Questions

1. What is meant by ‘constitutional rights and values’?
2. Summarise the key points made by Lord Hoffmann in the Simms case.
3. What is common law constitutionalism?
4. What is the principle of legality? Why is it important?
5. Summarise the different approaches in the judgments in the Evans case.
6. What issues can arise where judges give greater weight to the rule of law and constitutional principles when interpreting statutes?
7. What is bi-polar sovereignty?

Answers

1. ‘Constitutional rights and values’ are fundamental rights which exist within the common law. They are the rights and values protected by the rule of law that have evolved as rules of ‘fair play’ and justice e.g. legality, freedom of expression, accountable government.
2. Parliament is sovereign and can make laws which override fundamental rights, but it must do so in clear language, not in general or ambiguous words. While Parliament can legally pass such legislation, there may be a political price to pay. The courts will interpret generalised or ambiguous words in a statute in a way that defends fundamental rights.
3. The idea of a constitution based on unassailable common law principles.
4. It is an important principle of statutory construction that where a statute overrides common law rights and principles, it will be interpreted by the courts in a limited way unless the words are very clear. This protects common law rights.
5. Lord Neuberger, Lord Kerr, and Lord Reed gave greater weight to the rule of law and applied a weak view of parliamentary sovereignty, interpreting the statute very restrictively. Lord Mance and Lady Hale concluded that section 53 had a wider meaning but the Attorney General had not shown reasonable grounds for disagreeing with the Upper Tribunal. Lord Hughes stated that parliament had given an override power to the executive where there were reasonable grounds for disagreeing with the Information Commissioner or a court, and the Attorney General had shown reasonable grounds for deciding that non-disclosure was in the public interest. Lord Hughes thought that the rule of law was important, but it required the courts to give effect to parliament’s intention. Lord Wilson upheld a strong view of parliamentary sovereignty and criticised the majority for rewriting section 53.
6. It raises the risk of stepping into Parliament’s shoes and upsetting the constitutional balance between their respective powers. It highlights the rule of recognition: judicial obedience to parliamentary supremacy.
7. The idea that sovereignty is shared between Parliament and the judiciary where Parliament has legislative sovereignty and the courts have enforcement sovereignty based on their function of interpreting statutes.