Obstacles to effective scrutiny

Parliament does have opportunities to consider the merits of those Statutory Instruments which are subject to affirmative or negative resolution procedure, but there remain a number of obstacles to effective scrutiny.

Statutory Instruments cannot be amended. Affirmative resolution instruments can only be approved or rejected. As they rarely raise major issues of principle, there is a natural reluctance to go to the length of rejecting the whole Instrument when most of it gives rise to no cause for concern.

There is no realistic prospect of a Statutory Instrument being defeated in the House of Commons. Although in 1994 the House of Lords (on a motion from Lord Simon of Glaisdale) asserted its “unfettered freedom to vote on any subordinate legislation”, in practice there has (so far) been no serious challenge since 1968 to the convention that the House of Lords does not reject Statutory Instruments. Nevertheless, members of the House of Lords have found various ways in which to indicate their concern about particular Statutory Instruments. These have occasionally resulted in Ministers adjusting their proposals.

Very little time is made available for debates on Statutory Instruments in the House of Commons. Affirmative resolution instruments are routinely referred to Standing Committees, rather than debated on the floor of the House. The Committees cannot consider amendments or debate substantive motions: They are required to report that they have ‘considered’ the Statutory Instrument, which is then moved formally in the House. Negative resolution instruments may be ‘prayed against’ within 40 sitting days but only a minority of those ‘prayed against’ are referred (by agreement between the Party Whips) to a Standing Committee, where in any case the same conditions apply. The pressure of time is less acute in the House of Lords. Affirmative resolution instruments and all ‘prayers’ against negative resolution instruments are debated, and all are taken on the floor of the House; but they have accounted for only about 5 per cent of the time of the House in recent years.

Negative resolution instruments usually come into effect about 40 days after being made and laid before Parliament. Members may therefore feel that there is little point in seeking to negate something which has already come into effect, especially given all the attendant practical and legal difficulties.

The sheer volume of Statutory Instruments and their level of detail. This makes it difficult for any individual MP or member of the second chamber to get to grips with the substantive issues.

TASK VIII

a) Read the text, determine the key message in each paragraph.

b) Summarise the text in 150-200 words.

A. The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. In his classic exposition of the doctrine, A. V. Dicey described it as 'the dominant characteristic of our political institutions', 'the very keystone of the law of the constitution'. It is said that Parliament is able to enact or repeal any law whatsoever, and that the courts have no authority to judge statutes invalid for violating either moral or legal principles of any kind. Consequently, there are no fundamental constitutional laws that Parliament cannot change, other than the doctrine of parliamentary sovereignty itself. As a political scientist has put it, 'there is a sense in which the British Constitution can be summed up in eight words: What the Queen in Parliament enacts is law'.

B. Until recently, there has been little doubt about the core of the doctrine, that the courts have no legal authority to invalidate statutes on the ground that they are contrary to fundamental moral or legal principles. As a leading critic of the doctrine concedes, among English lawyers 'it is hard to question Dicey's doctrine without appearing to lose touch with practical reality. Until very recently, it was almost unthinkable that the courts would ever refuse to apply an Act of Parliament.'

C. But recently the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand, and Australia. Sir Robin Cooke, the President of the New Zealand Court of Appeal, was the first eminent judge to do so publicly. After initially expressing 'reservations' about the sovereignty of the New Zealand Parliament, he came to the view that 'some common law rights presumably lie so deep that even Parliament could not override them'. Since then, some other judges in New Zealand, Australia, and Britain have either endorsed that view, or agreed that it is arguable.

D. Recently, the High Court of Australia expressly deferred judgment on the issue: whether the exercise of legislative power by a State Parliament 'is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law is another question which we need not explore'. In Britain, several senior judges have explored the question, in extra-judicial speeches. The Master of the Rolls, Lord Woolf of Barnes, has asserted that there are 'limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold'. Sir John Laws has argued that true sovereignty belongs not to Parliament, but to the 'unwritten constitution', which includes fundamental principles, such as democracy and freedom of expression, that the judiciary can enforce, if necessary, by invalidating statutes. Without going that far, Sir Stephen Sedley has suggested that the doctrine of parliamentary sovereignty has been replaced by 'a new and still emerging constitutional paradigm', consisting of 'a bi-polar sovereignty of the Crown in Parliament and the Crown in the courts.

