Of the European Communities Act and Section 3(1)
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View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Northumbria Research Link THE ROLE OF SECTION 2(1) AND (4) OF THE EUROPEAN COMMUNITIES ACT AND SECTION 3(1) OF THE HUMAN RIGHTS ACT IN THE INTERPRETATION AND APPLICATION OF PRIMARY LEGISLATION: IMPACT ON JUDICIAL ATTITUDES TO THE TRADITIONAL CONCEPT OF PARLIAMENTARY SOVEREIGNTY BY ANTHONY EZONFADE OKORODAS A THESIS SUBMITTED TO THE UNIVERSITY OF NORTHUMBRIA AT NEWCASTLE IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY RESEARCH UNDERTAKEN IN THE SCHOOL OF LAW, UNIVERSITY OF NORTHUMBRIA AT NEWCASTLE DECEMBER 2008 i ABSTRACT The main aim of this thesis is to examine, through an analysis of relevant case law, the way in which the courts interpret and apply primary legislation pursuant to the interpretative obligation contained in section 2(1) and (4) of the European Communities Act 1972 and section 3(1) of the Human Rights Act 1998, and to assess current judicial attitudes to the traditional concept of parliamentary sovereignty in the light of the judicial perception of the interpretative obligation in the above-mentioned provisions. As an essential prelude to the examination of the case law on the judicial treatment of the interpretative obligation in the 1972 and 1998 Acts, chapter 2 of the thesis discusses the traditional, Diceyan concept of parliamentary sovereignty. This is considered without the effects of the 1972 and 1998 Acts. This chapter demonstrates that the courts perceived it as their constitutional duty to obey and apply the latest will of Parliament without question. It is observed that no legal grounds could exist for challenging the validity or enforceability of primary legislation. Chapter 3 discusses conventional methods of statutory interpretation. It is observed that conventionally, the principal aim of statutory interpretation is the ascertainment of parliamentary intention in the statute under consideration. Where the intention of Parliament is clear and unambiguous and is not absurd in any way, the courts feel duty-bound to carry out the identified parliamentary intention in line with the rule, demanded by the doctrine of parliamentary sovereignty, that courts obey without question the latest will of Parliament. The rest of the thesis is devoted to an examination of the way in which the courts use their interpretative powers under section 2(1) and (4) of the 1972 Act and section 3(1) of the 1998 Act when interpreting and applying primary legislation coming within the purview of these enactments. It is argued that while the courts appear to continue to acknowledge the sovereignty or supremacy of Parliament, the case law reveals that in appropriate cases, section 2(1) and (4) of the 1972 Act and section 3(1) of the 1998 Act has enabled judges to interpret and apply primary legislation in a way that substantially challenges the traditional, Diceyan concept of parliamentary sovereignty. They feel able to ignore or otherwise modify the legal effects of unambiguous primary legislation in appropriate cases. ii DEDICATION This study is lovingly dedicated to the evergreen memory of the best friend I ever had and would probably ever have, Barrister Seikemefa Ebipulou (previously Seikemefa Seipulou). He knew I was going to undertake this programme. We talked about it and looked forward to it together. Sadly, he was taken away from me before I started. iii ACKNOWLEDGEMENT A Study Fellowship awarded by the Niger Delta University, Nigeria, and fully funded by the Government of Bayelsa State of Nigeria made this research programme possible. Therefore, I owe a debt of gratitude to them both. The Study Fellowship mentioned above was part of a Staff Development Programme initiated by the pioneer Vice Chancellor of Niger Delta University (my employers), Professor John Cecil Buseri. So far, the programme has succeeded in enormously enhancing the human resource capacity of the University. I wish to thank him for his foresight and in particular, for his kind approval of my nomination for the Award. I also wish to thank Professor J. Finine Fekumo, former Dean of the Faculty of Law, Niger Delta University, for graciously nominating me for the Award. I would like to express my appreciation to my learned senior and former Attorney General of Bayelsa State of Nigeria, the Honourable Talford Ongolo, for his invaluable support. My heartfelt thanks also go to Senator Paulker Emmanuel for his constant encouragement. No words can sufficiently express my gratitude to my Principal Supervisor, Greer Hogan, for all she did in support of my research. But for her selfless and relentless supervision and encouragement throughout the