by Alison L Young. Oxford/Portland: Hart Publishing, 2009. 200pp. Hardback. $95.00/£45.00. ISBN: 9781841138305.
Reviewed by Rory O’Connell, Senior Lecturer, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk.
A Scottish judge once described the “unlimited Sovereignty of Parliament” as a “distinctively English principle,” one of the “peculiar characteristics” of the old English Parliament (MACCORMICK 1953). This is the doctrine expounded by the nineteenth century writer Dicey that, as a matter of law, the UK Parliament can make or unmake any law whatsoever (Dicey 1914). It should be said that the Scottish judge was being somewhat unfair in describing the doctrine as “distinctively English;” for much of the Nineteenth and Twentieth centuries most European countries practised something like parliamentary sovereignty. This changed in Europe after the Second World War when states started to create courts to protect the constitution and basic rights from infringement by parliaments. In the UK this doctrine only came under strain towards the end of the Twentieth Century. This was due to the influence of European Union law, the introduction of devolution, the expansion of executive power and of course the adoption of the Human Rights Act 1998 (HRA) (Elliott 2004).
Alison Young explores the implications of the HRA for parliamentary sovereignty. The HRA grew out of a desire to give greater protection to human rights without actually entrenching them in such a way that Parliament would be limited by them. The HRA requires that courts (actually everyone, but most relevantly courts) read and give effect to statutes so as to make them compatible with the rights found in the European Convention on Human Rights 1950 (“Convention rights”) (HRA § 3). If it is not possible to find a convention compatible with interpretation of a statute then certain courts are empowered to issue non-binding Declarations of Incompatibility (HRA § 4). The UK Parliament may then choose to amend the incompatible legislation – or may choose not to. The Act appears to allow for the protection of human rights while preserving parliamentary sovereignty. This allows for a balance to be struck between the principles of democracy (represented by parliamentary sovereignty) and human rights.
Young’s treatment of this topic falls in to two parts. The first part of the book examines in some detail the nature of parliamentary sovereignty. The second part offers a justification of the HRA model as embracing a form of democratic dialogue between the courts and Parliament. This is influenced by Canadian discussions of dialogue (p.112). The first part of the book is more likely to be of interest to scholars working on UK public law (or other jurisdictions with a parliamentary sovereignty principle). The second part is of wider interest to constitutional [*701] scholars, dealing as it does with the widespread theme of the need to balance rights and democracy.
There are three aspects of the book which are especially welcome and also some aspects of it where the insights offered by the author could have been usefully improved.
First, the book deserves reading (and re-reading) for the detailed analysis of parliamentary sovereignty. This turns out to be a sophisticated and nuanced idea. For example, despite the apparent simplicity of the idea of parliamentary sovereignty, which seems to preclude any Parliament entrenching statutes, it turns out there are different mechanisms for achieving an “entrenchment effect” (pp.54-60). These mechanisms involve use of the judicial power to interpret statutes to achieve results similar to entrenchment.
Entrenchment stronger than this is possible but depends on which version of parliamentary sovereignty is accepted. Young explains the difference between two different models of parliamentary sovereignty: the “continuing model” and the “self-embracing model” (p.66). A parliament enjoying continuing sovereignty has the legal power to do anything except limit its own sovereignty; a parliament enjoying self-embracing sovereignty may do anything including changing its own composition and the manner and form in which legislation is passed. In addition to explaining these models, Young discusses the logical flaws in both theories. She also demonstrates how it is possible for statutes to be entrenched under either model of parliamentary sovereignty. Whilst this is straightforward under a self-embracing theory, it is not so straightforward under the continuing sovereignty theory. Nevertheless there are two ways to achieve entrenchment, of which the more important is the idea that legislators, courts and other officials might achieve a change in the Hartian Rule of Recognition (p.82).
This discussion is fascinating for the insight into the apparently simple idea of parliamentary sovereignty. Sometimes the discussion leads to conclusions that, however sophisticated, do not seem to have practical significance. For instance, Young believes that it is compatible with continuing parliamentary sovereignty for the Rule of Recognition to be changed, such that only a statute passed in the regular manner and whose content is compatible with Convention rights would be law (p.93). Possibly she means that a system embracing continuing parliamentary sovereignty could adopt such a Rule of Recognition. However once such a Rule of Recognition is accepted, it seems that parliament is no longer sovereign in the sense of being able to pass laws having any substantive content whatsoever. It is difficult to see the practical difference between such a system and a system with an entrenched Constitution.
The two other welcome aspects of the book relate to its second part. Here Young is no longer discussing the “distinctive” doctrine of parliamentary sovereignty, but the more general constitutional conundrum of how to protect both human rights and democracy. Placing UK constitutional discussions in this wider context makes it clearer that the UK Human Rights Act represents a distinctive answer to a [*702] general question. In this part (and this is the third welcome feature), Young discusses questions that are generally relevant to constitutional scholars, such as when should a court reinterpret legislation to make it compatible with human rights and when should it issue a non-binding Declaration of Incompatibility. These are powers similar to those exercised by courts in other jurisdictions, though they are known by different names (e.g., the French Constitutional Council can declare bills to be compatible with the Constitution, but only if they are interpreted in a manner compatible with the Constitution; the German and South African Constitutional Courts can issue declarations of invalidity but suspend the invalidity for a time to allow the legislature to respond to the finding). There is also useful discussion about whether courts should defer to political institutions and how courts should deal with litigation raising complex social issues (pp.150-155). In doing this, Young offers some clarifications about the standards developed by UK courts when dealing with these issues. This is often very sound, especially the warning to avoid giving a double consideration to issues of social complexity when deciding rights cases.
