It is the purpose of this paper to consider the effect that European integration of member states has had on national Parliaments.
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The recent constitutional developments of the judiciary will be discussed and how their increase of functions has led to a limitation of the role of the legislative sphere. Further, it will be shown that the recent developments need to be supplemented further with a codified constitution in Member States where such a constitution is not enshrined, which would lay out the guiding principles of the state and provides protection to the judicial sphere in conducting their legal functions. This is particularly urgent when one considers that parliamentary systems usually unite legislature and executive for the sake of expediency, the United Kingdom being an example of such.
The greatest effect that European integration has had on national Parliaments has been in the judicial sphere. For a long time, the sole function of the judiciary was to implement the legislation according to the intentions of Parliament when it was created. A court’s function was, therefore, one of law enforcement than creation. Indeed, in McLoughlin v O’Brian , Lord Scarman has stated “the objective of judges is the formulation of principles; policy is the prerogative of Parliament”.
The passing of the European Convention of Human Rights was the catalyst for a whole new phase of judicial importance. Not only was there a higher authority of constitutional principles worthy of the term “codification”, national court’s were from then onwards compelled to interpret national legislation in a way to be compatible with the European Convention on Human Rights, as far as possible. According to the judgment in Jackson v Her Majesty’s Attorney General  there were limits to Parliamentary sovereignty where “constitutional fundamentals were at risk” for the first time. This is not to say that that marked an end for Parliamentary supremacy; indeed, section 3 of the Human Right Act 1998 states that where UK legislation is in conflict with Convention rights, “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”. The judges are therefore compelled to interpret in a certain manner in that jurisdiction. Regardless, where statute is clearly in breach of a convention right, the convention rights win out.
In practice, an element of restraint on the part of Parliament is needed. Regardless, the separation of powers doctrine is certainly closer to its theoretical ideal – the Parliamentary sovereignty of the United Kingdom is significantly restrained with safeguards in the form of a judiciary, on both a European and domestic level.
In 2011, the question of this new function arose in the United Kingdom in relation to the use of injunctions. An injunction is a court order that requires a party to do or refrain from doing certain acts. In some cases, known as “super injunctions”, the court has provided for anonymity and a prohibition on publishing or disclosing the very existence of the order. According to the Master of the Rolls (2011), restrictions may also be placed on access to documents on the court file. The basis for such an injunction is Article 8 of the Convention, which the courts have developed as part of the common law in the absence of statutory privacy laws in the UK. Professor Zuckerman (2010) has argued that super-injunctions created a new kind of procedure for an “entire legal process […] conducted out of the public view” of which the very existence is “kept permanently secret under pain of contempt”. There has been uneasiness to this concept.
When we consider the separation of power principle, how has this development affected itIt has been argued by the Master of the Rolls (2011) that the courts have gone beyond their power to develop common law by introducing this right into English law. Others have suggested that the enactment of the Human Rights Act by Parliament effectively created the right of privacy, a foundation that has merely been developed as a case came before the judiciary to be adjudicated.
Certain parliamentarians have criticised the judiciary and even used parliamentary privilege to thwart the injunctions by naming concerned individuals in the House, such as John Hemming in the House of Commons Debate of 23 May 2011 . They have in turn faced criticism themselves; their action being seen to be a defiance of the law through brazen attempts to undermine it. Indeed, the Speaker of the House of Commons (HC Deb 23 May 2011) has said that he strongly deprecated “the abuse of parliamentary privilege to flout an order or score a particular point.”
At the very least, it is clear that the judicial interpretation in this case has been liberal. This, however, doesn’t mean it is unconstitutional. From the court’s point of view, their function is to interpret the law as it is before them and although there has been no specific statute regarding privacy laws, the Human Rights Act 1998’s incorporation into the UK constitution gives the judiciary the function to interpret all cases in light of the European Convention on Human Rights. This is not a request, but a demand; and it was effectively Parliament that made this demand. They changed the constitution; if it appears unfavourable to them now, they still retain the power to change it again.
This example clearly demonstrates how European integration has limited the powers of the United Kingdom parliament. Through the intervention and invention of the judiciary, aspects of the European Convention on Human Rights have been incorporated and developed in domestic law, even in circumstances where there has been clear disapproval from the legislative sphere. Nevertheless, the current situation does require a level of tolerance from parliament as it retains the ability to change the balance of power.
