In the UK, the courts have had an increasing confidence to challenge the Supremacy of Parliament. This is because they are gradually shifting towards a similar role to that of the courts in the US Constitution. This is evident by the fact they are increasingly upholding constitutional principles which Parliament has tried to breach.
The US Supreme Court decides whether legislation is constitutional, and has the authority to ‘strike down’ laws that are not compliant with it.1 The courts in the UK may not hold this power to the same extent, because the UK has an uncodified constitution, meaning an Act of Parliament is the most authoritative law the UK. Therefore, unlike in the US, the courts do not have the final say. However, the legal theory, that was once asserted by Dicey, suggesting Parliamentary Sovereignty means no body has the right to “override or set aside the legislation of Parliament” and thus it will be “obeyed by the courts”2 is no longer as relevant as it once was, as the courts are preventing Parliament from acting unconstitutionally. Any evidence that suggests the courts are gaining more confidence to challenge Parliament, is consequently reflective of the US system. Therefore, to say the courts are subordinate to the same extent as they previously have been, is no longer true.
A significant reason for this growing confidence is due to the increase in the separation of powers in the UK, which is mainly attributable to the Constitutional Reform Act 2005. However, this is not necessarily the most significant cause; other factors have also contributed to this rise in the judiciary, including the effect of Human Rights Act 1998, the European Communities Act 1972 and the influence of the Rule of Law.
According to Montesquieu, the separation of powers is a doctrine that establishes a state should be run following the tripartite system of government, in which the judiciary, executive and legislature form three separate branches.3 A significant turning point that strengthened the separation of powers in the UK, following the partial interpretation,4 was the Constitutional Reform Act 2005, as it created an independent judiciary. This doctrine enables an independent judiciary to limit the legislature from acting unlawfully, as they create an environment that challenges the exercise of power by ministers. Therefore, the courts act as a mechanism of ‘checks and balances’, preventing the concentration of power in Parliament. This indicates that the courts are able to exercise some control over the extent of Parliament’s power, by intervening when they overstep, proving the judiciary is not subordinate to Parliament.
Despite this, Parliamentary Sovereignty must still be acknowledged. The courts’ independence does not eliminate the fact that they are prevented from challenging an Act directly. Alternatively, this argument could soon be outdated. In Jackson, Lord Steyn stated that “in exceptional circumstances” the courts are not bound by the principle of Parliamentary Sovereignty, suggesting judges could potentially ‘strike down’ legislation.5
Previously, the Lord Chancellor was the head of the judiciary, held the role of appointing judges, was a cabinet member and Speaker of the House of Lords. The fact that the head of the judiciary sat in Parliament indicates Parliament had the opportunity to access and influence judicial decisions, especially with regard to the appointment of judges. This potentially politicised an impartial and fair body.6 Consequently, this ability to influence the courts enabled Parliament to prevent restrictions from being imposed on them by the courts. Therefore, the CRA7 removed the judicial functions of the Lord Chancellor and created an independent Judicial Appointments Commission.8 This demonstrates a shift to a transparent, depoliticised independent judiciary.9 The inability to influence judicial decisions or the appointment of judges, narrows the legislature’s power to strictly lawmaking, eradicating their effect on the application of the law. This brings the two branches closer to a ‘level playing field’, demonstrating the courts are no longer subordinate to Parliament. However, McGonnell v United Kingdom asserted that “the Lord Chancellor would never sit in any case concerning legislation in the passage of which he had been directly involved nor in any case where the interests of the executive were directly engaged”.10 This suggests, the Lord Chancellor’s ability to influence the judiciary was limited, questioning the extent these reforms affected the rise in the courts’ constitutional power.
Furthermore, the Appellate Committee of the House of Lords was replaced by the Supreme Court under the CRA.11 This reform allowed for formal separation of powers, as it removed the highest court in the UK from sitting in Parliament. This unwritten convention therefore became legislation, giving the courts formal constitutional power.12 This compelling argument is supported by Lord Falconer stating, “the time has come for the United Kingdom’s highest court to move out from under the shadow of the legislature”,13 referencing that creating an independent judiciary will in turn stop the judiciary from being subordinated, as judgments would be made without Parliament’s partisanship. Ultimately, the separation of powers caused by the CRA, enabled the courts to gain confidence to act similar to those such as in the US, by exerting control over the extent of Parliament’s power.
