Human Rights and Parliamentary Sovereignty

Question 1

This essay discusses the human rights frameworks contained in the Human Rights Act 1998, the European Convention of Human Rights, and EU Charter and how it interacts with the principle of parliamentary sovereignty in the UK. This essay critically evaluates the extent to which developments within this area challenge or reinforce the principle of parliamentary sovereignty in the UK.

The doctrine of parliamentary sovereignty has been in its traditional sense as explained by Dicey to mean that the parliament is sovereign in the pure and absolute sense. There are three aspects to the doctrine of parliamentary sovereignty in this classic sense, which is that the parliament makes laws without restriction or limitation as to the subject matter and such law can be repealed the parliament because parliament does not bind the successor and that law made by the parliament is not subject to judicial review. The doctrine of parliamentary sovereignty denies any legislative superior to the parliament. The question for evaluation is whether the human rights frameworks contained in the Human Rights Act 1998, the European Convention of Human Rights, and the EU Charter challenge or reinforce the principle of parliamentary sovereignty in the UK.

The ECHR provisions was incorporated in UK law through the enactment of the Human Rights Act 1998. The UK’s membership of the European Union and the ECHR has raised questions about how far the human rights framework created as part of such membership has challenged the principle of parliamentary sovereignty. There has been a viewpoint that human rights framework somewhat challenges the orthodox parliamentary sovereignty because the Human Rights Act 1998 allows courts to review legislation for the purpose of harmonising it with the ECHR. Similarly, the European Communities Act 1972 also requires courts in the UK to give effect to the EU law, including the EU Charter as ‘Directly effective EU law’ under Section 2(1).

It can be stated here that the courts in the UK have used the provisions in the Human Rights Act 1998 and European Communities Act 1972 to review the domestic legislations for assessing compatibility between the human rights framework in the ECHR and EU Charter and the domestic legislations. This may raise a reasonable argument that the human rights framework does challenge the doctrine of parliamentary sovereignty. As the traditional concept of parliamentary sovereignty focusses on the supreme character of the parliamentary law and its being out of the purview of judicial review, such an argument may be made and substantiated on the basis of cases where the courts have reviewed the parliamentary legislation. In R (Factortame Ltd), the House of Lords suspended the legislation of the parliament and referred the matter to the European Court of Justice when there was an apparent conflict between the parliamentary law and the EU law. The very fact of suspension of the parliamentary law and referral of the matter to the ECJ may seem to be a considerable challenge to the doctrine of parliamentary sovereignty because traditionally the parliamentary law is outside the purview of the judicial review.

Moreover, even with respect to the limits of the parliament’s power to enact law, which in the traditional context has been unlimited, there is an obvious challenge to the parliamentary sovereignty when the Human Rights Act 1998 can be used to put fetters on such unlimited powers of the parliament. Section 4(2) of the Human Rights Act 1998 gives the power to national courts to declare incompatibility between parliamentary law and any ECHR rights. The House of Lords used this provision in A v Secretary of the State to declare incompatibility between the ECHR and indefinite detention provision in the new anti-terrorism legislation. Eventually, the parliament decided to not implement this provision, which suggested that the parliament considered that there was some limitation on its ability to make such a law and consequently a challenge to the doctrine of Parliamentary sovereignty.

The two cases discussed above suggest that the human rights framework has posed some challenge to the parliamentary sovereignty doctrine because it has in some ways limited or restricted the parliament from exercising its powers like it was able to do prior to the human rights framework coming into relevance. Nevertheless, can it be said that the principle of parliamentary sovereignty stands being watered down or interfered with in a significant way? It can be argued that any challenges that are placed before the parliamentary sovereignty principle are in fact devised by the parliament itself (through its enactment of the human rights framework in Human Rights Act 1998) and that the parliament is not prevented from changing this state of affairs in future.

Professor Mullen has argued that any change to the nature of parliamentary sovereignty can be effected only by the assent of the other institutions of government and not just a judgment of the court. Indeed the recent judgment of the Supreme Court in Miller v Secretary of State goes to provide support to this argument that the doctrine of parliamentary sovereignty remains orthodox and traditional even after the human rights framework came into effect through the Human Rights Act 1998. The doctrine of parliamentary sovereignty is central to the British Constitution. Even though the enactment of the Human Rights Act 1998 may have allowed courts to review the legislations of the parliament in order to assess compatibility with the ECHR and even if the parliament may have thought it pertinent to not exercise power to make law in an unrestricted sense as to subject matter (in A v Secretary of the State), it has been argued that the parliament can alter this position by changing the Human Rights Act 1998 in future, in which case the orthodox context of parliamentary sovereignty will once again become unchallenged.

