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The all, strong enforcement structures, and an independent

The United Kingdom’s constitution, because it is unwritten, relies
mainly on two constitutional principles: parliamentary sovereignty and the rule
of law. There is however what appears to be a “tension” between those two.1
On the one hand, orthodox legal theory has always said that courts in the
United Kingdom are subordinate to the Parliament, which is said to be
sovereign.  As illustrated by Dicey’s
quote, “Parliament has,
under the English constitution, the right to make or unmake any law whatever;
and, further, no person or body is recognised by the law of England as having a
right to override or set aside the legislation of Parliament”2. As a consequence, courts have no power whatsoever to review and
declare statutes passed by the Parliament invalid. They simply have to apply
them.  There is however a “new view” on
parliament supremacy held notably by Lord Jennings, Marshall and Heuston
according to which it is rather the courts who are “the ultimate arbiters of
what the law is in a given society”3,
and not the Parliament. On the other hand, the rule of law requires “a
transparent legal system, the main components of which are a clear set of laws
that are freely and easily accessible to all, strong enforcement structures,
and an independent judiciary to protect citizens against the arbitrary use of
power by the state, individuals or any other organization.” Are the courts no
longer subordinate from the Parliament or is the latter still sovereign in the
UK? How have their gained more independence?

 

The most obvious way in which the
courts in the UK have developed their role was through the use of the mischief
rule, also called the purposive
approach. This statutory interpretation is one of the four which exist with
the literal, the golden and the ‘unified common approach’.4 Introduced in Heydon’s Case5, it asks judges to go through a 4 question-stage process and
consider firstly what was the common law before the making of the act, secondly
what was the mischief and defect for which the common law did not provide,
followed by what was the remedy Parliament passed to cure the mischief to
finish with what was the true reason for the remedy. Herewith, in Corkery v Carpenter6, the defendant was found drunk while riding his bicycle and
sentenced to one month’s imprisonment under section 12 of the Licensing Act
18727. However, this section made it an offence to be drunk while in
charge of a ‘carriage’ on the highway. There was no actual refence to bicycles.
It was nevertheless held by the King’s Bench that the act included bicycles
when read according to the purposive
approach as “a bicycle is a carriage … because it carries”8. Thus even though this approach allows courts read legislation
according to what the Parliament initially intended, it also undermines
Parliament’s supremacy as it gives to a certain extent judges a law-making
role. Lord Denning, who often use the mischief
rule because it allowed him to bring
forward his own view of justice and morality underlined in the judgement of Magor and St Mellons DC v Newport Borough
Council9 that “judges sit here to
find out the intention of Parliament and carry it out and they do this better
by filling in the gaps and making sense of the enactment”.

 

Moreover, over the years, the Parliament itself has enacted number
of laws meant to limit its sovereignty.10

 

Among them, the decision of the UK to
pass the European Communities Act 197211 which automatically incorporated ‘enforceable Community rights’
into national law. “It ensures that some types of EU legislation – including
treaty obligations and regulations – have direct effect in the UK’s legal
system without the UK Parliament having to pass any further legislation.”12 This was necessary as the UK is a dualist state. Monist and
dualist systems of law have two different visions on the relations between
national and international law. One the one hand, in monist systems of law
(such as in France), international laws are immediately enforced and applied in
national courts without the need for national legislation to give effect to
them. On the other hand, in dualist states, international law cannot be
enforced if they’re not translated in national law. Furthermore, even though in
the UK, the Parliament is sovereign, when talking about the concept of
‘supremacy’ in regards to EU law, EU law overrides the British Parliament
(where EU law is applicable) and, more generally, it overrides national law (in
case of inconsistency). Accordingly, when an Act of Parliament and a EU law
seem to conflict, the court will always try to read the Act in accordance with
the EU law.

 

Secondly, the Human Rights Act 199813 was another measure which “renewed
focus on the independence of the judiciary”.14 Its aim was to incorporate into UK
law the rights contained in the European Convention on Human Rights,
“including article 6, which recognizes the right to a hair trial”.15 Sorely needed, this act also allowed
British citizens to argue for their human rights in British courts directly,
thus saving money and time. Before that, in order to go to Strasbourg, they had
to exhaust all domestic remedies first.

