This to Parliament. Following changes, such as

This
essay will argue that although constitutional change within the UK may have
affected the relationship between the courts and Parliament, ultimately courts
are subordinate to Parliament.  Following
changes, such as the Human Rights Act or the Constitutional Reform Act, it can
be said that the courts are in a more central position, however Parliament’s
power is preserved. Parliament is sovereign in exercising its legislative power
and judges are consistent with this when carrying out their interpretative
functions.

 

Due
to the absence of a codified constitution, the UK is different to other
countries, as there are no strict ground rules, in which the constitutional
authority between the legislature and the rule of law may be tested. In the
British constitution, Parliament is the highest legal authority and its
legislation forms the highest level of law1.
The rule of law represents the ways in which executive actors are lawfully bound
and the courts exercise this through the interpretation of legislation.
Generally, it is viewed that Parliament is sovereign so that courts cannot
assess the validity of primary legislation nor override it. This is endorsed by
the Diceyan conception, which outlines that Parliament has ‘the right to make
and unmake any law whatever’2.
A hypothetical example of this is put forward by Sir Leslie Stephen, whereby ‘if a legislature decided that all blue-eyed babies
should be murdered, the preservation of blue-eyed babies would be illegal’3. This is important as it
emphasises the lack of legal limitations that Parliament faces by the courts.
Evidently, this extreme approach may not be prominent as Parliament would not
impose such controversial laws, however, it suggests that the courts cannot
pose legal boundaries on primary legislation. Rather, their statutory
interpretation expresses the will of parliament. Therefore, this traditional
view may be defined more clearly as Parliament having ‘legislative
supremacy’ as it is ‘subject to no legal limitations’4.
The courts may have received tools which have made them more important, but
they have not altered the basic fundamental principle that Parliament is
supreme in its law making function.

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As a result of constitutional development, the traditional view has
been countered by obiter dictum in Jackson, whereby judges have supported
notions that Parliamentary supremacy is a ‘construct of common law’. As well as
proposing that the courts might strike down an Act of Parliament if it breached
fundamental principles, such as judicial review5.
Professor Barendt supports this, with the view that it is the courts who decide
the extent of Parliament’s authority6.
It suggests that if the principle of sovereignty is created by judges,
effectively they could change it. Potentially what is trying to be stressed
here, is the importance of the rule of law exercised by judges as equal to or a
limit to this doctrine. However, there may be weaknesses to this argument that
protect the supremacy of Parliament. For example, constitutional reforms that
have been enacted have the idea of Parliament’s supremacy in mind and
therefore, courts cannot exercise a high level of discretion. Despite this
obiter dictum, in practice courts presently cannot legally challenge acts of
Parliament. As Lord Bingham holds in contrast to Professor Barendt, ‘The judges
did not by themselves establish the principle and they cannot, by themselves,
change it’7.
Professor Goldsworthy continues this further by explaining that the courts
should not make changes to parliamentary supremacy as it is fixed by consensus
between the branches. The courts did not solely create the doctrine.8
This may be a more convincing argument of the courts’ position as they do not
make policy in the same way as Parliament so do not have the power to strike
down ts Acts. Lord Bingham and Barendt place the courts secondary to Parliament
by implying that even if there were to be change, this could not be done by the
courts themselves as they do not have the authority do this without consensus. Alternatively,
it can also be argued that the courts’ source of power derives from Parliament enacted
changes and due to their supremacy, Parliament can reverse these changes if they
wished. This will be observed further, showing that UK courts are different as
they lack judicial activism characteristics that give other constitutional
courts greater significance.  

 

Efforts
to strengthen the independence of the judiciary is evident through the passage
of the Constitutional Reform Act. This is mainly seen through the establishment
of a new Supreme Court9,
which contributed to enforcing a clearer separation of powers. It was held that
that the court that previously sat in the House of Lords should ‘move out from
the shadow of the legislature’10,
committing to the idea of a court independent to Parliament. This went together
with the reform of the Lord Chancellor’s role, whose power was reduced and the
new position given to the Lord Chief justice. They also both have an obligation
in maintaining the independence of the judiciary.11
At face value, it would seem that these changes are significant by removing the
judicial role of the House of Lords, therefore, establishing a clearer difference
between the legislative that makes laws and the judiciary which applies it. Nevertheless
the extent of this is limited. For instance, the Supreme Court largely mirrors
the Appellate Committee that it replaced as it continues its role of hearing
appeals alike the Law Lords. Although it is the highest court in the UK, the
Supreme Court is not supreme as it cannot challenge the Acts of Parliament. This
is different to constitutional courts elsewhere, for example, the US Supreme
Court that has the ability to declare acts of Congress void as recognised in Marbury
v Madison12. Unlike
the US model which provides stronger checks to prevent the domination of one
branch, the UK’s judiciary is not equally distinct from Parliament.13Hence,
suggesting that the Constitutional Reform Act may only be significant in
changing the appearance of the judiciary. In all other aspects, the Supreme
Court’s role has not altered to overcome the traditional view that it is subservient
to Parliament. Physically, the Constitutional Reform Act has succeeded in
providing a body that is separate and independent to the legislature, however
in principle, it appreciates that Parliament will retain its legal supremacy. This
contributes to the view that the judiciary’s constitutional values may have
some legal importance, but does not circumscribe Parliament’s status.