The recent Miller case decided by the UK Supreme Court demonstrates that parliament still remains the sovereign in the orthodox sense. Although the Miller case does not specifically relate to the human rights framework, the decision does highlight the continuing relevance of parliamentary sovereignty which also has implications for human rights framework and its interaction with the doctrine of parliamentary sovereignty. In this case. the Supreme Court upheld the supreme authority of the parliament irrespective of the powers given to the executive by the EU law. Ewing has argued that Miller reinforces orthodox doctrine of parliamentary sovereignty and the judgment is a “clear re-assertion of parliamentary sovereignty as the fundamental principle of the constitution, Miller has swept aside recent uncertainties, equivocations and qualifications.” In effect, Ewing accepts that there have been uncertainties related to the interaction between the EU law and the doctrine of parliamentary sovereignty and there also have been qualifications related to the scope of the parliamentary power or the challenges posed to it by the EU law. However, as noted by Ewing, the Miller decision is clearly reinforcing the orthodox principle of parliamentary sovereignty.

To conclude this essay, the doctrine of parliamentary sovereignty has been in some respects challenged by the human rights framework and the interaction between the two has at times led to the parliamentary law being reviewed or declared incompatible with the ECHR or even self-restriction by the parliament as in the aftermath of the Belmarsh decision (A v Secretary of State). However, it can be fairly argued that it is parliament that has created these restrictions or challenges for itself by enacting the Human Rights Act 1998 and the parliament can also in future water down the effect of Human Rights Act 1998. In that sense, the orthodox version of the doctrine of parliamentary sovereignty is still relevant. This is also substantiated by the Miller decision of the Supreme Court in which the court refused to allow the executive to bypass parliament.

Question 2

Defendant 1

Issue 1

Whether the actions of the two men in the park satisfy the actus reus and mens rea for Fred’s murder.

Rule

In order to satisfy the actus reus condition for murder, the defendant must cause the killing. The unlawful killing must be with malice afterthought. There must be factual causation, which is related to the but for test and legal causation which means that the injury must be an operating and substantial cause of death.

The act of the defendant will amount to murder based on the fault element at time of the injury, which are intention to kill or cause grievous bodily harm likely to cause death.

Analysis

Fred was attacked by two men as he walked past the local park. The two men violently pushed Fred to the ground and kicked him in the head. Does that constitute actus reus and mens rea for murder? In this case, the action of the defendants may be said to be satisfying actus reus because their actions led to his death and the kind of injury inflicted may be said to be with intention to kill or cause grievous bodily harm likely to cause death as they kicked him in his head.

Conclusion

The actus reus and mens rea elements are satisfied.

Issue 2

Whether there is a break in the chain of causation for Fred’s murder.

Rule

Factual causation or ‘but for’ causation requires the establishment of the argument that the result would not have occurred but for the actions of the accused. In R v White, causation was not established because defendant had not caused the death which was caused ultimately by a heart attack.

Analysis

George lost concentration for a moment and failed to notice that the anaesthetic was running low. Consequently, Fred began to wake up and, before it was possible to put him under again, Fred went into shock and died.

Conclusion

The but for test is not satisfied.

Defendant 2

Issue

Whether George has criminal liability for the death of Fred under gross negligence manslaughter

Rule

R v Adomako, provides a four stage test for outlining the necessary elements of a gross negligence manslaughter: duty of care to the deceased by the defendant; breach of that duty of care; breach of duty becomes the cause of the death of the victim; and the breach of duty is grossly negligent, making it a crime.

Analysis

Fred was administered a full anaesthetic by George but during the operation, George lost concentration for a moment and failed to notice that the anaesthetic was running low which led to the death of Fred.

Conclusion

Gross negligence manslaughter is established.

Cases

• A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.
• Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421.
• Jackson v Attorney General [2006] 1 AC 262.
• Miller & Another, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5.
• R v Adomako (1994) 3 All ER 79.
• R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.
• R (Jackson) v Attorney General [2005] UKHL 56.
• R v Jordan (1956) 40 Cr App R 152.
• R v West (1848) 2 Cox CC 500.
• R v White [1910] 2 KB 124.
• Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568.

Books

• Ashworth A and J Horder, Principles of criminal law (Oxford University Press 2013).
• Barnett H, Constitutional & Administrative Law (Routledge 2014).
• Bingham T, The Rule of Law (Penguin 2010).
• Broadbent G, Public Law Directions (Oxford University Press 2009).
• Dicey AV, Introduction to the study of the law of the constitution (Macmillan 1915).
• Fenwick H, Civil Liberties and Human Rights (Routledge 2007).
• Morris T and Louis Blom-Cooper, Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life (Waterside Press 2011).
• Slapper G and David Kelly, The English Legal System (Oxon: Routledge 2009).

Journals

• Ewing K, ‘Brexit and parliamentary sovereignty’ (2017) 80 (4) The Modern Law Review 711.
• Mullen T, ‘Reflections on Jackson v Attorney General: Questioning Sovereignty’ (2007) 27(1) Legal Studies 1.