Attorney General speech to BPP Law School: Parliament and the judiciary
30 Tuesday Oct 2012
The Attorney General, Dominic Grieve QC MP, gave a speech last week to BPP Law School, where he spoke of the sometimes conflicting interests of being a member of the House of Commons and the specific powers of his office – for example intervening in legal proceedings in the public interest, and bringing contempt of court actions.
In analysing parliamentary sovereignty, Grieve stated that in his view the popular media interpretation that the courts and Parliament are pitted against each other is wrong; in reality courts interpret and apply the laws Parliament makes “faithfully and dispassionately”. He quoted Lord Steyn in Jackson v Attorney General  UKHL 56:
“. . . the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.
Grieve described this as a hypothetical “doomsday scenario”, and stated that as long as the House of Commons remains a democratically elected assembly representative of the electorate it serves, the courts have a duty to apply its legislation.
The sovereignty of the UK Parliament was compared to that of the Scottish Parliament, and Lord Hope in AXA v Lord Advocate  UKSC 46 was quoted to illustrate the point:
“[The Scottish Parliament] does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson is the bedrock of the British constitution. 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.”
The effect of EU law on sovereignty was also analysed, specifically how the functioning of the European Communities Act 1972 entails a refinement of parliamentary sovereignty by technically fettering future parliaments – subsequent legislation that conflicts the Act does not impliedly repeal it.
Grieve went on to describe the interaction between the courts and Parliament in respect of the Human Rights Act 1998 – where he revealed that he is “broadly comfortable” with the interpretation of the ECHR into domestic law – and in terms of parliamentary privilege. Here he argued that if breaches of the sub judice rule became more commonplace he would advocate greater regulation of what members can say during parliamentary proceedings, but as a matter for Parliament (and not the courts) to decide.
The full text transcript of his speech is available here.