Parliamentary Sovereignty

and/after 25 Years of the Human Rights Act

Dr Adam Tucker

adam.tucker@liverpool.ac.uk

School of Law and Social Justice, University of Liverpool

Two (overlapping) aims

1. Synthesise, with the benefit of 25 years experience, the relationship between the HRA and Parliamentary Sovereignty
2. Suggest what that can tell us about the place of both Parliamentary Sovereignty and Human Rights in the Constitution

oops, these are more ambitious than I envisaged.

1 in summary is that HRA “engages” in a varied fashion with PS with varied degrees of success. s3, s4, s10 combo “worked”, s19 was not as effective, plus quasi-legal entrenchment followed (= messy part of story)

2 is that parsov is false, its binary/dogmatic picture needs nuancing. in fact, HRA is an example of Parliament itself legislating in ways which nuanced things

Starting point - Dicey on Parliamentary Sovereignty

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament…has, under the English constitution, 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 a right to override or set aside the legislation of Parliament.

And also (endorsing Todd)

a Parliament cannot so bind its successors by the terms of any statute, as to limit the discretion of a future Parliament, and thereby disable the Legislature from entire freedom of action at any future time…

Starting point - the HRA and Parliamentary Sovereignty

promot[ing] human rights while maintaining the sovereignty of Parliament (Jack Straw in the Commons)

crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of parliamentary sovereignty (Lord Steyn in Kebilene)

cardinal, and uncontroversial …[that the HRA] ultimately preserved parliamentary sovereignty (Hickman)

Conventional wisdom is pretty overwhelming.

The (purported) reconciliation

As to the actual limitations…[t]he external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws….The internal limit…arises from the…nature of the sovereign power itself…moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs (Dicey)

The (purported) reconciliation…

For Dicey, then, the doctrine of parliamentary sovereignty was consistent with the fact that there are limits on the substance of an Act of Parliament. They could not, however, be legal limits. Parliament may therefore be subject to a range of political, moral or practical limits at any moment, but this does not endanger its claim to possess legislative sovereignty. For the notion of legal sovereignty is simply a claim about legal power, and in particular, that the institution in which such sovereignty is vested has a power to make law which cannot be limited by law (Gordon)

The (purported) reconciliation…

Legal Limits

v

Political Limits

this is how the HRA is said to operate - by “merely” imposing non-legal, or political limits on P’s legislative power. But… I want to say that this is not a good way to explain the Human Rights Act.

The Human Rights Act 1998…

…Subverts Parliamentary Sovereignty

• section 19
• section 4
• the entrenchment approach (some elements)

…Challenges Parliamentary Sovereignty

• section 10
• section 3
• the entrenchment approach (some other elements)

OK this slide is basically what I want to say today.

Nb - in each box we have elements of doctrine/provisions of the Act itself AND elements of constitutional culture

2 levels to this slide: 1. PS is subverted / challenged 2. (underlying) PS is susceptible to subversion / challenge generally and also in particular - as here - in/by legislation.

Subverting Parliamentary Sovereignty (1 - the Act)

• s4 and s19

the parsov compatibility is via the Political v Legal distinction (rooted in Dicey) but not ordinary politics. “legal reason politics” law used to create political factors, to weight the political balance in favour of rights respect Two dimensions: type of reasons (LEGAL), how they operate (WEIGHT) recognised by the court in cases like Nicklinson taken for granted in s10 compelling reason to use that process takes for granted some reason for change so yes, politics. but through legally created political reasons. this is not compatible with the Diceyan scheme itself (which is crazy) but it also subverts more sensible understandings (like Mike’s) of the political/legal distinction

Subverting Parliamentary Sovereignty (2 - its constutional position)

• Core examples: Scotland Act 1998 s29/Government of Wales Act s108A/Northern Ireland Act 1998 s6
• But also: Scotland Act 1998 s58/Government of Wales Act 2006 s81/Northern Ireland Act 1998 s24
• And on the international plane: Good Friday Agreement, The Windsor Framework
• And now: European Union (Withdrawal) Act 2018 s7A
• Also: Equality Act 2006 s9
• And (getting more haphazard now): Nationality, Immigration and Asylum Act 2002 s55, Immigration Act 2016 s2, Companies Act 2006 s961, Banking Act 2009 s4
• etc…

The HRA is difficult to repeal. This (which is really totally detached from underlying moral concerns / political controversies etc) is part of why - interdependence.

