#19890 - Dialogic Model Of Parliamentary Sovereignty - Constitutional Law

Dialogic Model of Parliamentary Sovereignty

Courts want to give effect to Parliament’s intentions, but are willing to engage in a dialogue with Parliament to determine what those intentions are. As such, when courts disapply statutes – like the Merchant Shipping Act 1998 – if it is incompatible with EU law, they are assuming Parliament didn’t intend contrary to EU law. They’re saying you screwed up this time, but if you really meant to violate EU law, feel free to pass another statute which explicitly says so. Support for the idea that courts will give effect to legislation incompatible with EU law as long as the legislation makes it clear they want to do so is provided by Thoburn.

Defending Dialogue – Po-Jen Yap

Waldron doesn’t like review where courts can disapply a statue or construe its meaning in ways the statute itself didn’t envisage. Waldron thinks strong form review is politically, and democratically, illegitimate. Disagreements exist in the public on what fundamental values are, but the courts aren’t a place to resolve this. need to respect the principle of majority decision through elected legislature. Fallon counters that it is presumptively worse for legislation to be enacted than not, because enacted legislation might infringe human rights etc, so we need multiple veto points – i.e. legislature and courts. Kavanagh argues popular preference does not transform morally wrong acts, like rape, into morally right ones.

Yap argues s.3 has been used to modify the statute in ways the statute itself didn’t envisage. R v A (No2).

Side note: Kavanagh – Constitutional Review under HRA

In R v A (No2) and Lambert, the judiciary took an ‘extremely vigorous stance’ (Fenwick) on whether s.3 was usable. Lord Steyn in R v A (No2) said in accordance with the will of Parliament as reflected in s.3, it may be necessary to adopt a linguistically strained interpretation. Lord Hope wasn’t too happy with the use of s.3 in that case. He said ‘it is only a rule of interpretation. It does not entitle to judges to act as legislators’. Nicol, Klug, Gearty, Bonner and Fenwick argued the HL effectively rewrote the statute in that case and violated Parliament’s intention. Nicol: ‘the legislative intention was transparently to restrict judicial discretion in respect of evidence of the complaints’ previous sexual life, yet their Lordships’ interpretation reinstated the wide judicial discretion that Parliament thought it had abolished’. Lord Steyn went on a mad one during the case. He said s.3 was ‘more radical in effect’ than normal statutory interpretation, and that s.3 ‘qualifies’ the general principle that the text is the primary source of interpretation. It’s worth noting s.3 says the interpretation only has to be ‘possible’, not reasonable.

Steyn was endorsed in Ghaidan. Lord Irvine says the challenge for the courts is to ‘work out where the correct balance lies between these competing imperatives of activism and restraint’. This suggests there’s nothing really stopping the judges from interpreting the hell of a statute, other than their own restraint. This neatly mirrors political restraint necessitated by the more absolute conceptions of PS.

Gearty: with respect to s.3, judges have sometimes been extremely activist, and other times deferential. This shows their engagement has been ad hoc and unprincipled. Kavanagh disagrees – this doesn’t indicate unprincipled ad hoc. It may just mean there are strong reasons for activism in one case, and strong reasons for deference in another. Degree of activism is contextual.

An example of what is considered an overuse of s.3:

In Re S, Re W the CA read into the Children Act 1989 new powers and procedures by which courts could supervise the implementation of care orders by local authorities to protect children against violation of their Article 8 rights (respect for private life). This was unanimously reversed by HL as an inappropriate use of s.3(1). A fundamental feature of the Children Act was the courts weren’t allowed to intervene in the way local authorities discharged their parental responsibilities in care orders. HL accepted that, following R v A (No2), words could be read into a statute, they opposed the CA because it went against a ‘cardinal principle’ of the legislation. Lord Nicholls said a meaning which departs substantially from a fundamental feature of an Act is likely to have crossed the boundary between interpretation and amendment. Interestingly, he went on to say this is especially true where the departure has practical repercussions which the court is not equipped to evaluate.