Yet many have argued the CRA failed to bring about genuine change; it was merely a “symbolic” reform for the public.14 Consequently, to suggest the rise in the judiciary is ‘especially since the Constitutional Reform Act’ lacks credence. This can be supported by the fact that Diplock stated the constitution was “firmly based upon the separation of powers”15, which was long before these reforms. However, even this “cosmetic” change strengthens the judiciary.16 The need to ensure that the public perceives the judiciary as independent, shows the increase in political activism. The courts are depended on by the public, to ensure Parliament acts constitutionally. Although this may not increase the courts’ constitutional power as such, due to the concept of Parliamentary Supremacy, there is an element of political pressure on Parliament. As a result, the courts are able to challenge the legislature more successfully, since Parliament is accountable to the public; defying this would be political suicide. These reforms therefore brought certainty around separation of powers in the UK since Bagehot, conflicted Diplock’s view, calling the UK constitution a “fusion of powers”17 before these reforms. This indicates the Act did bring about change, thus validating its significance in causing the growth in the judiciary’s confidence. However, this dispute does bring to question the significance of the CRA as being ‘especially’ the reason for the growing confidence the courts have obtained relative to other contributing factors.
Regardless of whether the courts are independent, in order to challenge Parliament, they must do so on the basis that they are upholding constitutional principles. Therefore, the Rule of Law has played a significant role in increasing the courts’ constitutional power. This is evident by R v Lord Chancellor, Ex Parte Witham.18 According to the Rule of Law, the right of access to the courts is a ‘constitutional right’, therefore in Witham, it was held that breaching this right constituted ultra vires. Consequently, this constitutional principle of the Rule of Law developed by Common Law, can prohibit unlawful acts and prevail over Parliament’s will.19 The legal theory of Parliamentary Sovereignty does still limit the courts’ constitutional power to an extent, demonstrating this legal theory still remains true. This is because, even though decisions made using the discretion given by an Act can be quashed, the courts have no authority to ‘strike down’ the Act directly. This suggests the courts still remain subordinate to an extent.
Alternatively, the European Communities Act 1972 has enhanced the courts’ constitutional power and eroded Parliamentary Sovereignty. Evidence for this is shown by the wording in s2(4) of the Act stating, “any enactment passed or to be passed…shall be construed and have effect subject to the foregoing provisions of this section” referring to directly effective EU law. 20The use of “have effect” implies the courts are authorised to make domestic law ineffective when not compliant with EU law.21 This demonstrates that the rule of priority enables the courts to ignore Parliamentary Sovereignty. This argument is made more convincing by the Factortame case,22 as it confirmed rule of priority in practice. This demonstrates a substantive limit. According to Dicey, this is not possible: nobody can “override or set aside the legislation of Parliament”.23 Without the effect of Parliamentary Supremacy, Parliament no longer stands as a superior body to the courts. The limitations to this argument is that the ECA24 only enhances the courts constitutional powers while it remains an Act of Parliament. Once it is repealed, it no longer has effect as suggested by the Withdrawal Bill.25 This would remove the courts’ ability to set aside domestic law. Subsequently, the courts are currently not subordinate to the same extent they were before the ECA, but this suspension of Parliamentary Sovereignty in limited and temporary. As it currently stands today, directly effective EU law is the only source that allows the courts to be superior over Parliament in certain contexts.
Moreover, the Human Rights Act 1998 shifted the UK from a political constitution to a legal one, undermining Parliamentary Sovereignty.26 This is supported by K.D. Ewing arguing the HRA27 caused “an unprecedented transfer of political power from the executive and legislature to the judiciary”,28 arguing the courts are no longer subordinated by Parliament. Evidence for this argument is shown by the HRA stating “legislation must be read and given effect in a way which is compatible with the Convention Rights”.29 This essentially authorises the courts to go beyond their constitutional duty of merely interpreting the law, allowing them to manipulate the legislation to make it compatible with the ECHR30, as demonstrated in Ghaidan v Godin-Mendoza.31 The judges interpreted the Rent Act 1977 as applying to those “as if they were husband and wife” in order to make it compatible with the ECHR. Reading this into the legislation shows the courts’ duty of interpreting the law has a very wide scope and is hardly limited. Therefore, the courts’ constitutional power is extremely significant following the HRA, as it enables them to legally undermine Parliamentary Sovereignty. Furthermore, the Act allows for a Declaration of Incompatibility,32 providing the courts with a mechanism to request Parliament to reconsider their decision, again undermining the Supremacy of Parliament. These features of the HRA therefore show the courts are not subordinate to Parliament. On the contrary, however, a counter argument suggests s4 and s19 of the Act33 “maintain and potentially enhance Parliament’s scrutiny of rights and its sovereignty over the courts in defining and upholding them”.34 This debate demonstrates why the HRA has been described as “weak” in empowering the courts, as they cannot strike down laws.35 A Declaration of Incompatibility may strengthen the courts’ power by providing them with discretion to challenge Parliament, however it cannot invalidate legislation. As a consequence, the implication is political rather than legal, indicating the courts are empowered, but not constitutionally. Therefore, Parliament is still supreme, regardless of the HRA.