 

Consequently,
the limited impact of the Constitutional Reform Act serves as a reflection of
how constitutional changes made to the judiciary remain to protect the superior
position of Parliament. This is evidenced by the Human Rights Act 1998 (HRA), which
gives effect to the rights established in the ECHR. It is correct that this
gives courts a more important role as legislation must be applied in a way
which is compliant with the Convention14,
which would in turn allow them to declare laws unlawful if not15.
However, it was confirmed from the initial stages of the HRA’s enactment that
parliamentary sovereignty would be preserved by disallowing courts to overrule
primary legislation even if incompatible with convention rights.16
The courts must give effect to ECHR rights ‘So far as it is possible to do so’, indicating that if
parliament were to clearly implement a law that infringed rights, the judiciary
would have to apply it. Moreover, a declaration of incompatibility does not legally impact the
validity of legislation, rather more convincingly the effect is ‘political not
legal’ as put forward by Baroness Hale. This was prompted by the Belmarsh case,
whereby the courts’ declaration under section 4 contributed to pressure to
repeal part 4 of the Anti-Terrorism Act17.
This suggests that courts can only indicate to Parliament to make a change,
whereas political morality being a larger factor towards Parliaments response
to an incompatible provision. This puts the courts in a weaker position as they
are simply in an advisory position and cannot force Parliament to act
accordingly. Ultimately, under the HRA, the judiciary has a weak check; it does
not exceed its constitutional function of applying enacted legislation, as
opposed to the misleading view that they may divert from its meaning. This is
further emphasised by Lord Nicholls’ approach that the courts will ‘go with the grain of the legislation’18. Regardless of the
political landscape, the relationship between the courts and Parliament is
characterised by the fact that Parliament effectively has final say in
legislation.

 

This
theme is consistent with the way in which courts apply EU law.  In relation to the European Communities Act 1972,
legislation of Parliament will ‘be construed and have effect subject to’ EU
law.19
A notable example of this is the decision of the House of Lords in Factortame20,
which shows that courts will not apply an Act if it
conflicts with Community law. It may appear that through membership of
the European Union, the courts have acquired a stronger platform to exercise
their powers in regards to the acts of Parliament. Wade believes that parliamentary
sovereignty is a fixed principle that cannot be altered legally, but simultaneously,
Parliament’s authority can be limited or changed through a ‘revolution’21.
This depicts Factortame as a judicial revolution as the law Lords recognised EU
law as supreme. Whereas, Allan disagrees with Wade’s idea of a judicial
revolution, by questioning if Factortame was so momentous, then why the Lords
failed to recognise this.22This
poses as a weakness to Wade’s view as the judges were implementing Parliament’s
will, which was ‘entirely voluntary’23.
The judges also highlighted this in HS2, regarding Factortame as a ‘significant
development’, but not to the extent that it required the courts to cross the
boundaries of their interpretative functions. Wade’s suggestion that Parliament’s
supremacy has been eroded by the judges may not be prevalent because, the
courts were simply operating within the system and moreover, Parliament can
still make any law. In this sense, the courts are not modifying constitutional
law. The courts give direct effect to EU legislation simply because an Act of Parliament
has allowed them to do so and in
turn, Parliament can depart from the EU when it wishes. Therefore, this
authority is not in the hands of the court and legislative supremacy is left
intact.

 

To
conclude, the courts remain to be subordinate to Parliament. It is notable that
there has been an increase in judicial responsibility and independence as a result
of constitutional changes. Yet the courts are different to constitutional courts
elsewhere as they are not policy makers or have the power to declare primary
legislation void. The doctrine of supremacy has not been surpassed by the
common law as Parliament is not substantially bound by the courts, rather they
perform the intentions as applied in statutes. Fundamentally, the courts cannot
change this principle themselves or directly impose limitations, regardless of the
theoretical implications of the Jackson case, thus conveying that presently they
are in a lower position than Parliament.

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