Parliament’s Role and the Modernisation Agenda

Abstract

Acts of Parliament are the highest form of law in the UK, subject only to provisions of European Union law. In the absence of a formal constitutional document setting out limits to the power of Parliament, there can be no provision for a Supreme Court or other external independent body to scrutinise Acts against constitutional or other criteria and to invalidate provisions that do not meet such standards. If an Act were to provide, for instance, for there to be no appeal to the courts against tribunal decisions, even if they were made without jurisdiction or under an error of law (as was originally proposed by the Government in the Asylum and Immigration (Treatment of Claimants etc) Bill 2003/4, clause 10), or for the indefinite detention of foreign suspects without trial (as is provided for in the Anti-Terrorism, Crime and Security Act 2001), the UK courts could not disapply the provision. Under the Human Rights Act the higher courts may declare a provision in primary legislation to be incompatible with rights under the European Convention on Human Rights, but they could not refuse to give it effect. So in the UK the responsibility for scrutiny of legislation lies heavily on Parliament itself.