Essay: Parliamentary sovereignty, separation of powers and the powers given to courts

The statements given in the question discuss concepts of parliamentary sovereignty, separation of powers and the powers given to courts in regards to the Human Rights Act 1998. The first statement given by Bowie MP outlines the necessity for judicial review due to the limited method for the judiciary to protect human rights, however would not be suitable for the UK, considering the concept of parliamentary sovereignty. The second statement given by Mercury MP argues that the judiciary has sufficient powers to protect human rights, however the main concern would be the increase of the power of the executive, leading to consequences such as the reduction of the separation of powers.
In regards to the statements given by Bowie MP, it is inferred that they wish to confer to courts the power of judicial review. This would enable courts to review whether an Act of Parliament is valid according to the constitution, thus giving power to strike down, and invalidate laws or governmental actions that they deem are incompatible. Under the current situation, the law of the UK does not permit judicial review of primary legislation, where in the statement given, concerns the Human Rights Act 1998, which is an Act of Parliament. According to the Human Rights Act, courts are required to interpret the legislation in a way that is compatible with the Convention, and if it is not compatible, courts are not allowed to override it. However, the statement by Bowie MP suggests that courts are to be given the power of judicial review, where they would be able to strike down any laws that are incompatible with the Convention Rights, set out by the ECHR.
It could be argued that Bowie MP’s suggestion to provide courts with the power of judicial review does, in fact, increase the protection of individuals’ human rights by allowing the courts to strike down any legislation that is incompatible with the human rights conferred under the EC. However, in order to fully analyse this benefit, a discussion in regards to the status quo must be made, where although courts disagree with legislation as it is against Convention rights, the legislation concerned is still enforceable. When it is not possible to read down legislation to make it compatible with the ECHR, a declaration of incompatibility will be made, resulting in three possible outcomes; (1) no action is taken by the government, (2) the government repeals the offending provisions, and (3) remedial orders, where ministers can repeal the incompatible provision without needing an Act of Parliament. It could be argued that merely a declaration of incompatibility as a remedy for breach of human rights is less than satisfactory in protecting human rights. The ineffectiveness of the declaration of incompatibility can be seen where the offending act or law still remains in full effect, although it is recognised to be a violation of human rights, therefore it is probable that individuals’ rights would continuously be in breach while waiting for the government to take action. The process is long and ineffective, as the dialogue between the courts and the legislative body could involve a lengthy process, thus would not provide the utmost protection of human rights. Furthermore, if the declaration of incompatibility is an unsatisfactory remedy and no action is taken by the government, individuals that are affected by the breach of human rights would have to apply directly to the ECtHR which could be considered costly and ineffective. Therefore, giving courts the power to initiate a judicial review could possibly increase the promptness of the remedy, as courts are able to strike down and change any legislation that is deemed to be incompatible with the Convention Rights immediately as they see fit. Judicial review would erase the need to wait for the government to make decisions in regards to the offending legislation, which could be influenced by other political or economic reasons, thus further eroding the protection of human rights.
However, Bowie MP’s statement of the intention to impose judicial review undermines the principle of parliamentary sovereignty. This principle refers to the unlimited legal power of the Westminster Parliament to enact any law without any external constraints. Therefore, any primary legislation enacted by the parliament which has been approved by both houses, and received Royal Assent is supreme, and nothing can override it. This is illustrated in a quote by Lord Reid in Madzimbambuto v Lardner-Burke, “It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things”. Thus, it is established that although a law may be unconstitutional or in violation with the ECHR, the Parliament can still choose to enact it, as it is well within their power according to the principle of parliamentary sovereignty. This would be contradictory to the concept of judicial review, as it allows courts to strike down decisions made by the Westminster Parliament, thus inferring that the courts are above the parliament, which cannot happen under the principle of parliamentary sovereignty. Under this principle, the role of the courts is to merely interpret and apply statute, far from what is expected of them under judicial review, where they may question the validity of any acts of parliament. This ability for the courts to strike down or review the legislation made by the parliament would deviate from the government’s intentions of making the legislation. Therefore, although conferring courts the power of judicial review could increase the protection towards human rights, it would contradict the principle of parliamentary sovereignty and erodes the supremacy of acts of parliament. Thus, due to the concept of parliamentary sovereignty upheld by the UK, Bowie MP’s suggestion would not be suitable to implement.
