This is a massive idea! And very topical, with the UK at war with international human rights bodies, and Poland and Germany battling the ECJ. This is how countries can legally escape unpopular treaties and Take Back Control!
No One Puts Priti Patel in the Corner
How the Home Secretary can two-step round the legal elite
Priti Patel keeps running into the same old problem. She wants to pass effective laws covering matters such as immigration and criminal justice. Unfortunately, the national and international courts keep over-riding her.
The great news is there is a straightforward and totally legal way round her predicament:
1) National Legislation and the Sovereignty of Parliament
According to Parliament itself, Parliamentary Sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. [1]
More specifically:
"Dicey's Law of the Constitution made famous the phrase 'the sovereignty of Parliament', but a more exact term for the legal doctrine is 'legislative supremacy', whereby the power of the Queen-in-Parliament to legislate is subject to no legal limitations, and the courts have no power to review the validity of Acts of Parliament. This doctrine is always considered to be subject to the limitation that Parliament is unable to bind its successors (a matter to which I return briefly below).
...So Parliament can legislate however it chooses, for example to stop judicial review by the High Court. And if it did so, the judges would have to observe the terms of such legislation so long as they were unambiguously expressed. As Professor Tomkins says at paragraph 6 of his written evidence:
"What the doctrine establishes is the legal supremacy of statute. It means that there is no source of law higher than—i.e. more authoritative than—an Act of Parliament. Parliament may by statute make or unmake any law, including a law that is violative of international law or that alters a principle of the common law. And the courts are obliged to uphold and enforce it."[2]
This has been the case for centuries - since Charles II – with the courts consistently affirming Parliamentary Sovereignty. For example Lord Bingham:
"It has to my mind convincingly been shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it."[3]
This is common sense. We are a democracy. Parliament is the sole democratically accountable and democratically elected chamber. Thus, for Parliament to be over-ridden by other groups – such as the judiciary - would amount to a judicial coup – i.e. the replacement of democracy with a judicial autocracy without democratic consent. In practice, the system has been wisely designed to ensure this should not happen. Under The Act of Settlement 1701, Parliament can petition the Sovereign for the removal of judges.
So why is there such a mess? The answer is that there are many sources of law. These include
- Common law principles (made by judges),
- International Law, such as UN Conventions and the European Conventional on Human Rights.
- The Human Rights Act (1998), which requires judges to interpret parliamentary legislation in the light of a rather extensive list of human rights.
Unless it is explicitly told not to, the judiciary has a duty to interpret legislation in the light of all these sources. The result is that acts of Parliament can get reinterpreted by the judiciary so as to be completely ineffective, as Priti Patel has found out. For example, an act to deport convicted criminals could be overridden by the Human Rights Act or the ECHR; whereby a judge could interpret the deportation legislation as not applying where it affects a criminals’ human right to be with their family.
However the judiciary can only interpret legislation in this freewheeling way so long as Parliament implicitly allows them to.
Hence, the key to the government overriding the judiciary is to make the legislative effect totally unambiguous. That means making clear when new legislation is NOT to be reinterpreted or given a judicial spin based on, e.g. The Human Rights Act, The ECHR, or a UN Convention.
This can be done simply with one sentence:
The legislation hereinafter overrides all prior national and international law and should not be interpreted in the light of it.
For example, if the Home Secretary really did want to deport all serious criminals who were foreign nationals she could simply pass a Parliamentary act stating:
The Legislation hereinafter overrides all prior national and international law and should not be interpreted in the light of it:
Any criminal convicted of a serious offence, with citizenship or residency rights of another country must be deported immediately after any custodial sentence is served.
The courts would then have no choice but to follow the legislation unambiguously without adding their own interpretation or making exceptions.
Thus, if the Home Secretary or her successors continue to omit this simple phrase, the truth is that they are knowingly passing ineffective legislation for spin rather than substance. This is just dishonest politics.
2) International Law and Self-Determination (Jus Cogens)
Like most legal systems, the international legal system has a hierarchy of laws. For example a treaty would over-ride a mere convention.
Top of the international legal hierarchy are Peremptory Norms; also called Jus Cogens.
So important and so powerful are these that they override all other forms of international law, including treaties. The Vienna Convention on the Law of Treaties, puts it thus:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.[4]
Needless to say, there are not many examples of Jus Cogens. But examples include things like self-defence, genocide and slavery. For example a treaty to sell slaves to another country would be over-ridden by Jus Cogens, rendering it void. Equally, a peace treaty would be overridden between two states if one attacked the other (i.e. self-defence).
One now widely recognised form of Jus Cogens is ‘Self Determination.’ Self determination is the right of a nation’s people, based on respect for the principle of equal rights and fair equality of opportunity, to freely choose their sovereignty and international political status with no interference.[5]
As well as being recognised by the International Court of Justice (see e.g. The East Timor Case [1995]), self-determination has been repeatedly recognised as Jus Cogens by the UN:
In present-day legal theory the idea that self-determination is a case of jus cogens is widely supported, whether because it is held that the character of jus cogens is an attribute of the principle of self-determination of peoples or because it is considered that this right, being a condition or prerequisite for the exercise and effective realization of human rights, possesses that character as a consequence thereof. [6]
In other words, Self Determination is now widely recognised Jus Cogens, and Jus Cogens trumps international treaties.
That means a countries’ people (via a referendum or other form of democratic expression) can override international treaties that bind them.
This means the UK government can exit treaties (or make extensive derogations) that have become problematic, by demonstrating that the majority of voters no longer wish to be bound. This could take the form of a referendum or some other democratic means – perhaps a large scale, well-debated poll would do.
That means we can get round contentious treaties like the ECHR or The UN Convention on the status of Refugees.
A simple way might be a poll or referendum demonstrating the desire of a majority of voters to hand back over-riding authority to Parliament on all Home Affairs Matters: including protests, criminal justice, policing and immigration. Thus giving Parliament the right to automatically over-ride or derogate from international treaties on these matters whenever they wish. Further, courts would no longer be able to reinterpret primary legislation in the light of international treaties.
This is the natural and necessary extension to Brexit – i.e. Brexit II - fulfilling the popular desire to Take Back Control. The Peremptory norm of Self-determination allows us to legally do exactly that.
[1] Parliament's authority - UK Parliament [2] House of Commons - The EU Bill and Parliamentary Sovereignty - European Scrutiny Committee [3] The Rule of Law, p 167. [4] 53 - United Nations Convention on the Law of Treaties, Signed at Vienna 23 May 1969, Entry into Force: 27 January 1980 (uio.no) [5] Self-determination - Wikipedia [6] Right of peoples to self-determination - Special Rapporteur study (excerpts) - Question of Palestine (un.org)