Having identified three welcome and interesting features of the book, let me suggest some ways in which the author’s insights might have been made even more rewarding.
First, the book largely ignores questions about devolution, apart from a few brief references (e.g., a footnote on p.134). Scottish and Northern Irish commentators have sometimes had interesting discussions about parliamentary sovereignty (e.g., Calvert 1968, 11-29). The Northern Ireland peace process has raised some issues about sovereignty in relation to the series of Acts amending the Northern Irish constitutional settlement (Harvey 2003). There is no reference to a House of Lords decision on appeal from Northern Ireland where the Law Lords discuss the interpretive approach appropriate to constitutionally important statutes (ROBINSON 2002). Some of the comments in that case would be relevant to Young’s discussion of interpretation and constitutional statutes. The most important reason, though, to study the devolution dimension is that it raises an important objection to the argument that the HRA compromise is about a balance between democracy and rights. Two of the devolved assemblies in the UK have primary law-making power, but the statutes they produce do not benefit from the doctrine of parliamentary sovereignty (judges can invalidate them if they breach Convention rights, for example). If the argument for the HRA compromise is based on democracy, then defenders of that compromise should explain why statutes enacted by the democratically elected assemblies in Scotland and Northern Ireland can be overturned by judges (Himsworth 2001).
Second, discussions about parliamentary sovereignty and democratic dialogue are sometimes very abstract. I would have found it interesting to read about instances where the UK Parliament (or the Government which often seems effectively to control Parliament) has invoked parliamentary sovereignty to achieve results that would have been more difficult in a system without parliamentary sovereignty (Jennings 1952, 140-142). There are practical [*703] examples of this. For instance, Parliament once amended the constitutionally significant Bill of Rights 1688 so as to enable one MP to sue journalists for defamation (Leigh and Vulliamy 1997). Other Parliaments might have tried to do the same, but it would not have been so easy to achieve. I would also have appreciated more information about how the UK legislature has actually responded to Declarations of Incompatibility (see for instance the Joint Committee on Human Rights 2007-2008). Young notes Tushnet’s criticism of democratic dialogue models that they are unstable: they collapse into parliamentary sovereignty, or they solidify into judicial supremacy (p.119). It would have been interesting to learn how this has played out in practice in the UK.
Finally, I would have liked to have read more about Young’s ideas on democracy. Young discuss the ideas of democratic dialogue and of Diceyan democracy as being a self correcting unitary democracy. I would have enjoyed reading more about how these ideas relate to debates about the merits or representative, deliberative, participatory or other models of democracy. I would have liked to learn more about any implications which flow from the failure of UK political institutions to live up to democratic ideals (Fredman 2001). Young identifies some important shortcomings in the quality of democracy in the UK and concludes that this justifies judicial action to protect minorities from majoritarian democratic decisions (pp.132-133). This is a valid and important conclusion, but could have been pushed further. It would have been useful to consider whether there is a legitimate role for judges to use human rights law to promote democratic practices (Ely 1980; Nino 1993; O’Connell 2006).
Calvert, Harry. 1968. CONSTITUTIONAL LAW IN NORTHERN IRELAND. London: Stevens and Sons.
Dicey, A.V. 1982 . INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION. 8th ed. Indianapolis: Liberty Fund.
Elliott, M. 2004. Parliamentary Sovereignty under Pressure. INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 2:545.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST. Cambridge: Harvard University Press.
Harvey, Colin. 2003. “On Law, Politics And Contemporary Constitutionalism.” FORDHAM INTERNATIONAL LAW JOURNAL 26:996.
Fredman, Sandra. 2001. “Scepticism under Scrutiny: Labour Law and Human Rights.” In SCEPTICAL ESSAYS ON HUMAN RIGHTS, edited by T. Campbell, K. Ewing and A. Tomkins. Oxford: Oxford University Press.
Fredman, Sandra. 2008. HUMAN RIGHTS TRANSFORMED: POSITIVE RIGHTS AND POSITIVE DUTIES. Oxford: Oxford University Press. [*704]
Himsworth, Chris. 2001. “Rights versus Devolution.” In SCEPTICAL ESSAYS ON HUMAN RIGHTS, edited by T. Campbell, K. Ewing and A. Tomkins. Oxford: Oxford University Press.
Jennings, W. Ivor. 1952. THE LAW AND THE CONSTITUTION. London: University of London Press.
Joint Committee on Human Rights. 2007-2008. Response to Human Rights Judgments: Annual Report 2008. UK: Parliament.
Leigh, David, and Ed Vulliamy. 1997. SLEAZE : THE CORRUPTION OF PARLIAMENT. London: Fourth Estate.
Nino, Carlos S. 1993. “A Philosophical Reconstruction of Judicial Review.” CARDOZO LAW REVIEW 14:798.
O'Connell, Rory. 2006. “Towards a Stronger Conception of Democracy in the Strasbourg Convention.” EUROPEAN HUMAN RIGHTS LAW REVIEW: 281-293.
MacCormick v Lord Advocate  SLT 255.
Robinson  UKHL 32,  NI 390.
© Copyright 2009 by the author, Rory O’Connell.