In the name of parliamentary sovereignty: conflict between the UK Government and the courts over judicial deference in the case of prisoner voting rights

Abstract

New archival evidence reveals how UK governments, since the 1970s, have been concerned primarily with domestic courts encroaching on executive powers rather than those of the legislature. Alongside the Human Rights Act 1998, a mechanism of judicial ‘deference’ to Parliament evolved to justify courts deferring to an act of Parliament, or to decisions of the legislature, or executive. As this article argues, failure to clarify which of these three is at play has served as a helpful vehicle for Governments to convey the powerful narrative of courts using human rights frameworks to usurp the democratic powers of Parliament as legislature at times of conflict between the courts and the executive. In the prisoner voting debate, actors thus successfully invoked ‘parliamentary sovereignty’ to generate an emotive narrative that the European Court of Human Rights was usurping the powers of ‘Parliament’ when instead the Court, supported by the UK legal community, was challenging the dangerous precedent set by the UK Divisional Court’s deference, in 2001, to the executive. Interview data demonstrate how the 2011 backbench parliamentary debate to flout Strasbourg’s judgments was largely manufactured to curtail the ECHR mechanism which empowers domestic courts to effectively hold the government to account.