The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.
I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to press them would be totally unacceptable. I refer to what I have alluded to already, the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but
“No authority was cited to support them, and no detailed reasons were given.
I cannot for my part accept that my colleagues’
observations are correct... To my mind, it has been convincingly shown”— by Professor Goldsworthy, one of the greatest authorities on this subject—
“that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it…
What is at stake”— said Professor Goldsworthy—
“is the location of ultimate decision-making authority…
If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”
Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:
“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”
With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.