The second imbalance in the Human Rights Act is that it only permits the courts to
declare a statute incompatible with Convention rights, but not to disapply or strike
down such legislation. The reason for this is well known as a political compromise
based upon an earlier bill drafted by Lord Lester – a compromise which probably
made the enactment of the Act possible. But now that we have realised that the Act
embodies not a mere set of entitlements but the basis of a new constitutional order,
is it not time for express authority to be conferred on the courts to disapply the
offending legislation? Such a power would both firmly endorse the significance of
the new order and also dispel common confusion on the matter.
The confusion, I’m afraid, exists not only on the part of the public. The confusion was
demonstrated graphically in a fascinating correspondence in the Observer last April
on the question of the Human Rights Act between Henry Porter and the Prime
Minister. The Prime Minister stated in week one of the correspondence that courts
now have the power to ‘strike down’ as he put it, Parliaments’ laws, under the Human
Rights Act. In week two Henry Porter pointed out the error. But in week three the
Prime Minister still insisted that the strike down power existed and Henry Porter was
wrong.
Perhaps, although I doubt it, the Prime Minister was alluding to the fact that the
government routinely do accede to the courts’ declarations of incompatibility. And,
to their credit, they have done so. But the confusion is deeper than that because the
courts can disapply legislation which offends European Union Law. If Parliament
permits the courts to possess the capacity to have the last word over an area
dominated by commerce and the objective of free trade, surely it should be
acknowledged that the courts are even better equipped to adjudicate on the issue of
whether there has been a trespass on the necessary elements of our domestic
democratic order.
These proposals may seem unduly provocative at a time when
some of the media seem to have succeeded in convincing the public that the rule of
law and the maintenance of national security are inherently contradictory goals. This
is of course another myth and indeed a false dichotomy. There is scope in the
Convention to adjust our rights in a case of stress and where necessary in a
democratic society. But an independent arbiter should be in place to ensure that the
rule of law, if it is indeed to bend, does not break, for this would in turn cause the
collapse of a central pillar of our democracy and make a mockery of our claims to liberty. As a matter of principle, Parliament should not be permitted to make that
judgment in its own cause.
Be that as it may, the issue may well be out of Parliament’s hands, because the
courts are beginning to realise that they in any event possess the authority to
disapply legislation. Now this claim was almost unthinkable even at the end of the
twentieth century, when no judge and hardly any academics questioned Dicey’s
sovereignty of Parliament (although Lord Woolf and Lord Justice Laws had,
extrajudicially, reminded us that the sovereignty of Parliament is a judicial construct,
and therefore would be open to revision by the courts in extreme circumstances,
such as if judicial review were to be abolished).
The issue raised itself in a most unlikely case, decided by the House of Lords in late
2005, and brought by Mr. Jackson, the Chair of the Countryside Alliance, to
challenge the Hunting Act which banned the hunting of most wild mammals with
dogs. The case questioned the validity of the Parliament Acts, which were invoked to
ensure the bill’s passage in the absence of the approval of the House of Lords. The
Paliament Acts were upheld, and thus the Hunting Act survives, and the fact that
hunstmen with red jackets still populate the English landscape has to do with the
loopholes in the Act, or its lack of enforcement, rather than its legal validity.

The Jackson case is famous for the fact that at least three of the judges in that case,
albeit obiter, suggested that in certain circumstances judges might have the authority
to disapply legislation, even outside of he Parliament Acts and Human Rights Act. It
is true that the senior Law Lord, Lord Bingham firmly endorsed the sovereignty of
Parliamen. But Lord Steyn said that
‘in exceptional circumstances involving an attempt to abolish judicial review or
the ordinary courts [the courts] may have to consider whether this is a
constitutional fundamental which even a complaisant House of Commons
cannot abolish’.
Lady Hale said:
‘The courts will treat with particular suspicion (and might even reject) any
attempt to subvert the rule of al by removing governmental action affecting
the rights of the individual from all judicial powers’
And Lord Hope, even more fortrightly, said that:

‘It is no longer right to say that [Parliament’s] freedom to legislate admits of no
qualification’, and
‘The rule of law enforced by the courts is the controlling principle upon which
our constitution is based’.
It may be that it will take some time and considerable political courage for the courts
to ever strike down Parliamentary legislation outside of European law (as is
commonplace in other democracies, whose skies do not fall as a result) but the
intellectual route to that position has been sketched, albeit lightly, in Jackson and it is
by no means as revolutionary as it may have appeared even just a few years ago. In
fact, it is based on simple first principles which are these:
First, as Lord Steyn said in Jackson, the sovereignty of Parliament is a construct of
the common law. If that is the case, it can be revised or abolished by the common
law. Or, to put that another way, the common law would have no difficulty in theory
reversing Dicey’s priorities by elevating his second principle, rule of law, to a status
above his first (the sovereignty of Parliament). Lord Hope said that this is already the
case.
Secondly, the sovereignty of Parliament is predicated not upon mere assertion, nor
even upon longstanding practice, but upon principle. The principle is clear:
Parliament prevails because it most perfectly represents the will of the people. If
therefore Parliament were to postpone elections for 5 or 10 years, or create a oneparty state, or prohibit criticism of the government’s record, it forfeits the condition
upon which its sovereignty is based. The legitimacy of Parliament’s claim to absolute
sovereignty collapses because it is seeking to undermine its reprepresentative nature
– to cut off the bough on which Parliamentary sovereignty sits.
But what if Parliament were to abolish judicial review? Or introduce torture for
terrorist suspects? Or indefinite detention without trial in solitary confinement for
foreigners? Here the issue is more complex. It cannot be said that such legislation
questions Parliament’s representative status – the status on which its sovereignty is
predicated. But the legislation would be regarded as undermining those values and
‘fundamentals’ of the new, rights-based democratic order that we now inhabit and
which require respect for human dignity, equality and the rule of law. By disapplying
such laws the courts would be acting as guardians of that new order.