programme, this thesis could not have seen the light of day. I am also immensely grateful to my Second Supervisor, Alan Davenport, for his invaluable academic support, incisive criticism of drafts and iv suggestions for improvement. Needless to mention, I am solely responsible for any errors that might be detected in the thesis. My adorable family have endured my long absence during the programme. I thank every one of them. I hope I can make up for lost time. v AUTHOR’S DECLARATION I, ANTHONY EZONFADE OKORODAS, do hereby declare that no part of this thesis has been submitted for any other award. I further declare that this thesis was solely produced by me and the research was not carried out in collaboration with any other person or body of persons. …………………………….. SIGNATURE AND DATE vi TERMINOLOGY ADOPTED IN THE THESIS The statutes primarily dealt with in this thesis are the European Communities Act 1972 and the Human Rights Act 1998. To avoid clumsy repetitions, throughout the thesis, these statutes have simply been referred to as the 1972 Act and the 1998 Act respectively. The term, ―Community law‖ flexibly refers to the body of rules and regulations, including treaty provisions, emanating from the Communities referred to in section 1(1) of the 1972 Act, namely, the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community. However, this study has been concentrated on the law emanating from the European Economic Community (EEC), the predominant Community amongst the three. Thus, except the context indicates otherwise, ―the Community‖ refers to the European Economic Community, and ―Community law‖, ―Community legislation‖ and ―Community right‖ are to be read accordingly. ―EEC Treaty‖ has been used interchangeably with ―Rome Treaty‖ as both refer to the Treaty establishing the EEC signed at Rome on the 25th of March 1957. Except otherwise indicated in the thesis, ―the Convention‖ refers to the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe on 04 November 1950, and incorporated into United Kingdom domestic law by the 1998 Act. ―The Convention rights‖ refer to the rights guaranteed by the Convention. vii ―European Court‖ as used in chapter 4 or in relation to Community law issues in the thesis refers to the European Court of Justice. However, the same when used in chapters 5 and 6 or in relation to Convention right issues in the thesis refers to the European Court of Human Rights. viii TABLE OF CONTENTS Title of Thesis………………………………………………………………………….i Abstract………………………………………………………………………………..ii Dedication…………………………………………………………………………….iii Acknowledgement…………………………………………………………………….iv Author‘s Declaration………………………………………………………………….vi Terminology Adopted in the Thesis………………………………………………….vii Table of Contents……………………………………………………………………..ix CHAPTER 1 – INTRODUCTION……………………………………………….…1 I. Background to the Research………………………………………………………...1 II. Aims of the Research……………………………………………………………...10 III. Scope of the Research……………………………………………………………12 IV. Research Methodology…………………………………………………………..13 A. Selection of Cases…………………………………………………………….13 B. Approach to Case Analysis……………………………………………………16 C. Journal Articles………………………………………………………………..17 D. Research Facilities Utilised…………………………………………………...17 V. Structure of the Thesis…………………………………………………………….18 CHAPTER 2 - OVERVIEW OF THE TRADITIONAL CONCEPT OF PARLIAMENTARY SOVEREIGNTY ………………………………………….21 I. Introduction………………………………………………………………………...21 II. Judicial Attitudes to the Traditional Concept……………………………………..21 III. Conclusion………………………………………………………………………..70 ix CHAPTER 3 - CONVENTIONAL JUDICIAL APPROACHES TO STATUTORY INTERPRETATION………………………………………………72 I. Introduction………………………………………………………………………...72 II. The Main Purpose of Statutory Interpretation…………………………………….73 III. Judicial Approaches to Ascertaining the Intention of Parliament………………..75 IV. Conclusion……………………………………………………………………….96 CHAPTER 4 - STATUTORY INTERPRETATION UNDER SECTION 2(1) AND (4) OF THE EUROPEAN COMMUNITIES ACT…………………………98 I. Introduction………………………………………………………………………...98 II. Legal and Constitutional Background to the Enactment of Section 2(1) and (4)....99 III. Judicial Approaches to Statutory Interpretation under Section 2(1) and (4)…...116 VI. Conclusion……………………………………………………………………...177 CHAPTER 5 – THE HUMAN RIGHTS ACT: GENERAL……………………179 I. Introduction……………………………………………………………………….179 II. General Scheme and Essential Provisions of the Act……………………………179 III. Conclusion………………………………………………………………………235 CHAPTER 6 – STATUTORY INTERPRETATION UNDER SECTION 3(1) HUMAN RIGHTS ACT…………………………………………………………..236 I. Introduction……………………………………………………………………….236 x II. Judicial Approaches to Interpretation Pursuant to Section 3(1)…………………237 III. Conclusion………………………………………………………………………317 CHAPTER 7 –