Does parliamentary sovereignty still reign supreme?

If parliament is sovereign, why can the UK supreme court ignore the European Convention on Human Rights?
Supreme Court of UK
The UK's supreme court has improved access to justice but its constitutional position is still unclear Photograph: Martin Argles

As the UK Supreme Court Blog points out, our highest court of appeal has updated the "frequently asked questions section" of its website.

Of particular interest are the answers to two questions. The first is probably the most important question the public ever asks about the court, namely whether, once a case has wound its way through the expensive and long-winded English court system, the final decision of the court can overrule the UK parliament. Appropriately, the question is the first on the list. The answer is no:

No it cannot. Unlike some supreme courts in other parts of the world, the UK supreme court does not have the power to 'strike down' legislation passed by the UK parliament. It is not the court's role to formulate public policy, but to interpret law and develop it where necessary, through well-established processes and methods of reasoning.

So far, so straightforward: any law student could tell you that the UK parliament is sovereign, and this means that, unlike in the United States, no court, including the supreme court, can strike down legislation passed by Parliament.

That being said, what exactly amounts to "interpreting" law is up for debate. The Human Rights Act empowers courts to "read" legislation in such a way as to give effect to the European Convention on Human Rights, and this can, confusingly, lead effectively to provisions being rewritten by courts (see recent post on fathers rights in child hearings). A court can only do so, however, if its interpretation goes with the grain of the legislation. In other words, it cannot make up completely new legislation.

But the FAQs continues to another paragraph. As in many legal judgments, a clear "no" is followed by a "however":

However, the supreme court must give effect to directly applicable European Union law, and interpret domestic law so far as possible consistently with European Union law. It must also give effect to the rights contained in the European Convention on Human Rights.

This is a confusing qualification. It is not really an answer to the original question at all, that is whether the supreme court can overrule the UK parliament. The correct answer to that question is "no". The second paragraph in fact highlights, without making the position any clearer, that odd constitutional position of the court when it is faced with European law, including the European Convention on Human Rights.

One of the slightly bizarre features of our legal system is that we have a supreme court, populated by our most senior and respected judges, which can no more tell our parliament what to do than it can decide the tactics for the England football team.

However, by virtue of article 46 of the European Convention on Human Rights, the government must "abide by", that is, it must follow, final decisions of the European Court of Human Rights, a court based in Strasbourg of which hardly a lawyer in England could name a single judge.

Hence the recent political clashes over the voting rights of prisoners, imposed on the UK by the European court, leading to an unsatisfactory solution which will only cause more trouble for the UK government in the near future. It appears that no politician thinks the Strasbourg decision is worth fighting for.

It is bad enough when politicians and newspapers attack "unelected" UK judges, as Michael Howard has just done, as if judges had somehow hijacked the legal system and could now overrule elected politicians. The simple point is that they cannot, and the highest legal authorities are still the elected MPs (who should, as they are in the US, be referred to as "lawmakers") who can be petitioned by disgruntled constituents in the normal way.

Moreover, any power that judges have, such as the power to prevent criminals being sent back to their home countries if to do so would breach their human rights, is directly conferred by decisions of parliament and can straightforwardly (well, fairly straightforwardly) be taken away.

But it is more difficult to explain why the actions of UK judges are limited by a constitutional compromise developed over centuries, while European judges have been given enormous power almost via the back door.

This is even more problematic given that some of the UK's most senior judges have said that the Strasbourg court is wrong to aggrandise its own jurisdiction, and should restrain itself from imposing its will on states. If even judges criticise the court's decisions, it is difficult to convince politicians that they should be followed.

The situation becomes more bizarre still, as the UK supreme court (along with all other courts) need only "take into account" judgments of the Strasbourg court. So the supreme court, which is subordinate to parliament in every other way, can do what parliament by its own choice cannot: namely, ignore decisions of the European Court of Human Rights.

A second answer in the FAQ which is of interest for access to justice fans is the question of why court hearings, which are filmed at great expense and televised to practically nobody, are not live streamed on the court's website. I asked this question in a recent blog post. The answer is that it would cost too much:

We do not have the capacity to show our cases live on the website. Our policy is that we only make our recordings available to mainstream broadcasters and educational establishments, because all our footage is recorded digitally in a broadcast-quality format. It is extremely resource-intensive for us to convert our footage to domestic level DVDs or other output formats. Administering and fulfilling such requests is not possible within the court's current resources

It would be useful to know how much it would cost to convert all of the footage automatically. It does sound like a task which could be automated, but who knows. Meanwhile, it is a great shame that the footage, which is paid for with public money, is not available to the public in any real sense.

The UK supreme court has done much since it was set up last year to increase access to justice. Its website, and particularly the invaluable press summaries of judgments, is a supreme improvement over those of the rest of the UK legal system and its example should be followed by other courts.

Its FAQ could perhaps be tweaked in order to make it clearer the for the general public. But it may be that some answers are simply too confusing to be wrestled into a FAQ, and the court can hardly be blamed for our muddled constitutional system.

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of the UK Human Rights Blog

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