlikely that it will achieve this. It is inevitable that across the great number of member states, which indulge in a great variety of cultures, the EU directives will be interpreted very differently by every court in every member state.  Hall suggests that it could even lead to different courts implementing the same directive and getting a wide range effectiveness in their results[16]. This issue could be improved if every member state that struggles with an interpretation issue simply submits a question to the ECJ under the preliminary ruling procedure set out in article 267 TFEU. [17] However, if this happens the ECJ’s workload will increase further and statistics show that the ECJ is already under an increased workload. [18]This could lead to less effective EU law because the quality of the ECJ’s judgements will logically decrease as its judges are stretched to cover more cases and work longer hours. Therefore this is an impractical solution and does not solve the inevitable issue that member states interpret the same EU directives differently.

Another argument for harmonious interpretation is that this kind of interpretation technique already works in UK law. The interpretation under section 3 of the HRA[19] has a similar requirement and this is effective UK law. Kavanagh argues that whilst this is a current requirement for UK law it has caused a lot of concern regarding because it places a restraint on parliamentary sovereignty[20]

To evaluate, most of the criticism for harmonious interpretation comes from the fact it is arbitrary in nature and this may lead to a less federal Europe and bigger inconsistencies in the laws of the member states because each member state will inevitably interpret the law slightly differently. Whilst this problem could be solved using article 267 of the TFEU[21].  This would dramatically increase the workload for the ECJ and statistics show they are already seeing an increase in cases[22]. A similar interpretation technique is already being used under section 3 of the HRA[23] but due to the speculation of a repeal of the HRA[24] it would be an unwise move to continue to use harmonious interpretation in EU law. Our experience with section 3 of the HRA[25] supports the thesis that we should abolish harmonious interpretation.

               

Widening the notion of the ‘state’ - does it solve the EU law effectiveness problem?

The notion of the ‘state’ was widened in the Foster[26] case, the ECJ set out a non- exhaustive list of criteria which enable an institution or authority to become an ‘organ of the state’. Whilst this is a clear list of criteria there is still an issue of justice because you do not have to meet all of the requirements. Consequently a party may only meet one requirement and still have the same liability as a party that meets them all, this is unjust and also creates a legal certainty issue.

By widening the notion of the ‘state’ the ECJ enabled more effective application of EU law because the notion is broad and more inclusive. However this gives rise to the same problems as horizontal direct effect because some national authorities and businesses will be subject to the EU directive and others will not. This will create issues of competition within member states and will give private organizations an advantage over those organizations that are considered to be an ‘organ of the state’.

Foster in his book ‘Foster on EU law’[27]argued that widening the notion of the state does not get to the heart of the problem because it results in public sector employees getting more rights than those who work in the private sector. Consequently there is no longer uniformity between all the citizens of the EU and the system becomes biased to public sector workers as they get protected by EU directives. Also because the different member states all have different systems the rights vary between states too. This is a very strong argument and shows clearly how the idea of a wide notion of the ‘state’ is flawed, unjust and does not promote equality.

To evaluate, it is a strong criticism that the ECJ’s widening of the notion of the state makes the law too flexible because it will be different in member states. It gives rise to legal uncertainty and makes the law unfair because it favours some organizations over others and gives competitive advantage to those that are not organs of the state. Also organizations that are conform to the EU directives to the same extent as organizations that have only the most tenuous link to the state by perhaps meeting only one of the Foster[28] criteria.  

Conclusion

To conclude, the criticisms of harmonious interpretation and the wide notion of the state are justified. They create issues of legal certainty, transparency and EU law effectiveness. In this sense both ‘solutions’ to the problem created by not allowing horizontal direct effect of directives actually create more problems than they solve.

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[1] Case 152/84, Marshall v. South-West Area Health Authority [1986] ECR 723 para 48

[2] Ibid

[3] Treaty on European Union (Maastricht Treaty).

[4] Treaty on European Union (Maastricht Treaty), Art 29

[5]  Case C-201/02 The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and Regions [2004] ECR1-723 para 56

[6]  Prechal, 'Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union' in Catherine Barnard (ed), The Fundamentals of EU Revisited: Assessing the Impact of the Constitutional Debate (Oxford: Oxford University Press, 2007).p 48

[7] Paul Craig, Grainne De Burca,  EU law: Texts, cases and materials (fifth edition published 2011, Oxford University Press)  p 196

[8] Case 152/84, Marshall v. South-West Area Health Authority [1986] ECR 723

[9] Treaty on European Union (Maastricht Treaty), Art 288

[10] Paul Craig, Grainne De Burca,  EU law: Texts, cases and materials (fifth edition published 2011, Oxford University Press)  p 195

[11] Case 43/75, Defrenne v. SABENA [1976] ECR 455

[12] Paul Craig, Grainne De Burca,  EU law: Texts, cases and materials (fifth edition published 2011, Oxford University Press)  p 196

[13] Case 14/83, Von Colson [1984] ECR 1891

[14] Ibid

[15]Case C-106/89, Marleasing v. La Comercial [1990] ECR I-4135

[16] Melanie Hall QC, The obligation of Harmonious Interpretation, Tolley’s 2nd Annual VAT and EU Law Conference

[17] The Functioning of the European Union article 267

[18]http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-03/ra2011_stat_cour_provisoire_en.pdf accessed on 15/10/13 at 15:43

[19] Human Rights Act [1998] s3

[20] A. Kavanagh, ‘Unlocking the Human Rights Act: The "Radical" Approach to Section3(1) Revisited’ (2005) European Human Rights Law Review 259

[21] Treaty on European Union (Maastricht Treaty) Art 267

[22]http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-03/ra2011_stat_cour_provisoire_en.pdf accessed on 15/10/13 at 15:43

[23] Human Rights Act [1998] s 3

[24] http://www.theguardian.com/politics/2013/mar/03/tory-ministers-human-rights-act accessed: 23/10/23 at 14:07

[25] Human Rights Act [2998] s3

[26] Foster v British Gas [1990] 27 CMLRev 859

[27] Foster, Foster on EU law (First Published 2006, Oxford University Press) p180

[28] Foster v British Gas [1990] 27 CMLRev 859