E. Growing doubt about parliamentary sovereignty among New Zealand, Australian, and British judges has coincided with increasing judicial activism in all three countries. In public law, this has mostly involved the invalidation of actions of the executive government, but also, in Australia, the purported discovery of 'implied rights' in the written Constitution.

F. For causes that are obscure, an increase in both the ability and willingness of judges to control the other organs of government appears to be a worldwide phenomenon. Despite occasional complaints, parliaments and executives in Britain, Australia, and New Zealand have generally acquiesced in, or even tacitly approved of, the expansion of judicial review of executive actions, which does not fundamentally threaten their powers as long as the parliaments retain their capacity to control or even reverse it.16 But that depends on continued acceptance of the doctrine of parliamentary sovereignty. When judges question the doctrine, the potential threat posed by judicial activism to the powers of the legislature and executive is much more serious.

G. What is at stake is the location of ultimate decision-making authority the right to the 'final word' in a legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be claiming that ultimate authority for themselves. In settling disagreements about what fundamental rights people have, and whether particular legislation is consistent with them, the judges' word rather than Parliament's would be final. Since virtually all significant moral and political controversies in contemporary Western societies involve disagreements about rights, this would amount to a massive transfer of political power from parliaments to judges. Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum. It is no wonder that the elected branches of government regard that prospect with apprehension.

H. This apprehension has been voiced in the United Kingdom Parliament. In 1996, Lord Irvine of Lairg, at that time the Shadow Lord Chancellor, initiated a debate in the House of Lords concerning the relationship between the three branches of government. In the presence of Lord Woolf and Lord Cooke of Thorndon (formerly Sir Robin Cooke of New Zealand), he criticized statements by senior judges challenging the doctrine of parliamentary sovereignty as 'unwise', and disparaged the alternative they advocated as 'obsolete'. The Lord Chancellor, Lord Mackay, and Lord Wilberforce also strongly affirmed Parliament's sovereignty. When the Human Rights Bill was introduced into the House of Lords in 1997, the accompanying White Paper stated that a power to invalidate Acts of Parliament is something 'which under our present constitutional arrangements they [the judges] do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it.'

I. The doubts expressed by judges such as Lord Woolf and Sir Robin Cooke are strongly supported and, no doubt, partly inspired by the work of some academic lawyers who have criticized the doctrine of parliamentary sovereignty on both historical and philosophical grounds. 'Modern assertions of unlimited sovereignty', says one leading critic, 'rest on a misunderstanding of constitutional history'. The main historical criticism is that the doctrine is a relatively recent invention of academic lawyers, particularly Sir William Blackstone, John Austin, and Dicey, influenced by the tradition of legal positivism founded by Thomas Hobbes, who erroneously argued that there is necessarily a sovereign law-maker at the foundation of every legal system. The doctrine was successfully foisted upon a gullible legal profession, which abandoned the traditional common law understanding that law-making was subject to fundamental legal principles. Or so it is alleged, by critics who disparage the doctrine as an authoritarian, legal positivist 'dogma' that misconceives the real foundations of the British constitution.

J. The critics attempt to clarify those real foundations through philosophical as well as historical analysis. The doctrine of parliamentary sovereignty maintains that Parliament has ultimate authority to determine what the law shall be. It is the responsibility of judges to declare what the law is, but in doing so, they are bound to accept every Act of Parliament as valid law. They can change the common law, but because it is subordinate to statute law, their decisions are always liable to be overturned by Parliament. The critics reject this doctrine as a misunderstanding of the relationship that must logically hold between statutory and common law. They argue that since it is the responsibility of judges to declare what the law is, the extent of Parliament's lawful authority to legislate is necessarily a matter for the judges to determine. In other words, it is necessarily a matter of common law, which is a body of judicial decisions based on fundamental principles such as justice and the rule of law. It follows that Parliament is entitled to override much of the common law, but not its most fundamental principles, because they are the ultimate source of its own authority.

TEXT 5 The Composition of Parliament

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