The force outside of the jurisdiction of

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The subordination of the judiciary to
Parliament has long been equivocal. As a matter of principle, the orthodox
doctrine of Parliamentary sovereignty still rules supreme, yet Diceyan theory,
the idea 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”1
has become increasingly obsolete. Constitutional theorists such as Wade support
this concept, seeing the courts as a judicial barrier and reformist
establishment, one capable of holding Parliament to checks and balances via
statutory interpretation. This form of interpretation is provisioned for through
section 3 of the Human Rights Act 1998 and Parliamentary sovereignty questioned
through the United Kingdom’s accession to the European Union. Moreover, the
deconstruction of Parliamentary sovereignty runs parallel to the progressive
development of the court’s powers, which are accentuated most evidently through
the Constitutional Reform Act 2005.

In establishing a domestic human rights
policy to coincide with the European Convention rights, the courts have been given
greater scale for statutory interpretation, providing more flexibility within
legal proceedings and subjecting the legislature to checks or balances which
arguably undermine Parliamentary sovereignty. Section 3 of the Human Rights Act
1998 (HRA) may require the court to depart from the legislative intention of Parliament
if their intention is not in accordance with the European Convention on Human
Rights (ECHR). As exemplified through the statute, so far as it is possible to
do so, “primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights”.2
Highlighted through the case of Ghaidan
V Godin-Mendoza3,
the issue centres around whether the courts search for a true meaning or
possible meaning of legislation. Lord Cooke stated that the responsibility has
shifted to the courts in that “Section 3 will require a very different approach to interpretation from that to which the UK courts
are accustomed.” To find a Convention-compatible meaning of a legislative
provision seems to be the overriding aim of the interpretative process, rather
than to ascertain the intention of Parliament. Thus, the courts are
looking toward an exterior legal force outside of the jurisdiction of
Parliamentary sovereignty, which itself is insubordinate. Section 4 of the HRA
furthers the perspective that the courts are moving toward a more progressive
ideology outside of the restraints of Parliamentary sovereignty. The section
provides for the remedy of a ‘declaration of incompatibility’ and is applied
where a court cannot interpret a statutory provision in a way that is
compatible with a Convention right. Section 4 arguably cannot be said to
encroach on Parliamentary sovereignty directly, because a declaration does not
invalidate the provision concerned, as stated in Section 4(6). In addition,
Parliament is not required to take remedial action; although it can do so under
Section 10 of Schedule 2 of the HRA. This means that Parliament’s competence to
enact any law is unimpaired, although a powerful restraint has been imposed upon
its freedom to interfere with fundamental rights. Most importantly however, the
capacity to issue a declaration of incompatibility subtly alters the allocation
of powers as Parliament has invited the judges to tell it that it has acted
wrongly by legislating incompatibly with a Convention right.

Whilst a member of the European Union, Parliament
arguably substituted the principle of parliamentary sovereignty and thus their
autonomy, in favour of the benefits provided to states that were members of the
EU. The case of Factortame4
legitimises this concept effectively. The dispute centred upon TFEU Art 495,
which entitles EU nationals to establish businesses in any EU state. Contrary
to that, the UK Parliament enacted the Merchant Shipping Act 1998 to protect
the British fishing industry by preventing foreign nationals from exploiting
British fish stocks. The CJEU held eventually that restrictions imposed by the
act were incompatible with Art 49, yet the House of Lords noted that the
doctrine of parliamentary sovereignty technically prevents the dismantlement of
primary legislation. The CJEU however, reminded the Law Lords that the
supremacy principle, established through the European Communities Act 1972,
requires national courts to apply EU law in preference to national law, and to
ignore any national rule of principle, such as Parliamentary sovereignty, that
would impede domestic courts. The response from the House of Lords was
unprecedented, with them issuing an injunction to suspend the relevant parts of
the act that were breaching EU law. As a result, the courts placed pressure on
the constitutional doctrine of Parliamentary sovereignty by acting against it,
and emphasised their willingness to accept and perhaps progress toward a less
subordinate legal system.  

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Motivated by a growing necessity to establish
a reformed constitutional body, the Constitutional Reform Act 2005 (CRA) brings the institutional relationships between the
judiciary and the other branches of government into line with the changing
substantive role of the courts. The reforms secure the independence of the
judiciary by ‘redrawing the relationship between the judiciary and the other
branches of government’ and putting it on a ‘modern footing’6,
consequently enriching the courts power. Section 3 of the act makes statutory provision
for judicial independence by noting that the Lord Chancellor and other
ministers of the crown “must uphold the continued independence of the judiciary”7.
The significance of this relates centrally to the constitutional function of
judges in interpreting and applying law outside the constraints of internal government
departmental policies. Judges and adjudicators not perceived as independent are
fatally compromised in the eyes of the public, particularly by those whose disputes
are being resolved by them. In providing a statutory basis to ensure judicial
independence, a separation of powers can be assumed, aligning directly to the
United Kingdom’s unwritten constitutional doctrine. A separation of powers is established
further through the CRA’s modification of the office of the Lord Chancellor –
the office reformed to remove the ability of the holder to act as both a
government minister and a judge, an arrangement that ran contrary to the idea
of separation of powers. The reform was motivated by concerns that the historical
admixture of legislative, judicial, and executive power held through one
position, might not conform with the requirements of Article 6 (paragraph 1) of
the European Convention on Human
Rights, because a judicial officer who has legislative or executive
power is likely not to be considered sufficiently impartial to provide a fair
trial. Thus, the implementation of a new Lord Chief Justice grants the
courts arguably greater power, seeing as they no longer are distinctively
conjoined with legislative or executive matters and are allocated as a separate
body with a governing head. Whereas the provision for the reform of the post of
Lord Chancellor and the judicial appointments process involve an explicit relocation
of power between each branch of government, the provisions establishing the new
Supreme Court, in theory, do not. The new court exercises the same formal
powers as the House of Lords and maintains the devolution powers of the
Judicial Committee of the Privy Council, as outlined in section 40. On that
basis, therefore, the creation of the new Supreme Court is the least radical
aspect of the constitutional reforms. However, the removal of the top court
from the legislature and its reformation as an autonomous institution, is
likely to have a significant effect on its constitutional role. Exactly how the
Supreme Court will progress is uncertain – what is clear is that a trend is
developing around the world regarding the increasing power and authority of
Supreme Courts. The creation of a new and autonomous Supreme Court in the UK
therefore, housed in its own building with a distinct identity, suggests a
likelihood that the court will follow said trend.

1 Introduction to the Study of the Law of the
Constitution Eighth Edition, 1915 (LibertyClassics,
1982), pp. 3-4.

2 Human Rights Act
1998 s3. (1)

3 Ghaidan V Godin-Mendoza
2004 UKHL 30


4 R v Secretary of
State for Transport, ex parte Factortame (no.2) 1 AC 603

5 Public Law – Custom

6 K. Malleson
‘Modernising the Constitution: Completing the Unfinished Business’ Legal
Studies Spring 2004.

7 Constitutional Reform
Act 2005 s3 (1)

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