” BPP welcome the Attorney General, Rt Hon Dominic Grieve QC MP: The relationship between Parliament and the Judiciary ” , Thursday 25th October 2012, 6 pm.

Dominic Grieve QC MP first began by explaining that “this topic was selected some time ago”, to some amusement for the audience who knew it had been a controversial week for the Government in its support for not giving prisoners the vote (as per Prime Minister’s Question Time yesterday).

Dicey gave the original definition about parliamentary sovereignty and the law of the land, and commented on its illusive appearance:

“The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament thus defined [i.e., as the ‘King in Parliament’] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to overrideor set aside the legislation of Parliament.”

Some have argued that the sovereignty of parliament has been eroded, and this is not an issue which parliament can be ignored. It would appear now that deference to the executive is actively now questioned.

The rôle of Attorney General places him at the heart of this debate. According to Grieve, the three main roles, the Chief Legal Advisor to the Crown, governing CPS, SFO and CPS inspectorate, and guardian of certain public law functions, give him insight into the relationship between parliament and the public. He is a member of Parliament, and “very proud to be a parliamentarian”. Grieve emphasises confidently that, “I believe in the parliamentary process … for scrutinising Government”. He also advises with the Solicitor General on the legislative process, giving each Bill due scrutiny. They together have the ability to block a Bill if there are concerns, but the A-G supports parliament wherever possible:  he feels that his duty is advisory, similar to other lawyers, “have you thought about doing it this way?” in keeping with other lawyers.

Furthermore, the A-G’s role is to protect the rule of law. Lord Mayhew of Twysden once opined that the A-G’s duty is that the Queen’s Ministers: “The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principle requirement of which is that the Government itself acts lawfully”. Some of the A-G’s powers protect the judicial process, and strengthening the rule of law. He has the power to intervene in complex legal proceedings, such as the law on assisted dying, as in the Nickinson Case. He will also personally or appoint advocates to assist the courts. He also has a duty to bring contempt of court proceedings, where an individual or organisation is impeding justice, and to protect such court proceedings from interference.

There are three broad areas. Firstly, the doctrine of parliamentary sovereignty. Then, the European Convention of Human Rights. And thirdly the nature and extent of parliamentary privilege.

Firstly, Dicey considered the legal supremacy of parliamentary as a founding principle. Before the Glorious Revolution of 1688 and the Bill of Rights in 1689, LJ Cook considered whether Royal Authority is circumscribed, citing the case of Dr Bonham. Those ideas appear to have disappeared in the 50 years following the pronouncement. The image can conjure up images of unconstrained power, which may be “wholly tyrannical” or “absurd”. The people may not like this, let alone the Courts. This is a well-established theoretical position, Grieve argues. The courts might enforce legal limits on sovereignty. The process of interpretation might limit the sovereignty of parliamentary: Grieve deeply holds the view that the law is interpreted faithfully and dispassionately. Only extraneous material can be used if the law is not clear, but such rules of interpretations apply to private contracts as well as statutes. These rules of interpretation “are founded on norms” and “act in the interests of justice”. Some interpretation is of course needed. Views are occasionally aired where the Courts could produce fundamental principles, but Parliament can express its views, e.g. through AG v Jackson [2005]. England has a long history of the legislature and judiciary co-existing peacefully; otherwise it would mean that the constitution is ‘completely broken’.

If pushed, Grieve states his view that the Courts have a duty to apply Parliament’s legislation, “though judges have every right to resign”. Axa General Insurance Ltd v The Lord Advocate for Scotland considered the development of pleural plaques, as an “actionable personal injury”. Lord Hope referred to any limits of the sovereignty of parliament. This judgment perhaps raises important issues on judicial review, but Grieve disagrees. Lord Hope’s judgment as per para 46,

“The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament … Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes.”

Grieve believes that this provides an important difference with the UK parliament.

The effect of the 1972 Act on Europe is another part to be considered; the audience will be familiar with Factortame. The European Communities Act cannot be impliedly repealed by any subsequent Acts, and the sovereignty of parliament is not curtailed. What Parliament can do it can undo (as in the “Metric Martyrs” case, or Thoburn v Sunderland City Council [2002]. LJ Laws famously provided at para 51: “But the reason is, of course, that Parliament cannot bind its successors, and that is a requirement of legislative sovereignty”, thus consigning any court of justice to touch or qualify the provisions of Parliament’s legislative supremacy.

According to Grieve, the constitutional position is still not drifting away from the ‘Metric Martyrs’ by placing it on a statutory footing in 2011. There are some interesting issues however arising from European Law, i.e. the European Commission and ECJ judgements, and application by our courts. “None of this alters that this system has been willed on us by ourselves”, according to Grieve.