In conclusion, it is apparent that the courts are no longer subordinate to Parliament to the same extent that they traditionally have been. As mentioned, evidence that shows the courts becoming more powerful constitutionally in relation to Parliament, indicates a shift towards legal constitutionalism, a very prominent feature of the US Constitution. The Constitutional Reform Act 1998 which solidified the separation of powers, contributed to this legal shift by introducing an independent judiciary. However, the European Communities Act 1972 erodes Parliamentary Sovereignty drastically by essentially enabling the courts to ‘strike down’ incompatible laws, thus proving to be highly reflective of the US Constitution. It is the ECA rather than the CRA that caused the most influential shift in confidence by the courts. The Human Rights Act 1998 provided the courts with a new discretion to scrutinize Parliament and the courts have used the Rule of Law to their advantage to enable justice and escape subordination. Resultantly, the legal theory of Parliamentary Supremacy which holds the courts inferior is gradually becoming outdated and losing credence.
1 Andrew Le Sueur et al, Mark Elliott and Robert Thomas, Public Law (Custom textbook University of Bristol, 3rd edition, Oxford University press, 2017) 125
2 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edition, Macmillan & Co, 1959) 39-40.
3 Charles de Secondat, baron de Montesquieu, The spirit of Laws (Translated and edited by Anne Cohier, Basia Miller, Harold Stone, Cambridge University Press, 1989).
4 Andrew Le Sueur et al, Mark Elliott and Robert Thomas, Public Law (Custom textbook University of Bristol, 3rd edition, Oxford University press, 2017) 125.
5 Jackson v Attorney General 2005 UKHL 56.
6 Richard Benwell and Oonagh Gay, ‘The Separation of Powers’ (Commons Briefing Papers SN06053, Parliament and Constitution Centre, House of Commons Library 15th August 2011) 8.
7 Constitutional Reform Act 2005
8 Constitutional Reform Act 2005 ss. 2-3 & 25-31.
9 Josie Kemeys, ‘The United Kingdom Constitutional Reform: Recognition of judicial independence and an opportunity for institutional autonomy’ (MJur, University of Birmingham, 2013) 4.
10 McGonnell v United Kingdom 2000 30 EHRR 289.
11 Constitutional Reform Act 2005 ss. 23.
12 Andrew Le Sueur et al, Mark Elliott and Robert Thomas, Public Law (Custom textbook University of Bristol, 3rd edition, Oxford University press, 2017) 125.
13 HL Deb 9 February 2004, vol 656, cols 926-41.
14 ‘Moving towards a legal constitution’ (Generation Brexit, 9th October 2017)
15 Andrew Le Sueur et al, Mark Elliott and Robert Thomas, Public Law (Custom textbook University of Bristol, 3rd edition, Oxford University press, 2017) 128.
16 Andrew Le Sueur et al, Mark Elliott and Robert Thomas, Public Law (Custom textbook University of Bristol, 3rd edition, Oxford University press, 2017) 622.
17 Walter Bagehot, The English Constitution (Oxford World’s Classics, 2001) 12
18 R v Lord Chancellor, Ex Parte Witham 1998 QB 575.
19 R v Lord Chancellor, Ex Parte Witham 1998 QB 575.
20 European Communities Act 1972 s 2(4).
21 Mark Elliott and Robert Thomas, Public Law (2nd edn, OUP 2014) 336.
22 R v Secretary of State for Transport, ex p Factortame Ltd (No2) 1991 1 AC 603.
23 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edition, Macmillan & Co, 1959) 39-40.
24 European Communities Act 1972.
25 European Union (Withdrawal) Bill 2017-19 (HC Bill 147).
26 Richard Bellamy, ‘Political constitutionalism and the Human Rights Act’ 2011 9(1) International Journal of Constitutional Law
27 Human Rights Act 1998.
28 K. Ewing, The Human Rights Act and Parliamentary Democracy 1999 62 Modern Law Review 79.
29 The Human Rights Act 1998 s3
30 European Convention on Human Rights
31 Ghaidan v Godin-Mendoza 2004 UKHL 30
32 Human Rights Act 1998 s 4.
33 Human Rights Act 1998 s 4 & s 19.
34 Richard Bellamy, ‘Political constitutionalism and the Human Rights Act’ 2011 9(1) International Journal of Constitutional Law
35 Richard Bellamy, ‘Political constitutionalism and the Human Rights Act’ 2011 9(1) International Journal of Constitutional Law