What’s a fundamental feature? Nicol thinks Lord Nicholls retreated from R v A in Re S, Re W. Lord Woolf in Poplar Housing said ‘if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved’. In Shayler, it was held if s.3 use would make the statute ‘unintelligible or unworkable’, Parliament is to amend the statute. In Roth, Brown LJ said s.3(1) couldn’t be used to ‘turn the scheme inside out’. In Bellinger v Bellinger, HL declined to read transsexual female into ‘male’ and ‘female’ as per the statute. Lord Nicholls said there needs to be a clear, coherent policy. Although a s.3 use might have been linguistically and legally possible, it would be constitutionally inappropriate because it was a policy matter. In Anderson, Lord Bingham made his famous ‘not be judicial interpretation but judicial vandalism’ comment. Lord Steyn struck a similar note: ‘it would not be interpretation but interpolation inconsistent with the plain legislative intent’. The judges reference adherence to Parliamentary intent, but arguable R v A and Lambert gave the statute a meaning different to what Parliament intended. In Lambert, Lord Hope clearly said despite interpretation y was ‘what Parliament chose to do’, he had ‘no doubt’ he would read it as interpretation y.

Lord Steyn in Anderson said s.3(1) ‘is not available where the suggested interpretation is contrary to express statutory words or by implication necessarily contradicted by the statute’. This is in tension with what Steyn said in R v A: a declaration ‘must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise’.

Kavanagh thinks there’s no point trying to identify a single ‘test’ with respect to choosing s.3 or s.4 because it involves a balancing exercise between two sets of competing values. The extent to which those values can be pursued is highly context-dependent.

Back to Po Jen Yap: Defending Dialogue

Kyritsis has argued legislator’s conception of rights may not be reflective of the people they represent. He thinks legislators are trustees rather than proxies of the people; the legislator is ‘under no institutional duty’ to keep equal distances from every reasonable view held by his constituents. The only way, thus, of ensuring the legislature doesn’t misuse its liberty is a safeguard which must be independent. However, James Allan is correct to argue that pointing to the flaws in the legislature’s democratic credentials does nothing for the judiciary.

Larry Alexander and Fredrick Schauer have embraced ‘judicial primacy without qualification’ on the basis that an authoritative settlement of the law is a constitutional value. Jowell thinks the constitution’s ultimate controlling factor is RL. Yap takes issue with this because the judges don’t uphold RL in abstract, but have to apply it to facts. What exactly should the judges enforce here? Rights? Would they enforce free speech against legislative attempts to ban discriminatory language against minorities? Yap thinks RL is vague and contestable. If the judicial supremacists are right that the courts stand at the apex of the constitution, they must demonstrate how judges are better at resolving constitutional disputes with regard to the legislature. Laws and Allan argue judges are immune from politics and are duty-bound to reach reasoned judgements, so they’re well placed to reach morally correct results.

Dialogic JR is premised on the notion that courts can and should engage in continued conversation with political institutions on the demands of a constitutional society (Bickel). The institutional advantages of the courts are apparent when protecting unpopular societal groups (Belmarsh). Chemerinsky follows this up with popular initiatives may not seriously represent under-valued minorities, and it is the same for legislative majorities. He argues that JR has made the greatest difference for these groups. Tushnet has observed that dialogic review capitalises on the courts’ institutional advantage by allowing courts to bring constitutional values into focus in the legislative forum. With issues brought to the legislature’s attention, we can then advance the democratic self-governance by having Parli make the final decision, he argues.

Tremblay argued dialogic model lacks normative content. Dialogic is premised on the fact that JR is legitimate because it does not prevent democratic institutions from completing their prior objectives, not because of any positive claim. Ewing takes this further: if JR is to be justified, it has to be for reasons of principle intrinsic to the process itself, not because the process is inoffensive and...