Concept of Parliamentary Supremacy

A.V Dicey, in his book An Introduction to the Study of the Law of the Constitution (1885), put forward his concept of Parliamentary supremacy that was; parliament has the right to make or unmake any law whatsoever and that legislation cannot be overridden or set aside by any person or body. A third aspect was that parliament could not bind a successive parliament or be bound by a predecessor. The introduction of the European Communities Act 1972 and the Human Rights Act 1998, both incorporated differently into UK law, have both distorted Dicey’s traditional concept.

The European Community was founded in 1957 by six member states signing the Treaty of Rome. The UK eventually signed the Treaty, but not until 1972 when it too became a member. Having a dualist approach to international law the UK necessarily incorporated the EC Treaty into UK law under the European Communities Act (ECA) 1972. The most important parts of the ECA are probably sections 2 and 3. Section 2 provides that EU law shall be directly applicable in the UK and under s3, decisions of the ECJ are binding.

From the onset, it should be stated that the ECA 1972 is not entrenched and can be repealed at a later date if that is the desire of Parliament and in this respect, it provides no threat to parliamentary sovereignty. Whilst it is in force however, the concept as Dicey explained it is somewhat different. Whilst s2 (1) is very much straightforward in that it gives effect to EU law into UK law, s2 (4) is more contentious in its influence over established common law doctrines.

The effect of s2(4) is that European law is given primacy over inconsistent UK law by both construing and giving effect to European law over Acts of Parliament. Where there is direct conflict between EC and UK law then priority must be given to directly applicable Community law, McCarthy’s Ltd V Smith [1979] 1 WLR 1189. Indeed, in Factortame Ltd v Secretary of State for Transport [1991] 2 All ER 697 the ECJ held that the UK courts must suspend incompatible UK legislation. The Merchant Shipping Act 1988 was subsequently amended to comply.

In terms of construing legislation in light of EC law, the prevailing literal approach of the English legal system has been discarded in favour of the purposive approach. In Lister v Forth Dry Dock Ltd [1989] 1 All ER 1134 the House Of Lords found it necessary to use this approach in order to ensure proper implementation of the EC Directive concerning protection of employees rights.

The question of implied repeal to statutes enacted post ECA 1972 was answered by Law LJ in Thoburn v Sunderland Cc [2002] EWHC 195. Laws LJ identified two different types of acts, ordinary and constitutional. He concluded that the doctrine of implied repeal did not apply to constitutional acts such as the ECA 1972 and inconsistent domestic law should be modified.

The UK was a founding member of the European Convention of Human Rights and Fundamental Freedoms (ECHR) and one of the first states to ratify the Treaty in 1951, although it did not accept the optional clauses that allowed individuals to petition the Strasbourg court directly. It was not until 1966 that the UK accepted theses optional clauses although still the ECR was not incorporated into UK law. Consequently, convention rights could not be enforced in UK courts. Complainants could petition Strasbourg only after exhausting the judicial procedures of the UK court system. Eventually after much debate, not least from the judiciary, the Human Rights Act 1998 was passed which incorporated the ECHR into UK law.

The main provisions of the HRA 1998 is that it is unlawful for a public authority to act incompatibly with the Convention rights and in doing so allows for a case to be brought in a UK court or tribunal against the authority. Like the ECA 1972, the HRA 1998 is not entrenched and is subject to possible express repeal. However, the method of incorporation of the HRA 1998 is such that it does not appear to directly challenge Dicey’s concept of Parliamentary sovereignty in the same way as the ECA 1972.

The main provisions that preserve sovereignty are sections 3 and 4. S3 allows for primary legislation to be read in a way that is compatible with the convention rights ‘So far as is possible…’, whilst s3(2) (b) ‘does not affect the validity…of incompatible primary legislation’. This allows the courts when faced with incompatible legislation to make a ‘declaration of incompatibility’ under the terms of s4.

Such an example is A (FC) v Secretary of State for the Home Department [2005] 2 AC 68. Here the House of Lords found that the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the ECHR in relation to detention of foreign detainees. It also quashed the derogation order made by virtue of article 15 of the HRA 1998 in respect of article 5 of the ECHR. The noticeable difference here is that the courts could not suspend the incompatible legislation.

In terms of judicial interpretation, when courts have been faced with incompatibility between the ECHR and primary legislation, rather than revert to article 4 (declaration of incompatibility) they have preferred to employ article 3 to interpret legislation so it gives effect to convention rights. In Mendoza v Ghaidan [2002] EWCA Civ 1533 the court interpreted the Rent Act 1977 so it complied favourably with article 14 of the ECHR.

Dicey’s pure and absolute doctrine of sovereignty has been eroded by the intervention of the UK’s involvement with Europe. In reality parliament stills reign supreme and each parliament is free to make changes or repeal any laws it wishes. In reality, repealing the ECA 1972 would mean withdrawing from the EU something that is constantly open to debate.

Word count 975

Q2(i).

Section 6(1) of the Human Rights Act 1998 (HRA) states that it is unlawful for a public authority to act in way that is incompatible with a Convention right unless a statutory provision prevents it from doing so.

