From 1842 until the UK’s accession to the European Community in January 1973, the House of Lords had not received a single case regarding the absence of limitations of Parliament’s law-making authority. The historic role of the courts in the United Kingdom as subordinate to parliament is owed to the fact that there is no written constitution that explicitly defines its powers, in contrast to countries such as the United States, of which the boundary between executive and judicial branches of the government were defined through cases such as Marbury v Madison. In recent years, it is impossible to deny that judicial powers have been transformed and have given courts the opportunity to exercise these powers in ways that were previously limited. The separation of powers and parliamentary sovereigntyThe British separation of powers did not come about as a result of constitutional design, rather, as a result of “political experience, the logic or accident of events” and was a “confrontational, bi-partisan, bi-polar separation, between the only two powers the constitution has ever recognized as enjoying any degree of sovereignty, namely the Crown and Parliament”. It seemed that due to this, the courts’ role was restricted to reaffirming parliamentary sovereignty as political fact, acting as “handmaids to Parliament’s will” . Following that, the lack of codified constitution resulted in jurisdiction becoming “a matter of inference rather than express provision”, and Britain’s mixed model government only seemed to further subordinate the judiciary to elected branches of government.
The traditional view of parliamentary sovereignty was advocated by A.V. Dicey, who argued that “in theory, Parliament has total power” in regards to the fact that parliament could pass any laws and regulate any activity, and could not bind itself or its successors through legislation nor have its laws challenged by the courts. This traditional view meant that even under the doctrine of separation of powers, the executive branch still possessed the authority to limit the powers delegated to the judicial and legislative branches. Yet the principle of the rule of law is one that recognizes that power in a constitutional democracy must not be absolute.
The contradictory manner in which the British separation of powers and parliamentary sovereignty coexist was and still is the subject of much scrutiny, thus leading to the creation of the Constitutional Reform Act 2005. The Constitutional Reform Act 2005The main target of the CRA seemed to be the “nineteenth-century fusion of governmental power” with the post of Lord Chancellor that held both judicial and executive powers reformed, alongside the formation of an apex court for the whole of the United Kingdom, as well as judicial independence made visible thus allowing for transparency that did not previously exist. The traditional manner in which the judiciary was managed had been changed through the conception of the Act that seemed to have emboldened the courts, most notably in the recent Miller case whereby it was ruled that the UK government could not initiate withdrawal from the European Union without an Act of Parliament permitting it to do so. It is evident from Miller that the historic subordination of the courts to the executive branch was no longer the case, and is an example of the courts executing its constitutional functions. In Jackson, the orthodox view that parliamentary sovereignty was supreme in the UK was contested – the case contained obiter comments suggesting that there were limits to parliamentary sovereignty, and Laws LJ in A v B contended that it was “elementary that any attempt to oust the High Court’s supervisory jurisdiction over public authorities is repugnant to the constitution”. Perhaps “the most potent weapon available to the United Kingdom Supreme Court”, the decision in Anisminic could be utilized in order to support the reinstitution of jurisdiction ousted by statute in an attempt to further distinguish the legislative branch as being one that is even more independent after the implementation of the Act.
However, the independence of the courts is not a new issue. The case of Factortame marked the first time that the courts utilized their constitutional power of restraining and disapplying an Act of Parliament when it was found to contradict EU law. Wade argued that in disapplying the Act, the doctrine of parliamentary sovereignty had been overthrown and a legal revolution had taken place.
In this sense, the implementation of the CRA did not exactly grant courts independence, nor did it catalyze a new era of judicial activism. Moreover, it would be incorrect to say that the CRA has empowered the courts such that legislature itself can be altered. Parliamentary sovereignty is arguably still intact, visible namely through cases such as Hirst v UK where a ban on prisoner voting was ruled to contradict EU law yet no effort was made by Parliament to amend it.
Ewing points out that judges in their own conservatism may favour an archaic view of parliamentary sovereignty, most notably in upholding the use of control orders such as in the AY case – the formalisation of judicial independence through the CRA does not guarantee that it will be exercised accordingly. The European Communities Act 1972The UK’s membership of the European Union has also often raised questions about parliamentary sovereignty and the role of courts in regards to EU law. In HS2, Lords Mance and Neuberger delivered a joint judgment stating that the ECA 1972, CRA 2005 and the Human Rights Act 1998 were also to be considered constitutional instruments. The Lords argued that the ECA would not force UK courts to prioritize EU law over local laws if the latter had a particular level of constitutional importance. There seem to exist a hierarchy of constitutional instruments, and the ECA’s role as one that could give effect to EU law was not guaranteed to be able to override fundamentally more important instruments. It can be inferred from this judgment that once again, the existence of judicial independence is not synonymous with the exercise of judicial independence.
The Human Rights Act 1998Enacted with the aim of incorporating into UK law the rights of the European Convention on Human Rights, the HRA also made it a requirement to regard the opinions of the ECHR as well as to interpret legislation in a way that is compatible with the Convention. Laws LJ concluded in Thoburn v Sunderland City Council that the HRA was a constitutional statute that could not be repealed by subsequent legislation, thereby placing the burden of explicit repeal on Parliament. The provisions made by the HRA have been put to use in cases such as R (Hammond) v Secretary of the State for the Home Department; the Criminal Justice Act of 2003 that required High Court judges to conduct certain criminal review procedures without an oral hearing was interpreted to include implied judicial discretion to order an oral hearing if necessary to comply with Convention rights. In Ghaidan v Godin-Mendoza, it was ruled that the meaning of spouse in the Rent Act 1977 could apply to a homosexual couple and interpreting it as only applying to heterosexual couples was discriminatory within the HRA and contradicted Article 14 of the ECHR. In this regard, the HRA has contributed to the fact that courts have, in the recent few decades, begun to gain newfound confidence in subverting Parliament. The HRA’s role in advancing judicial activism was also apparent in Pomiechowski v Poland, where Lord Mance and Lady Hale had adopted a “distinctly purposive approach to the interpretation of the relevant legislation” using section 3 of the HRA to interpret section 108 of the Extradition Act 2003 to ensure that it would comply with article 6 of the ECHR. Nonetheless, David Jenkins argued that courts are able to issue declarations of unconstitutionality, similar to declarations of incompatibility, regarding Acts of Parliament when “Parliament legislates against legal norms or fundamental baselines for political behaviour deemed by courts of special significance within Britain’s unwritten constitution” .
These declarations of unconstitutionality would still be respectful of parliamentary sovereignty in that they would not be binding, nor affect legal validity of the statute in respect of which they were made, and still openly recognize Parliament’s exercise of sovereign power within an accepted constitutional context. ConclusionThough portrayed as a “cosmetic alteration to constitutional structure, the symbolic detachment of the judiciary… has added an institutional dynamic to the principle of judicial independence” that it previously did not have. It would be false to say that courts have gained confidence to take on roles similar to that of constitutional courts elsewhere. Rather, it would be more accurate to say that these Acts have given courts the power to do so, though they may not necessarily exercise it.