To answer public concerns on the availability of jury trials, Parliament enacted the Guarantee of Juries Act 2016 (‘the GJA’). It provided that anyone charged with an offense punishable by at least six months’ imprisonment was entitled to a trial by jury. In 2019, the Allocation of Trial Act (‘the ATA’) was enacted that abolished the right to a jury trial for a wide range of offenses. It was adopted by small majorities in both Houses of Parliament in violation of the GJA, which required a two-thirds majority in both Houses to be repealed. Shortly after the ATA came into force, Nigel was charged with fraud, tried before a judge, and sentenced to two years’ imprisonment. According to the GLA, Nigel should have been afforded a trial by jury because fraud is an offense punishable by imprisonment. However, the ATA has abolished the right to a jury for such offenses. The principles of parliamentary sovereignty and the rule of law can be applied to Nigel’s case, revealing major controversies in the UK’s legal system.
The first constitutional principle that applies in this case is parliamentary sovereignty. It is considered to be the fundamental basis of the UK constitution that “makes Parliament the supreme legal authority in the UK which can create or end any law.”1 It implies that the courts cannot overrule its legislation, and no Parliament can pass laws that future Parliaments cannot change.2 When applied to the jury acts under consideration, it means that Parliament has acted in accordance with this principle when changing the law that was adopted by the previous Parliament.
The second principle that applies in this case is the rule of law, which is a fundamental idea behind many modern legal systems, including the UK Constitution. The 2007 report by the Constitution Committee identifies a number of different meanings behind this principle. The first is that “the government must be able to point to some basis for its action that is regarded as valid by the relevant legal system.”3 Afterwards, the relevant measure would have to be made by the properly authorized person or institution in the properly authorized manner.4 The second meaning behind the rule of law is that laws should enable individuals to be able to plan their lives. The third meaning is that the rule of law demands that governmental actions conform to the precepts of good administration, being an essential facet of accountable government in a democratic society.5 Overall, the rule of law is a framework that ensures that the government does not do anything unless it can point to the law which gives it the power to do so.
With regard to the GJA and the ATA, this principle was violated. The ATA was passed in circumvention of the GJA, which stipulated that it could only be repealed by a two-thirds majority in both Houses of Parliament. It means that the act was not adopted “in the properly authorized manner,” as is required by the rule of law.6 Furthermore, the demand that governmental actions should be expressive of how the state ought to behave towards individuals in society was also not sustained.
From the above-stated facts, the following constitutional issue arises. The adoption of the act that is considered valid based on the principle of parliamentary sovereignty can be regarded as a violation of the rule of law. Since parliamentary sovereignty is the most central element of the UK Constitution, it enables Parliament to pass bills that contradict the principles of democracy. Regardless of what provisions are stipulated in the act, they can be ignored by the next Parliament which decides to make changes to the law.
In Nigel’s case, the validity of the ATA can be challenged based on the rule of law. He can appeal to the Supreme Court, which hears appeals on arguable points of law of public importance. The Supreme Court is limited in its power of judicial review due to the doctrine of parliamentary sovereignty, but it can overturn secondary legislation if it is found to be ultra vires.7 It can hear Nigel’s case and decide that the ATA was not adopted properly, but it cannot overrule it in favor of the GJA. For Nigel, the reasonability for appealing to the Supreme Court depends on the extent of his discontent with the court decision. Since he was sentenced to two-year imprisonment on a charge which carries a maximum sentence of ten years, it seems to be advisable for him to accept the decision. If he is discontent, he can appeal to the Supreme Court in the hope of creating a precedent.
Overall, Nigel’s case reveals a contradiction in the basis of the UK’s law and constitutional principles. The doctrine of parliamentary sovereignty allows Parliament to pass bills that violate the rule of law and democratic principles. Regardless of the stipulations of each particular act, it can be repealed by Parliament without consideration of motives and circumstances. It is a problematic issue that needs to be addressed to prevent undemocratic acts and ensure consistency throughout the legal system.
Bibliography
Constitution Committee, Constitution – Sixth Report (HL 2006-07) app 5.
Courts and Tribunals Judiciary, ‘Judges and Parliament’, Courts and Tribunals Judiciary (n.d.).
UK Parliament, ‘Parliamentary Sovereignty’, Parliamentary Sovereignty (n.d.). Web.
Footnotes
- UK Parliament, ‘Parliamentary Sovereignty’, Parliamentary Sovereignty (n.d.), 1. Web.
- UK Parliament, 1.
- Constitution Committee, Constitution – Sixth Report (HL 2006-07) app 5, 3. Web.
- Constitution Committee, 3.
- Constitution Committee, 3.
- Constitution Committee, 3.
- Courts and Tribunals Judiciary, ‘Judges and Parliament’, Courts and Tribunals Judiciary (n.d.). Web.