Pham v Secretary of State for the Home Department PDF

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Pham v Secretary of State for the Home Department...

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Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591 The case concerned the withdrawal of UK citizenship of a suspected terrorist, and whether the withdrawal of EU citizenship which this would necessarily effect was subject to challenge on (potentially more demanding) EU law grounds of review. Although the point was not definitively decided (the case being remitted for reconsideration by the court below, which had not considered EU law arguments), suggestions in CJEU case law that this might be possible were received with scepticism by the justices. Lord Mance endorsed the sovereignty of Parliament as the fundamental principle of the UK constitution, before considering whether there could be domestically enforceable limits on the power of the CJEU to determine the requirements of EU law: [80] For a domestic court, the starting point is, in any event, to identify the ultimate legislative authority in its jurisdiction according to the relevant rule of recognition. The search is simple in a country like the United Kingdom with an explicitly dualist approach to obligations undertaken at a supranational level. European law is certainly special and represents a remarkable development in the world’s legal history. But, unless and until the rule of recognition by which we shape our decisions is altered, we must view the United Kingdom as independent, Parliament as sovereign and European law as part of domestic law because Parliament has so willed. The question how far Parliament has so willed is thus determined by construing the 1972 Act…. [90] A domestic court faces a particular dilemma if, in the face of the clear language of a treaty and of associated declarations and decisions, such as those mentioned in paras 86– 89, the Court of Justice reaches a decision which oversteps jurisdictional limits which member states have clearly set at the European Treaty level and which are reflected domestically in their constitutional arrangements. But, unless the Court of Justice has had conferred on it under domestic law unlimited as well as unappealable power to determine and expand the scope of European law, irrespective of what the member states clearly agreed, a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements, including in the case of the 1972 Act what jurisdictional limits exist under the European Treaties and on the competence conferred on European institutions including the Court of Justice. [91] It will be a very rare case indeed where any problem arises in this connection, and the recipe for avoiding any problem is that all concerned should act with mutual respect and with caution in areas where member states’ constitutional identity is or may be engaged— particularly so where, as in the present context, great care has been taken to emphasise this by declarations accompanying the relevant treaty commitments. That reflects the spirit of co-operation of which both the Bundesverfassungsgericht [the German Constitutional Court] and this court have previously spoken. NOTES 1.For similar critical discussion see Lord Carnwath at [54]–[55], [58]. 2.UK withdrawal from the EU may make irrelevant the substantive point as to the implied constitutional limitations (if any) applicable to EU law by virtue of the European Communities Act 1972. Yet this issue has provided a vehicle for the courts to consider more explicitly the nature of the UK’s constitutional framework, and the legal force of domestic constitutional sources within it. Whether this judicial framework functions to preserve

parliamentary sovereignty, or could develop to impose constitutional limits on the legislative power of Parliament, remains an important question of domestic constitutional law. ■ QUESTIONS 1.Do you see evidence that Parliament, when enacting the European Communities Act 1972, intended to make the domestic supremacy afforded to EU law subject to constitutional limits? Consider in particular s. 2(4), in this chapter at p. 72. 2.What is the authority for judicial attempts to establish a more explicit constitutional framework for the UK? Are attempts to identify constitutional statutes, instruments, and principles simply the recognition of what exists as a matter of practice, or are the courts crafting new constitutional ideas? Is such a process of constitutional change legitimate? 3.Are the constitutional concepts discussed in Thoburn, HS2, and Pham satisfactory? Do they capture the key aspects of the UK constitution when defining what is ‘constitutional’? 4.If there are fundamental principles of the UK constitution, what is justification for Parliament possessing the power to violate them? Could similar considerations apply to constitutional rights? This issue is considered in the next section. B: Human rights The Human Rights Act 1998 seeks to reconcile protecting human rights with preserving legislative sovereignty by requiring courts to interpret legislation so far as it is possible to do so in conformity with convention rights (see Chapter 9, Section 3 at pp. 444–5 and the dicta on what this requires the judges to do at pp. 446–56) or to make a declaration of incompatibility if such an interpretation cannot be achieved (see Chapter 9, Section 3 at pp. 456–63). Issuing such a declaration puts the ball in Parliament’s court; it can use a fast-track procedure to legislate so as to bring the law into conformity with Convention rights (see Chapter 9, Section 3 at p. 460). Tomkins says, in Public Law (2003) p. 122: … if Parliament decides not to amend or repeal a provision that has been declared by a court to be incompatible with a Convention right, so be it. Parliament continues to have the supreme legislative authority to legislate in contravention of convention rights if it so wishes, and no domestic court or tribunal may overturn or set aside such legislation notwithstanding the incomparability. Whereas Ewing has remarked at (1999) 62 Modern Law Review 79, 92: As a matter of constitutional legality, Parliament may well be sovereign, but as a matter of constitutional practice it has transferred significant power to the judiciary. For Kavanagh, in Constitutional Review under the UK Human Rights Act (2009), pp. 325, 336, parliamentary sovereignty has been ‘compromised’: the HRA only preserves the doctrine of parliamentary sovereignty in formal terms, but limits the legislative power of Parliament in substance. So far declarations of incompatibility have not been ignored, with the exception of that made in relation to the statutory prohibition on voting by convicted prisoners, considered by

the Supreme Court in R (Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] AC 271 (see Chapter 9, Section 3 at p. 463). Some senior judges have characterized the powers of the courts under the Human Rights Act 1998 in strikingly bold terms. In his FA Mann lecture ‘ “Judge not, that ye be not judged”: Judging Judicial Decision-Making’ in January 2015, Lord Neuberger, the President of the Supreme Court, suggested: [47] The revolutionary effect of the 1998 Act is, in summary terms, threefold. First, Judges are now called upon more frequently to rule on moral and political issues, given that is what human rights involve. This means that we have to engage on a review of the merits of any decision or action which impinges on an individual’s fundamental rights. Before the 1998 Act, our role in relation to government acts was more circumscribed. Secondly, Judges must perform a quasi-statute-writing function as section 3 of the 1998 Act requires Judges to read and give effect to legislation “[s]o far as it is possible to do so … in a way which is compatible with the Convention rights”. If legislation does not appear to comply, we must, if we can, recast it so that it does comply. Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation cannot be made to comply and, with one exception (prisoners’ votes), it has done so....