Composed of 22 sections, the most
significative are section 3 and 4. The former gives more power to the
judiciary. Indeed, under section 3, the courts are required to interpret
and give effect to statutes in way that is compatible with convention rights so
far as it is possible to do so. This is in addition to the normal purposive
approach to interpretation. Furthermore, the courts’ interpretation of a
statute under s.3 does not need to provide an interpretation that is consistent
with the intention of Parliament when it enacted the statute as seen in Ghaidan v Godin-Mendoza16. A homosexual couple was living
together until the defendant’s partner died. The landlord subsequently brought
proceedings claiming possession of the flat under the Rent Act 1977. Even
though the word ‘spouse’ described “a person
living with the original tenant as his or her wife or husband”17, it would have been
discriminatory and against the Human Rights Act to apply that definition to
heterosexuals couples only. Hence, the courts could give a statute a different meaning to that
originally intended by Parliament. 

 

Finally, the decision to establish a
UK supreme court was the latest law enhancing the courts’ independence from the
Parliament18. In 2005, the Constitutional Reform
Act was voted but it wasn’t until October 2009 that it fully took effect, ending
the House of Lords function as the UK’s final court of appeal in all civil and
criminal matters with the exceptions of ‘devolution issues’19. The creation of this new Supreme
court was mainly trying to achieve a clearer separation of powers between the
judicial and the legislative branch. The House of Lords, because it was located
in the Palace of Westminster (commonly known as the Houses of Parliament),
“gave the strong impression that the apex of the constitutional system was
characterised not by a separation, but by a fusion, of power”. Now, the new
Supreme court is independent from both the Parliament and the government, not
thanks to unwritten conventions, but because of laws. This changes reflect the
growing emphasis of the last few years on “more legal, formal notions of
constitutionalism”20.

Furthermore, the Constitutional reform Act 200521 also reformed the office of Lord Chancellor “who – until the
Constitutional Reform Act 2005 came fully into force – straddled all three of
the traditional roles of government. As a member and Speaker of the second
chamber of Parliament, a member of the Cabinet and the head of the judiciary
(as well as a sitting member of the Appellate Committee of the House of Lords)
the Lord Chancellor exemplified the English indifference to the strict
principle of the separation of powers as derived from Montesquieu.”22 It was in his treatise on political theory, The Spirits of Laws, that the ‘separation of powers’ as we know it
today was first introduced. Back then, it was mainly intended to guard against
tyranny and oppression, as well as to preserve liberty. Today on the other
hand, it is more often suggested as a way to maintain a system of checks and
balances necessary for a good government. 23 By reforming the Lord Chancellor’s office and limiting his
functions, “transferring their judicial functions to the President of the
Courts of England and Wales – a new title given to the Lord Chief Justice”24, it was consequently hoped that appeals would no longer be
subjected to political bias but on the contrary be fairer and in conformity of
article 6 of the HRA which guards the right to a fair trial. 

 

That being
said, is it accurate to go as far as to say that courts in the UK have acquired the confidence to take a role similar to that of
constitutional courts elsewhere? It would be a gross exaggeration. Constitutional courts are the highest courts when it comes to the
interpretation, protection and enforcement of the Constitution. “They deal
exclusively with constitutional matters – those cases that raise questions
about the application or interpretation of the Constitution.”25 Indeed,
constitutional courts such as the French Conseil Constitutionnel26 or the German Federal Constitutional
Court27 can strike down legislation which is
judged unconstitutional. As of today, that is something the courts in the UK
are still unable to do. Primary legislation cannot be judicially reviewed. The
closest they have ever come to striking down legislation would be through the
use of declarations of incompatibility, incorporated in section 4 of the HRA.
However, it must only be used when legislation is inconsistent with the
Convention rights, not when it is inconsistent with the UK constitution and
secondly, declarations of incompatibility remain political above all as they
are not binding.

 

Moreover, all those measures mentioned above could easily be
repealed.

