It could be argued that the courts are no longer subordinate to Parliament, although that this increase in confidence is not solely the result of the Constitutional Reform Act 2005. Since the Constitutional Reform Act, there has certainly been greater independence for the Judiciary, as the courts became less influenced by the political sphere of the executive and now have the confidence to take on a wider role. Indeed, changes to the role of the Lord Chancellor and the establishment of the new Supreme Court have especially reinforced the Separation of Powers doctrine and the need for the judiciary to be distinct and uninfluenced by the Parliament. Although, other factors have equally contributed to the changing climate of our constitution, the creation of the Human Rights Act 2004 has led to the courts being able to take on a new interpretative role, and given them more power to essentially challenge statutory provisions. Likewise, Judicial Review has further provided the judiciary with the ability to question and review executive policy, further undermining Parliament. The combination of these factors has saw the UK constitution have elements of a legal one, as opposed to purely political, contradicting legal theorists such as Dicey and his conception of parliamentary sovereignty. However, despite all these developments, arguably the UK courts have not quite ‘acquired the confidence to take a role similar to that of constitutional courts elsewhere’, especially when you compare for example, the Supreme Court of the USA where justices can outright strike down acts of the congress to the UK Supreme court, where judges are limited by the notion of Parliamentary Sovereignty.
The first factor to be discussed that has seen the courts receive greater independence from Parliament is the Constitutional Reform Act 2005. Driven by pressure for a more distinct separation of powers and greater transparency, the act reformed various elements of the Judiciary. As seen in the case of Pinochet No 1 2000 1 AC 61, there was great concern that the executive, in this case Margaret Thatcher, influenced the judgement of some of the judges as she was present whilst the final judgements were being delivered in the Appellate Committee.1 This led to independence of the judiciary being called into question, with Law Lords arguing that ‘the functional separation of the judiciary at all levels from the legislature and the executive is a cardinal feature of the modern, liberal, democratic state governed by the rule of law.’ 23Previously, the Lord Chancellor, although being a member of the House of Lords, was also responsible for the appointment new judges as well being part of the legislature. This was seen as clearly problematic, as there was a chance that his political affiliations and parliamentary position may create bias when selecting judges, violating Article 6 of the European Convention on Human Rights,4 which deals with access to independent and impartial tribunals. As part of the reform, the Lord Chancellor is now responsible for overseeing the judicial appointment process and protecting the impartiality of the judiciary whilst not being directly involved in the process himself. Similarly, through moving the Appellate Committee away from the Houses of Parliament and establishing the new Supreme Court, the Courts are seen as being independent from Parliament and in control of their own personal affairs without undue political influence. Although this move may be seen as being rather superficial in function, it could be argued that it in fact, along with the reformation of Lord Chancellor role, constructs the impression that the Judiciary are not accountable to the executive, enabling them to tackle issues and cases that may very well challenge Parliament and put them under scrutiny.
The process of Judicial Review is arguably another equally important way in which the UK courts are able to exert their Judicial power over Parliament. Through enabling public bodies to be subjected to legal scrutiny and challenge, the constitutional significance of the rule of law is reinforced. Although primary legislations of Parliament are exempted from Judicial Review, there is no such restriction on secondary or delegated legislation, and thus the administrative courts are essentially able to question the implementation or the legality of statutory instruments delegated by Parliament. Whilst many view Judicial Review as an effective way of holding public bodies, including the government, to account and ensuring the legality of public policy, others have argued that it has enabled unelected judges to gain inappropriate power. For example, former Conservative leader and home secretary Lord Howard expressed his concern over the manner in which “more and more decisions are being made by unelected, unaccountable judges, instead of accountable, elected Members of Parliament who have to answer to the public for what happens.” 5The sort of rhetoric expressed by Lord Howard is not unpopular, with the issue of judicial review and the increasing power of the courts being one of great contention and debate. This was especially of great significance in the case of R (Evans) v Attorney General 2015 UKSC 216, popularly characterised as the ‘battle between the judiciary and the executive’. The key underlining issue of the case was whether the Attorney General was able to utilise his veto under the Freedom of Information Act 7to override a judicial decision. It was held by a 5:2 majority that the Attorney General’s veto under the act was not valid, as a member of the executive could not override a decision of the courts purely on the basis that he did not express the same views. In his extended judgment, Lord Neuberger went further and discussed his own views on the constitutional importance of the judiciary. According to Lord Neuberger, “a decision of a court is binding as between the parties and cannot be ignored or set aside by anyone, least of all the executive”, and secondly, that it is “a fundamental rule of law that decisions and actions of the executive are … reviewable by the court at the suit of an interested citizen.” 8Here, Lord Neuberger is essentially reinforcing the way in which the rule of law is a core principle of the UK constitution, and cannot be challenged or undermined even by the executive. Such narrative is also found in the case of R (On The Application Of Jackson) V Attorney General 2005 UKHL 569, where Lord Hope states that ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based10.’ He continues, ‘Parliamentary sovereignty is no longer, if it ever was, absolute.’ By arguing such, Lord Hope contends that the rule of law, as implemented by the UK courts, is more central to the constitution than parliamentary sovereignty, which he believes no longer exists in the strict Dicyan sense, thus holding the UK courts to the same standard, or an even higher one than Parliament.