The development of the Human Rights Act 1998 went some way in providing a sound codified foundation to the United Kingdom constitution; however, unlike the constitutions of other states the mechanisms to protect it are largely uncodified. This strange position has meant that they are often protected by not only common law but informal conventions, a position that can easily be modified by Parliament through further legislation. In a sense, Parliamentary sovereignty still prevails. Lord Woolf has argued in M. v. Home Office  that “the crown’s relationship with the courts does not depend on coercion”, but on a state of trust. This is an admirable position but one which is open to abuse. Further codification of the United Kingdom should be a priority if the political institutions are to be deterred from moving the goalposts on a whim. Conversely, in jurisdictions where the European Convention on Human Rights has been enshrined in the national constitution, the integration into Europe has been more complete with the particular rights more difficult to modify.
Returning to the issue of super-injunctions, the judiciary in the United Kingdom is to be commended for the noble pursuit of its legal function. The judiciary can only judge what the legislature puts before it and the Human Rights Act and the European Convention on Human Rights has provided both conventional rights and the legal tools to enforce them. If there is controversy for this course of action, then the blame must lie with the legislative sphere for incorporating it in the first place. Effectively, Parliamentary sovereignty is still relevant and the government still retains the power to change the constitutional playing field – see N.W. Barber (2009). This is perhaps already in motion as the Attorney General announced in the House of Commons Debate on 23 May 2011 that a joint committee of both Houses would be established to examine the issues of privacy and the use of anonymity injunctions.
The super-injunction debacle has highlighted that the separation of powers still requires work. Article 9 of the Bill of Rights 1689 sets out the principle of privilege of Parliament. According to Lord Neuberger, Master of the Rolls (2011), it is “an absolute privilege and is of the highest constitutional importance”. He also pointed out that any attempt by the courts to contravene Parliamentary privilege would be unconstitutional and that no court order could restrict or prohibit Parliamentary debate or proceedings. On the other side of the coin, there is a convention that Members of Parliament will not criticise judicial decisions. This is complemented by the sub judice rule that guards against Parliamentary interference in cases currently before the courts. The sub judice rule is intended to “defend the rule of law and citizens’ right to fair trial” according to the Master of the Rolls (2011). Indeed, it has been stated that “the judiciary should be seen to be independent of political pressures. “Thus, restrictions on parliamentary debate should sometimes exceed those on media comment” according to the Joint Committee on Parliamentary Privilege (1998-1999). It seems clear that this is a perfect area for fresh legislation. Two informal, opposed conventions often require judicial direction but given the constitutional proximity to the courts, it would perhaps be prudent to allow Parliament to make this constitutional change.
This restraint of the political branches of the state in respecting this convention of the court has been tested elsewhere. In November 2003, the UK Government introduced the Asylum and Immigration (Treatment of Claimants) Bill, Clause 1 of which sought to oust judicial review of immigration tribunal decisions. The Joint Committee on Human Rights (Fifth Report of Session 2003-4) concluded correctly that “ousting the review jurisdiction of the High Court over the executive is a direct challenge to a central element of the rule of law, which includes a principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals”. The Bill passed through the Commons in its entirety but thankfully, the clause was dropped through debate in the Lords. The experience is a clear example of attempts to exclude legal scrutiny from the exercise of public power and demonstrates how statutory legislation can so easily remove safeguards to the constitution.
In conclusion, I would suggest that the solution to these problems is the drafting of a British constitution defining not only the rights and freedoms of its citizens; but of the separate functions, powers, and limits of each branch of state. Until recent years, the doctrine of the separation of powers was somewhat too general to provide much assistance in resolving a range of existing and emerging difficulties at the interface between courts and the other branches. Recent moves have formalised a separation of powers, but there is still work to be done.
Special legislation is required so that the politicians of the day can not influence a rebalancing of the separation of powers easily. There are further advantages; the constitutional sources currently in place are vague and often contradictory; a user-friendly constitutional charter that can be found in most European countries would be of great advantage to the ordinary citizen. Clarification is key, especially when one considers the ongoing disputes about the applicability of European legislation in a domestic context. Most importantly, without enshrinement in a codified constitution and the special protections against modification that go along with it, there will always be a danger that the privileged power of the executive will be used to reverse the good work that has gone before. This would surely create the very tyranny of which James Madison spoke.
McLoughlin v O’Brian  1 AC 410
Jackson v Her Majesty’s Attorney General  UKHL 56.
v. Home Office  1 A.C. 377
Zuckerman, Super Injunctions—Curiosity-Suppressant Orders Undermine the Rule of Law, C.J.Q. Vol. 29 (2010)
N.W. Barber, Laws and Constitutional Conventions, L.Q.R. 2009, 125(Apr)
HC Deb 23 May 2011
Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions and open justice
Joint Committee on Parliamentary Privilege, Session 1998–1999, Parliamentary privilege, HL 43-I / HC 214-I
Fifth Report of Session 2003-4 of the Joint Committee on Human Rights (HL 35/HC 304)
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