 

The only reason why EU law has effect
in the UK and prevails over national law is that Parliament permits it. The
United Kingdom can at any given moment decide to revoke the 1972 European
Communities Act if it wishes to put an end to European laws’ prevalence. As a
matter of fact, it will. After Brexit, a Repeal Bill was introduced, designed
to, as the name suggests, repeal the European Communities Act. EU laws will
however be brought onto the UK books to make for a smooth transition.28 
Moreover, the Parliament can also make the choice to make it
unequivocally clear that it wishes to deviate from EU law.

 

Likewise, the Parliament could very well decide to repeal the
Human Rights Act. This is of course all theoretical since this measure, if
taken, will probably be met with public outrage. Nevertheless, it is not
outside of the Parliament’s powers and jurisdiction to do so.

 

To finish,
while the main aim of the Constitutional Reform Act 2005 was to “uphold the
independence of the judiciary”, there was only real little change between the
Supreme Court and the Appellate Committee of the House of Lords. The changes
wrought by the creation of the former were largely “cosmetic”29 and destined
to overturn the suspicious and distrustful public opinion, enhance the credibility of the
judicial system in the eyes of citizens and “carry in their eyes a badge of
independence and neutrality”30. This new court was above all meant
to be “a potent symbol of the allegiance of the UK to the rule of law”.31 But if truth
be told, in spite of a large scale impression of a “fusion of powers”,
especially after Pinochet No. 1,
there was no real endangerment of judiciary independence. Indeed, “it need not be the case that this
independence has, in fact, been compromised; however, the perception of
inadequate separation exists.”32

It would thus be wrong to confidently and
effectively say that courts in the UK no longer are subordinate to the
Parliament and have acquired the confidence to take a role
similar to that of constitutional courts elsewhere.

 

1 James Hyre, “The United Kingdom’s Declaration of Judicial
Independence: Creating a Supreme Court to Secure Individual Rights Under the
Human Rights Act of 1998”, (2004) 73 FLR. 423, 424

2 A.V.
Dicey, ‘Introduction to the Study of the Law of the Constitution’ (10th ed.
1959) 23-32, 39-70

3 R. Elliot ‘Rethinking Manner and Form: From Parliamentary
Sovereignty to Constitutional Values’, (1991) 29.2 OHLJ 215-251

4 Martin
Partington, Introduction to the English
legal system (first published 2005, Oxford University Press 2017) 56

5 1584 EWHC Exch J36

6 1951 1 KB 102

7 Licensing Act 1872

8 Lord Goddard CJ in 1951 1 KB 102

9 1952 AC 189 

10 UK Parliament “Parliamentary
sovereignty”
accessed 15 January

11 European Communities Act 1972

12 Institute
for Government “The 1972 European Communities Act”

accessed 21 January 2018

13 Human Rights Act 1998

14 Hyre (n 1)
425

15 Ibid

16 2004 UKHL 30

17 Rent Act
1977 s2(a)

18 UK Parliament (n 10)

19 Mark Elliott and Robert Thomas, Public Law (Oxford University Press, 2e
ed.) 254

20 Ibid 255

21 Constitutional Reform Act 2005

22 C.J.S. Knight, “Bi-polar
sovereignty restated” (July 2009) CJL 361, 363

23 Richard Benwell and Oonagh Gay,
“The Separation of Powers” (15 August) House of Commons 1

24 Courts and tribunals Judiciary, “Constitutional Reform”,
Accessed 17 January 2017

25 Constitutional Court of South Africa, “The Court’s position in the justice system”
Accessed 17 January 2018

26 République Française, « A quoi sert le
Conseil constitutionnel ? » (Vie Publique, 02/01/2014) accessed 15 January

27 The Federal Constitutional Court,
“The Court’s Duties” (Bundesverfassungsgericht) accessed 15 January

28 Institute for Government “EU
Withdrawal Bill (Repeal Bill)” Accessed 17 January 2017

29 Elliott and
Thomas (n 19) 255

30 Lord Steyn, The Case for a
Supreme Court, (2002) 118 LQR 384

31 Ibid

32 James Hyre, “The United Kingdom’s Declaration of Judicial
Independence: Creating a Supreme Court to Secure Individual Rights Under the
Human Rights Act of 1998, FQR 73 423, 424