Liberty Classic

While Section 4 provides for a declaration of incompatiblity it goes no further. It does not provide for any remedy leaving the impression that the domestic provision, although incompatible with conventions rights remains good law. As Turpin points out: “It remains in force, as law that the court must continue to apply and the declaration, as per s4(6), does not give rise to any remedy for the party whose Convention right has been overridden. ” Commenting on the Human Rights Act 1998, in  R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 131 Lord Hoffman stated that:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. ” Lord Hoffman explains that the obligation to observe and enforce convention rights becomes a moral obligation rather than a legal one since Parliament is also mindful of the political consequences of failing to protect those rights.

Put another way, Parliament by limiting the courts’ powers with respect to the declaration of incompatibility has held on to its sovereignty. Perhaps the strongest argument in favor of the loss of Westminster’s Parliamentary soveriegnty is the surrender of the doctrine of implied repeal as encapsulated in the Human Rights Act 1998. The requirement that all domestic laws, past and preset be interpreted in such as way as to comply with Community law is inconsistent with the ruling in Ellen Street Estates Ltd. v Minister of Health [1934].

In Ellen Street Estates Ltd Lord Maugham LJ stated that: “... the Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. ” Be that as it may the courts in complete recognition of Parlimentary sovereignty have complied with the enactment of the Human Rights Act and the European Community Act.

For example in Lord Diplock’s devised a “rule of construction” in Garland v British Rail Engineering. He stated that the all domestic provisions should be interpreted in such a way as to comport with community law. Lord Bridge said In R v Secretary of State for Transport, ex parte Factortame Ltd (No 2 that:: “…Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. … Thus there is nothing in any way novel in according supremacy to rules of Community law in areas to which they apply …”

While recognizing a surrendering of Parliamentary sovereignty, Lord Bridge is also noting that it is that very same Parliamentary sovereignty that permiited Westminster to cede to community supremacy. In the same vein, the Courts are predisposed to accept Parliamentary sovereignty and it is this recognition that permits the courts to accept community supremacy. In R (Jackson) v Attorney General the House of Lords accepted that once Parliament passes a law, it is not up to the courts to question its validity once it has met all the formal requirements of the law for enactment.

As noted by Lord Denning in Maccarthys Ltd v. Smith the courts must acknowledge and accept Parliamentary sovereignty and the best the courts can do is interpret the laws enacted by them. Community supremacy is likewise entirely dependant upon the will of Westminster to endorse it. As previously noted it is only by the will of Parliament that permitted an element of community supremacy to prevade Parliamentary sovereignty. Parliament being supreme and sovereign can legislate against community supremacy at anytime.

It is therefore not realistic to argue that the concept of UK Parliamentary sovereignty is a thing of the past. The mere fact that Parliament was able to cede its sovereignty in the first place is a manifestation of its own supremacy.

Bibliography

Dicey, A. V. Introduction to the Study of the Law of the Constitution. Liberty Classics, 2001 Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590 European Community Act 1972 Garland v British Rail Engineering [1983] 2 AC 751 Human Rights Act 1998 Maccarthys Ltd v. Smith [1981] 1 All ER 111