If Angus believes that the Secretary of State for Health (SoSH) who is a public authority within the meaning of the act, has acted contrary to section 6(1) of the HRA, he can bring proceedings against the SoSH under s.7(a) of the HRA or under 7(b) or rely on any Convention rights in any legal proceedings if he is actually charged with an offence under the Compulsory Influenza Vaccination Act 2011. Section 6 would not apply if the SoSH could not have acted differently by introducing the compulsory vaccination scheme taking into account the wording of the primary legislation s6(2).

In proceedings, Angus could refer to Article 8(1) and possibly Art 9 although the former encompasses most what art.9 would do in this case. Article 8 of the Convention is a qualified right with article 8(2) outlining the circumstances when interference with article 8(1) by a public authority is justified. Any interference must be in accordance with the law, necessary in a democratic society and in pursuit of a legitimate aim as defined in the 8(2).

In seeking whether Angus’s article 8 rights have been breached, the court will first determine if the complaint falls within one or more of the four rights in article 8(1) which states:

Everyone has the right to respect for his private and family life, his home and his correspondence.

In Application no. 8239/78, x v Netherlands, 16 DR 184 the commission found that the compulsory taking of blood samples after suspected drink driving raised problems with this article. It is now recognised that compulsory medical treatment intrudes upon private life in article 8(1) and this should be enough for Angus to advance his interest in article 8 that he is looking to protect.

If he is successful in this respect the court will then look to see if the right has actually been interfered with. This would be for Angus to establish and although he has not actually been forced at this point to have the vaccination he has been arrested for failing to submit to the compulsory vaccination which should infer an interference of his right.

The court will next consider if the vaccination scheme has a basis in law. It will look at original Act and consider how it has been transposed by the SoSh in the compulsory vaccination scheme imposed and in particular the wording of the legislation e.g. “resident” to determine if this has a clear meaning to enable persons to decide if the law applies to them. Consideration will be given to the arbitrary nature of the interference or if in this respect it provides some measure of protection.

The next stage would be for the court to determine if the vaccination scheme pursues a legitimate aim. Legitimate aims are listed in article 8(2). In this case the SoSH could argue the legitimate aim was for the protection of health.

Lastly, the court will consider if the interference is necessary in a democratic society and proportionate. The term “necessary” is used in the context of a “pressing social need” Handyside v the United Kingdom (1976) 1 EHRR 737 rather than indispensible or even ordinary, useful or reasonable.

In R v Dudgeon (1982) (1982) 4 EHRR 149 the court described the features of a democratic society:

‘…a restriction on a convention right cannot be regarded as “necessary in a democratic society” – two hallmarks of which are tolerance and broadmindedness- unless, amongst other things, it is proportionate to the legitimate aim pursued…’

Proportionality is seen as a balance between the rights of the individual and the interests of the state. The court will look to see if the state has sufficiently relevant reasons for taking the action, the reasons needing to be stronger the more severe the interference.

Having taken all of the above into account the state is allowed a margin of appreciation. In essence this permits a measure of discretion based on the theory that the state is better placed is some circumstances to decide what course of action is best taking into account such issues as local customs and practises.

If under s3 HRA the court cannot interpret legislation with the convention right it can by s.4 declare the legislation incompatible. Delegated legislation if incompatible with the convention rights and inconsistent with the enabling act may be quashed.

Q2(ii).

The UK has no dedicated law for breach of privacy. The court in Malone v Metropolitan Police Commissioner (1979), a case involving telephone tapping, held that the actions of the police could not be unlawful as there was no right to privacy under UK law. The European Court of Human Rights subsequently found that telephone tapping was unregulated and in breach of Article 8.

Neither could Duncan bring a claim for breach of his convention rights under the ECHR as the newspaper is not a public authority and the HRA does not prima facie provide for direct horizontal effect of convention rights. Duncan would need to bring a claim on the common law tort of breach of confidence. The leaked information was confidential and the newspaper would know this constituted confidential information. In Prince Albert v Strange (1849) I H &TW I 21-22, the court in finding for the Royal family held that the Royal family had the right to judge whether to make etchings made in private, public.

The three elements needed to prove breach of confidence are that the information must necessarily be secret or confidential, that the person given the information would have been under a duty to keep it confidential and the person was in breach of that duty Coco v A N Clark (Engineers) Ltd (1969).

Subsequently in proceedings it would then be unlawful for the court, acting as a public authority, to act in a way that was incompatible with a convention right (6(1)) and thus Duncan could also rely on article 8(1) of the convention ‘Everyone has the right to respect for his private and family life, home and his correspondence’. He would be arguing that by publishing what are essentially private medical documents, this is an unreasonable intrusion into his private life and one that most people would take for granted as personal. He would also resist any claims from the newspaper under article 10(1) that the restrictions under 10(2) include ‘for the protection of the reputation or rights of others’ and ‘for disclosure of information received in confidence’.

The Daily News would argue that under Article 10(1) of the ECHR they have a right to freedom of expression that includes the right ‘…to receive and impart information…without interference by a public authority…’ The fact that Duncan has publicly claimed that he has been vaccinated, the medical information is not so private as to interfere with his article 8 rights. He is also a Minister and has not been truthful regarding his vaccination status, the result of which could lead to his arrest. This in the public interest and out-weighs his article 8 rights.