The sovereignty of parliament and property: this week’s human rights roundup

11 April 2011 by

It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts.

by Melinda Padron

In the news last week:

At a time when the sustainability of the principle of Parliamentary sovereignty in modern British society is being called into question, Lord Neuberger gave a speech entitled “Who are the masters now?”, where he made a case for Parliamentary supremacy.

He suggested the principle remains absolute for five main reasons:

(1) Parliamentary sovereignty is the cornerstone of our constitutional settlement;

(2) Parliament does not want judges to have the power to overrule statutes (and he added that neither do judges);

(3) arguments to the contrary are far removed from reality that they undermine the main proposition they seek to support;

(4) even the strongest advocates of limiting Parliamentary sovereignty accept that such could only be done in the most exceptional of circumstances;

(5) we live in a world where democratic accountability is of the essence, and as such it would be undesirable for unelected judges to exercise powers to limit Parliament.

Lord Neuberger then continued with a historical overview of the principle, and later moved on to tackle the recent developments which have arguably cast a shadow over the absolute nature of this principle: the Jackson judgement and the HRA/ECHR. In the end, although he admitted that Laws LJ may be right when he stated that “a gradual reordering of our constitutional priorities [may] bring alive the nascent idea that a democratic legislature cannot be above the law”, he argued that we are not there yet, and that only a written constitution driven by the electorate could limit Parliamentary sovereignty. See Adam Wagner’s post for a detailed analysis of the speech.

Another speech was delivered last week by Lord Hope. In a lecture to the Scottish Young Lawyers Association, Lord Hope recalled his journey as a young man into the legal profession and argued that the Scottish legal system is secure in the hands of the UK Supreme Court.

Also in the news last week was the second part of Aidan O’Neill QC’s post on religion and the courts, published in the UK Supreme Court Blog. The post discusses how the UK courts and the ECtHR have dealt with the Ministerial exception, concluding that religiously based claims now have to abide by respect for human rights generally – and equality law in particular.

On the government front, there was an announcement that fathers of babies due on or after 3 April 2011 will be able to take up to six month additional paternity leave, and a curious absence of any reference to the issue of prisoners’ vote in the US State Department 2010 Human Rights Report on the UK.

In the courts:

Not a judicial decision, but following our post on WL (Congo) & KM (Jamaica), Samantha Knights comments on the positive and negative aspects of this ruling.
New London College Ltd, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 856 (Admin) (07 April 2011)
Suspension of Hounslow company’s licence to provide further education to non EEA nationals unlawful and breach of human rights (peaceful enjoyment of property)
Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011)
Morbidly obese man fails human rights challenge to NHS refusal ( wasn’t obese enough) to provide gastric bypass surgery. No breach of article 8 (not engaged) or 6.
BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011)
 
Court of Appeal: Control order against terrorist suspect was flawed. Home Secretary’s evidence “too vague and speculative”.
W (Children) [2011] EWCA Civ 345 (30 March 2011)
 
Court of Appeal overturns rejection of mother’s plea to relocate children to Australia. Psychological effect of refusal on mother not sufficiently taken into account.
…and don’t forget our recent posts:
 

2 comments


  1. ObiterJ says:

    If one had to come up with a power sustaining device then Parliamentary Sovereignty would be it.

    Taking Lord Neuberger’s points as numbered in this post. If points 1 and 2 are right then how can point 4 ever arise? A body is either sovereign or it is not. If sovereign it can be an absolute dictator. If not sovereign then what are the limits on whatever power it has?

    If the people are unhappy with this position then a new constitutional settlement ought to be found. However, I do not see any clamour to actually alter things.

    I suspect that it is right that a written constitutional might be able to place limits on this Parliamentary Sovereignty. I have seen very few cogent explanations of how one might, by legal and peaceful means, get such a written constitution. The argument of Richard Gordon QC (“Repairing British Politics: A Blueprint for constitutional change) comes as close as I have seen.

    After Cadder v HM Advocate, do the Scots actually see their legal system as safe with the Supreme Court? Do we have evidence to this effect?

  2. John Hirst says:

    I think I have spotted differences of opinion between Lord Neuberger, MR’s speech and that by Lord Hope of Craighead’s speech. I need to read them both again to compare and contrast.

    In relation to Aidan O’Neill, QC, I cannot understand why he did not argue in McGeogh that under EU law with the CJEU “Its mission is to ensure that “the law is observed” “in the interpretation and application” of the Treaties. The Court reviews the legality of the acts of the institutions of the European Union; ensures that the Member States comply with obligations under the Treaties” (Wikipedia).

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