Grieve was ‘broadly comfortable by the Human Rights Act’, avoids cases going to Strasbourg, affording an opportunity to mould jurisprudence according to European Law, and “wise to follow in our forefathers to protect liberties”. There are many examples of the Human Rights Act; few can disagree with R v East Sussex County Council (Appellants) Ex Parte Reprotech (Pebsham) Ltd. (Respondents) and One Other Action [2002], reinforcing that interests of disabled citizens are properly taken into account for local authorities. Lord Jonathan Sumption QC in his impressive F.A. Mann Lecture described the way in which the Human Rights Act provided the following:

“The incorporation of the Human Rights Convention into English law has significantly shifted the boundaries between political and legal decision-making in areas some of which raise major political issues, such as immigration, penal policy, security and policing, privacy and freedom of expression. It has also extended the scope of judicial review from ministerial and administrative decisions to primary legislation. Few Convention rights are absolute. Most of them are qualified in the Convention by reservations and exceptions on specified policy grounds, so far as these are held to be “necessary in a democratic society” or some similar phrase. Litigation founded on these rights almost always turns ultimately on the question what inroads into them are justified in the public interest. This involves a difficult balance between competing public interests, which is an inherently political exercise. By giving legal effect to the Convention, however, we have transferred it out of the political arena altogether, and into the domain of judicial decision-making where public accountability has no place.”

Sumption had explained that when judges make decisions involving qualified Convention rights, the determinations almost always involve striking a difficult balance between competing public interests, which is an inherently political exercise. Grieve’s general approach may be summarised perhaps: judicial review may see discussion of macropolicy, and in area where there is dispute, Parliament can opt for a number of options. However, the Human Rights Act does not on its face recognise the same limitations.

In Hirst v AG, the Court found that it was for Parliament to determine the appropriate policy; the matter then went to the Strasbourg Court – Grieve however feels that this may have been a “mistaken misinterpretation of the law”, The Commons voted by an overwhelming 234 to 22 last year to back the ban on prisoner votes. Ministers are preparing to launch a draft Bill to comply with the so-called Scopola ruling by the European Court of Human Rights (ECHR). Grieve consequently thinks of his rôle “as an intervener”. The Government is currently considering how to address the issue, and has previously said:

“This is not a matter where there’s not parliamentary sovereignty. There clearly is. Parliament gives and Parliament can take away. Governments can leave the Council of Europe if they choose to do so, but all I’m saying is it is quite clear, and I think accepted by the Government, it is accepted, that in so far as the Scopola judgment is concerned, it imposes an international legal obligation on us.”

Observing its judgments is an international obligation arising by treaty, but it is possible for parliament to take no option” leading to possible damages asks Grieve? Possibly UK can withdraw from the European Convention? Grieve disagrees strongly with this, “as this would lead to enormous reputational damage”. Grieve affirms that Europe should take account decisions of national parliaments. Grieve highlights that subsidiarity, the national authority of legislative states having the primary responsibility of protecting human rights, holds the key to all this. Subsidiarity recognises the “competing interests”.

“National communities are diverse, even within a region such as Europe with a strong common identity. Their collective values are the product of their particular culture and history. Rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community.” (according to Sumption in the FA Mann lecture 2011)

As a result of the Brighton Declaration, Grieve says, “one can hope for a shift in approach”. The Human Rights Act is not synonymous with the European Convention, “nor is it a sacred tablet of stone”, just a method of incorporation of the Convention into law. The Government considered an approach of enshrining the Convention through the Bill of Rights, “without meaning of eroding the law”. However, human rights cases are where there is a balance to be struck in competing rights, there may be more than one answer.

The way that parliament makes and polices its laws is subject to parliamentary privilege. Parliament would not be truly sovereign, if the Courts were able to exercise oversight. Perhaps most topical issue at the moment is freedom of speech, Article 9 Bill of Rights 1689: “privilege remains of paramount function, so that anyone can speak out”. It is often interpreted as a subjudiciary rule, reflecting comity between parliament and the courts. Most parliamentarians are careful to observe this convention. Some information under parliamentary privilege have been disclosed even subject to anonymous injunctions: Lord Judge has provided, “There has never been any question, in any of these orders, not in any single one of them, of the court challenging the sovereignty of parliament.”

However, according to Grieve, “It ill serves parliamentary process if court orders are flouted, and therefore a Member of Parliament must ensure that this threshold has been crossed”; any reference to matters which are subjudiciary are such that they are “deserved”. Grieve would not shy away from regulating on it, if matters were not “rare”.

To operate properly, Parliament has potential punitive powers not susceptible to judicial scrutiny. Their very archaic powers may require modernisation, but are subject to Articles 5 and 6. Limits to the legislature are part of our law, and may be subject to the Courts; e.g. MPs not being put on trial for fraudulent expenses. Grieve warns that, “There is no conflict in the sovereignty of the parliament and the rule-of-law, but that the two are mutually reinforcing, as Dicey provided”. Grieve frankly concluded by saying, “It really only is in a system of government where rule-of-law is respected .. [there is legitimacy].” Grieve therefore argues that cumulatively through its decisions the law is in an excellent position to provide legitimacy to the legislature.

Dominic Grieve QC MP was later asked by Joshua Rozenberg about the apparent conflict between parliamentary sovereignty and the European Court of Human Rights. I apologise for the orientation of this video which I took on my ipad3, but it is accessible here.