Deliberately haphazard! Imm 2002 = no support for late claimants, 2016 = immigration bail conditions Eq Act = Commission role to encourage compliance with s6 Companies Act = liability shield for takeover panel doesn’t extent to Convention rights liability Banking Act = avoiding rights contravention as objective of stabilisation powers,bank insolvency/administration procedures EU(W)A s7A actually legislated in 2020 in EU(WA)A

HRA (the rights it incorporates, the institutional basics of its scheme) is a functional premise for other laws, bound together in a complex web. It is foundational i.e. disturbing it means having to rebuild other aspects of the constitution

Same story: what we have here are political but legally created reasons not to repeal the HRA. P legislated to make the HRA politically salient. The existence of these other enactments, and the practice of enacting things like this is not an ordinary or neutral political fact. The law is partisan on the resilience of the HRA!

Human rights concerns have a privileged place in our politics but this has been achieved as a matter of law. That’s not how politics (paradigmatically) works. It’s means this stuff straddles what Dicey wanted to set up as a boundary.

The subversion

In these ways, the reconciliation between the Act and Parliamentary Sovereignty comes at the expense of the subversion - via both its provisions and its wider constitutional position - of the distinction between legal and political limits on which that reconciliation is built.

Challenging Parliamentary Sovereignty (1 - the Act)

s3 and s10

confession - challenge is weaselly euphemism. Where I endorse these things (this slide - the provisions) they are really violations of PS or disprove it. And where I don’t (next slide - the genie stuff) they would be violations if true, and my point today is they get admitted to mainstream constitutional discourse as such.

Challenging Parliamentary Sovereignty (2 - its constitutional position)

If the HRA were to be abolished… it is hard to imagine that the Supreme Court Justices would simply put aside the case law and the human rights legal culture which the courts have developed over the last decade…Whether or not the Supreme Court would go so far as to refuse explicitly to recognise the validity of a statute repealing the HRA…would depend… (Malleson)

the Act has served to shine a light upon latent—but to an extent unrealized potential within the common law, and that the genie, now that it is out of the bottle, may return only reluctantly, if at all (Elliott)

The Challenge

In these ways, the reconciliation between the Act and Parliamentary Sovereignty fails, because the Act - via both its provisions and its wider constitutional position actually imposes legal limits on Parliment’s legislative authority, which are inconsistent with the fundamentals of the Diceyan scheme

The BBORB (sorry)

• Parliamentary Sovereignty was a significant motivating factor. Yet if enacted, BBOR would nevertheless have:

  • relegislated s4 - a subversion of Parliamentary Sovereignty (in cl 10); and
  • relegislated s10 - a challenge to Parliamentary Sovereignty (in cl 26); and
  • conceptualised (explicitly and repeatedly) Parliament’s authority incompatibly with the Diceyan scheme in requiring it be given “great weight”

mention doubts about how thoroughgoing or good faith that motivation was. anyway…

The Acquis

• The constitution is not accurately captured by the doctrine of Parliamentary Sovereignty: it can be violated (“challenge”) and its conceptual framework subverted (“subversion”)

• Dicey’s account lacks crucial explanatory power. It encourages us to misconceive, to rationalise and to reconcile rather than engage fully

• the HRA is a key example of this feature of the constitution.

• it is, moreover, a durable example.

My argument is not “the HRA did this to a previously sovereign legislature”, nor “the 1998 Parliament did this to its own previous sovereignty” But rather: this is what our constitution can be and is like. And it is for good reason that rights is one topic where we can explore this. They are sufficiently important in our constitutional culture to be one of the topics where this boundary-pushing is engaged (and the acquis of the HRA has only reinforced this) Also a good account of the HRA should be richer - and acknowledge that the techniques it deploys are deeper - than “creating political limits because legal ones are unavailable”