In the second statement, Mercury MP infers that it is not necessary to increase the power of the courts in introducing judicial review, as there are sufficient powers anchored in the Human Rights Act to protect human rights. This refers to Section 3 and 4 of the Human Rights Act. Courts are allowed to stretch the legislation in order to make it compatible with the ECHR, such as in the case of Ghaidan v Godin-Mendoza, involving the rights of a homosexual couple. In this case, it was held that the spouse of the late tenant could not succeed as a tenant of a property as the Rent Act 1977 only applied to heterosexual couples. This was in offence of rights conferred under the ECHR. The House of Lords then used Section 3 of the Human Rights Act to stretch the meaning of the offending act which allowed it to be compatible with the Human Rights Act. Furthermore, courts have the power to make a declaration of incompatibility, provided in Section 4 of the Human Rights Act, when Section 3 cannot be used. This would provide for the protection of human rights as the declaration of incompatibility could signal to governments to repeal the offending legislation through a similar process to enacting legislation, or allow ministers to issue a remedial order if all other legal methods are exhausted. Through the declaration of incompatibility, it could be argued that current methods of the court in protecting human rights are sufficient, as governments are not likely to do nothing once a declaration of incompatibility is issued, possibly due to pressure from the ECtHR. It is likely that when courts flag out declarations of incompatibility, governments will take action to remedy this, as seen in Bellinger v Bellinger, where a declaration of incompatibility was issued due to a violation of human rights, where the claimant, who had undergone gender reconstruction surgery and married a man, however their marriage was void as the claimant’s birth certificate stated their gender as male. This resulted in the Gender Recognition Act 2004 that allowed individuals to be recognised in their acquired gender. Therefore, the courts’ powers anchored in the Human Rights Act, where they can flag out or interpret legislation in accordance with the ECHR, can be considered as sufficient in protecting human rights of individuals within the UK. This is sufficient, in such that courts do not need the power of judicial review which would allow them to strike out offending legislation, as it has been proven that the method readily available is efficient.
Furthermore, Mercury MP’s concerns regarding the reduction of the courts’ power and increasing the power of the executive through increasing the parliamentary term could be considered as valid as it would reduce democratic accountability, leading to difficulties in the courts’ ability to achieve remedy in cases of legislation that are incompatible with the ECHR. The extension of the parliamentary term would lead to an erosion in accountability, as governments would be less likely to act on declarations of incompatibility as they are less likely to want to please the electorate. This is problematic as courts’ powers anchored in the Human Rights Act are dependant on the will of the current government to change the offending legislation. If governments are less willing to repeal offending legislation due to the fact that they are less concerned with upcoming elections, protection of human rights will be less effective, as this erodes the effectiveness of the courts’ power. Declarations of incompatibility could be ignored, or would take a longer period of time, as there is no urgency for the executive to act, as the duration of the term has increased, where governments do not feel the need to immediately cater to public opinion. This could possibly delay, or dissuade governments in taking prompt action, thus proving it difficult to gain an appropriate remedy. Furthermore, it is necessary to ensure that courts still have an effective power in granting remedy, thus the power of the executive should not be increased. This is due to the fact that governments are more likely than courts to go with the will of the majority, thus would be less consistent compared to the judiciary. Courts would be less likely to follow political opinion, and would consistently flag out offending legislation according to the interpretation and precedent set by the ECHR, which would remain similar, no matter which government is in power. This process is more democratic, where discussions between the court and the government are more likely to take place, and is in line with the separation of powers principle, where courts interpret and apply legislation, and the legislative branch makes and repeals legislation. Therefore, if the courts power is maintained and there is no increase in the power of the executive, it is likely that there would be sustained consistency in providing remedy to human rights violations.
However, it could be argued that the increased power of the executive and the reduction of the court’s ability to provide remedy is welcomed, as the Human Rights Act gives courts too much power, which could be considered as unconstitutional. This is due to Section 3 of the Human Rights Act that allows UK courts to interpret legislation according to the ECHR, which could be considered as legislating, which is not the function of the judiciary branch of the government. The constitutional role of courts is merely to interpret and apply statute in a way that is in accordance with the will of the Westminster Parliament. In situations that involve the Human Rights Act, it is arguable that courts have too much power in a sense that the legislation could interpreted differently as to what parliament intended, thus courts tend to adopt a legislative function, against the principle of separation of powers. This is seen in R v A [2001], where the appellant claimed their right to fair trial provided under the ECHR was violated due to legislation that removed the discretion of judges in questioning victims of rape. The judgement of Lord Steyn which held that it was the will of Parliament to ensure a statute complies with human rights, therefore courts should be allowed to stretch legislation was criticised by Lord Hope, where it was argued that Lord Steyn had overstepped his constitutional powers as courts cannot legislate and are simply there to interpret legislation. Thus, it could be argued that the increased power of the executive would reduce the power of the courts and ensure that the judiciary does not go beyond their constitutional duties. Although this is a valid argument, it is necessary to note that when it becomes apparent that stretching legislation in accordance with Section 3 changes the legislation completely or has far reaching effects towards policy, for example, courts have the option to issue a declaration of incompatibility as provided by Section 4. Therefore, it is not necessary to increase the power of the executive and render courts without remedy, as there is already a check and balance in place where the possibility of the courts exceeding their role is mitigated.