The Courts and Parliament

How Do the Conceptions of Parliamentary Sovereignty Affect the Relationship between the Courts and Parliament? Together Parliament and the courts comprise the backbone of the English governing system; the common perception being that parliament initiates and codifies the law while the judges merely implement it. However with a top political figure such as David Blunkett remarking as recently as March 2003 how "parliament debates issues and judges overturn them" this notion is obviously not as clear cut as may at first be presumed.

Written in the late 19th century AV Dicey devised a model of parliamentary sovereignty most in line with the laymen's view outlined above. It was founded in a time when England as a whole was a strong sovereign state whos methods of government were subjected to few outside influences and although much has changed since its publication it still remains the classical definition of sovereignty. For our purposes the most crucial of Dicey's principles are that there are absolutely no legal limitations on the scope of Parliaments power and that laws passed by Parliament in the proper manner cannot be challenged by any body including the courts As regards the former principle at first glance it does appear that Parliament knows no bounds.

Sir Ivor Jennings once remarked that "If Parliament enacts that smoking on the street of Paris is an offence then in the eyes of the English courts it is an offence" and when one considers that Parliament has already legislated on aliens ((The hijacking Act 1967) it does seem that literally anything could be possible. However, the impracticalities of this view are strikingly obvious and this has led to criticism from the likes of HWR Wade who argued that it was insane to believe that Parliament had a totally free reign.

Surely there are not only political limitations on what a Parliament may or may not do, but also legal limitations which it must not exceed? If Parliament were completely unchecked as suggested by Dicey would it not simply legislate to perpetuate itself? One suggestion put forward by Laws LJ is that, although not set in stone through a single constitutional document as for example in the United States, the UK does indeed have a strain of higher order law or a set of constitutional principles that supersede Parliament. Rights given this status include fundamental freedoms such as the right to democracy and the right to free speech.

These he claims are non-negotiable and non-infringeable and in accepting power the government of the day is bound to protect these necessities. One exception to the uncodified nature of these fundamental rights could be said to be the Human Rights Act 1998. It protects such things as the right to life and the right to a family and in accordance with S. 3 in so far as is possible, all primary and secondary legislation must be interpreted in a way that is compatible with the provision of the Act.

Another way of looking at this is to consider the view of Locke who observes that sovereignty is merely "held on trust" by the government and that ultimately it rests in the hand of the people of a state. Therefore, if a government chose to abuse its power its actions could be negated by the actions of the people upon whom it was trying to enforce its will. In ___ for example a law was passed introducing poll tax. This was viewed as unfair and although many were jailed for non-payment many more continued to disregard it .

As a result it was finally abandoned. This shows that unless the actions of a government are perceived to be in the best interests of those it governs no amount of judicial support will turn an otherwise legitimate law into an enforceable one. However what happens when government action is not directed at the population as a whole but towards a much smaller group of individuals? Whose duty is it in this situation to ensure that the inherently more powerful government does not unfairly use its size? Here is, in the eyes of Laws where the judiciary really comes into its own playing guardian angel to the rights of the individual, and if nothing else ensuring that the government acts within the limits of its own legislation.

This is the process known as judicial review and its three key functions are to ensure the legality, rationality and procedural proprietary of governmental actions. It is not a process that allows judges to challenge the actual decisions made by governmental bodies (I will come to this later) but simply to ensure that the body is within its jurisdiction to make the said decision and has correctly processed it.

There are two strains of remedy that the courts can impose prerogative orders (exclusive to public law) and non-prerogative orders and these bestow on the courts the power to prevent a public body acting in a certain way and the power to override decisions made at a lower level of the courts system or through inferior administrative bodies. Although the possession of these powers is not in outright conflict with Dicey's view of sovereignty it does highlight that Parliament is subject to regulation by ant least one external force. Since the formation of the European Coal and Steel community in _____ another external force has slowly been encroaching on the UK governments sovereignty, the influence of Europe. The publication of a white paper in 1967 on legal and constitutional implications of membership of the.

E. C marks a massive turning point in the way UK sovereignty is perceived. The paper contained provisions which limited Parliaments freedom in that it could only pass legislation in line with community law. This was followed by the European Communities Act 1972 which gives force to current and future community laws and provides for some laws to be directly incorporated into the UK system without further action. This seems to be a massive infringement on Parliaments power and totally at odds with Dicey's all-powerful perception.

However, it was parliament itself whichchose to enter into the community and political and economic implications aside it is possible that parliament could simply remove itself from the community and pass new legislation to free itself of its European obligations. Although it has pooled its sovereignty its has not as of yet completely surrendered it. The second of Dicey's assumptions also needs careful consideration, particularly in the European context and in light of the aforementioned HRA both of which I will look at shortly. As I have said, Dicey's second assumption is that no court can overturn a law made by parliament.

This follows that any decision made by a court can be overturned by way of contrary legislation. In Burmah Oil v Lord Advocate (1965) the House of Lords made a decision regarding compensation for property lost in wartime which would have been very costly for the government. In response the government passed The War Damage Act 1965 which effectively cancelled out the courts decision. In line with the Diceyan view this firmly establishes that the judiciary are subordinate to parliament However, through the process of statutory interpretation the black-letter law as laid down in Acts isopen to considerable stretching and it is hard to deny that ,to some extent, judges do make law.

The extent of these law-making powers came into question in Magnor and St Mellons Rural District Council v Newport Corporation (1965) when Lord Simonds scolded Lord Dennings adaptive approach stating that "if a gap is disclosed[in an act] then the remedy lies in an amending Act" . But not all gaps can be filled nor all instances foreseen and it is in theses cases that a judges interpretation can be crucial.

A good example of the freedom allowed the judiciary is the case R v R(1991). Prior to this case noman had ever been convicted of raping his wife as it was believed that the bond of marriage made it impossible for a rape to have occurred. In R v R however, the House of Lords convicted a husband of raping his wife using the argument that to maintain the exemption would be not in keeping with the times. Although imposing this sentence contradicted not only national but European law on retrospectively criminalising an action it was held to be valid as it promoted equality for rape victims and was generally agreed to be the just thing to do. Judges had effectively changed the existing law on rape.

However, the freedom to interpret existing laws does not give the judiciary any power to initiate new laws or to utterly disregard existing law. One exemption to this is when UK courts are acting in their European capacity. In R v Secretary of State ex parte Factortame(C-213/89) it was established that if a national law prevented a relief being granted while an issue was taken to the European Courts the national law could be set aside. In effect this was the courts acknowledging the supremacy of European over domestic law flies in the face of the unchallegable Act championed by Dicey.