However, even if we were to contend that the UK courts are not subordinate to Parliament, to say that they have acquired the confidence to take on a role similar to that of constitutional courts elsewhere is arguably an overreach. If we compare the Supreme Court of the United States to that of the United Kingdom, we begin to see the stark differences between the two distinct constitutions and thus the different limits placed on their respective justices. The key differences are best highlighted through the historic case of Marbury v. Madison, 5 U.S. 1 Cranch 137 180311, which created precedent for judicial review cases in the US and established the utmost importance of the American constitution. By ruling that the court were not legally permitted to issue the writs of mandamus and that the act that legislated such is invalid, the courts essentially established themselves as ‘the final arbiter of the constitutionality of congressional legislation.’ Whilst the US Supreme Court are able to strike down legislative acts from the executive that fail to comply with the constitution, the UK court holds no such power. This is largely due to the fact that unlike the US, we hold no single written and codified constitution, but rather a combination of constitutional principles, the most longstanding of which is ‘Parliamentary Sovereignty’. According to Dicey, one of the conceptions of Parliamentary Sovereignty is that ‘the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’12 Whilst many legal academics and judges such as Lord Hope may argue that Parliamentary Sovereignty no longer exists in such a narrow sense, this long standing principle means that the UK courts cannot directly and explicitly override an act of Parliament, as this would not be within their judicial power. Thus, unlike the US Supreme Court, the UK courts have limitations on their judicial power and so are not wholly similar in their functions.
Whilst the UK courts may not be able to directly override acts of Parliament, the Human Right Act 1998 13can be argued to have given judges more interpretative powers when it comes to applying laws deriving from the European Convention of Human Rights (ECHR), which in certain cases, has allowed them to implicitly depart from the original intention of parliament when passing legislation, again affirming their power and constitutional significance. By provision of Section 3 of the Human Rights Act 1998, ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’ 14Whilst judges are entitled to issue a declaration of incompatibility where a clear contention between UK law and ECHR arises, more often than not, ‘creative’ interpretation is utilised even it means giving the statute a meaning not intended by parliament, and thus undermining them. This can be seen in the controversial case of Ghaidan V Godin-Mendoza: Hl 21 Jun 200415, where judges had to construe the original statute of the RA 1977 16to include those in homosexual relationships, although it was clear that Parliament at the time when writing the legislation, did not intend for such an interpretative reading but rather intended the statute to strictly encompass heterosexual couples in a marriage. As stated by Lady Hale, ‘the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.’17 Although many would agree with the moral reasoning of the judges’ decision and the importance of upholding article 14 of the ECHR which criminalised discrimination on the basis of sexual orientation, arguably by interpreting the statute in such a way, the judiciary are openly challenging Parliament and affirming their own power and ability to legislate, supporting the notion that the courts are no longer subordinate but rather have grown in confidence.
Ultimately, recent political changes such as the Constitutional Reform Act, the Human Rights Act, and the growing popularity of Judicial Review have meant that the functions of the UK courts have grown and expanded before what they previously entailed. The judiciary are not accounted for by Parliament, and thus are able to uphold the rule of law and rights of citizens through reinforcing their constitutional value and highlighting how Parliament are not immune or exempted from scrutiny. Arguably, the occasionally contentious relationship between the executive and judiciary is only a natural consequence of the democratic and free society in which we live in, and thus should be viewed as proof of the success of our democracy in that the government are held accountable for their actions and cannot use its position of power to excuse violating the rule of law. Thus, the increasing power of the Judiciary is not a challenge to Parliament itself, but rather the principles of the rule of law and Parliamentary sovereignty work together to ensure the functioning of British society and the protection of citizens and our rights.
1 Pinochet No 1 2000 1 AC 61,
2 Public Law, Mark Elliott and Robert Thomas, Customs Publishing, p569
3 The Law Lords’ Response to the Government’s Consultation Paper on Constitutional Reform, p1
4 Article 6, European Convention on Human Rights
5Lord Howard, 2014, http://www.independent.co.uk/news/uk/politics/powers-of-unelected-judges-should-be-cut-2193588.html
6 R (Evans) v Attorney General 2015 UKSC 21
7 Freedom of Information Act
8 Lord Neuberger, R (Evans) v Attorney General 2015 UKSC 21, p52
9 R (On The Application Of Jackson) V Attorney General 2005 UKHL 56
10 Lord Hope, R (On The Application Of Jackson) V Attorney General 2005 UKHL 56, p107
11 Marbury v. Madison, 5 U.S. 1 Cranch 137 1803
12 A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)
13 Humans Rights Act 1998
14 s3, Human Rights Act 1998
15 Ghaidan V Godin-Mendoza: Hl 21 Jun 2004
16 RA 1977
17 Lady Hale, Ghaidan V Godin-Mendoza: Hl 21 Jun 2004, p32