A Critical Analysis of Judicial Review’s Impact on Parliamentary Sovereignty
This article was edited and published by exeterlaw.org (republished with permission).
Judicial review supports the sovereignty of Parliament to a degree, however it remains a threat where appropriate (i). This threat is not unjust, as it establishes an element of bi-polar sovereignty between the two powers (ii).[1] This allows for a calculated application of both parliamentary sovereignty and the rule of law, creating a fair state for the citizens of the United Kingdom (iii).
Throughout judicial review proceedings, the judiciary has maintained a relatively consistent degree of respect for the concept of parliamentary sovereignty. This can be seen from cases such as Padfield,[2] where the actions of the executive are curtailed in order to maintain the sovereignty of Parliament and its laws. The Diceyan concept of parliamentary sovereignty remains a key cornerstone of the constitution, and is vital, as Dicey himself said, for the maintenance of the freedom and liberties of the citizens of the country.[3]
Another case indicative of the courts’ general appreciation of parliamentary sovereignty in judicial review is the recent Supreme Court case of Miller.[4] The ramifications of this case for the United Kingdom and its relationship with the European Union have been immense. Starting with a blog post from Professors Barber, Hickman and King,[5] the question of whether the Secretary of State for Exiting the European Union could use their ministerial prerogative to initiate article 50 found itself in the highest appellate Court in 2016. It was held, with a majority of 3:2, that the minister’s prerogative was not sufficiently strong to allow for the article to be triggered, and as such an act of Parliament had to be passed. As Elliot writes, this may well be an indication an increasing level of respect towards parliamentary sovereignty occurring through the judiciary –[6] this is particularly apparent through the almost lackadaisical approach the Court took to assessing the breadth of the statute and whether the prerogative could be used. The judgement provided no solid rules to be used as precedent, an indication perhaps of the Courts’ almost laboured attempts to protect parliamentary sovereignty.
That said, there have been moments where it is appropriate for the courts to take on a more dominant approach towards the concept of Parliamentary Sovereignty. For example, in the judicial review case of Jackson,[7] it was clear that their Lordships, in particular Lord Steyn, were aware that parliamentary sovereignty is a common law creation — and if Parliament were to legislate and remove it, the courts would have to intervene.[8] The facts of Jackson are not as important for this analysis, but what this case shows is that there is still a strong element of legal constitutionalism inherent in the opinions of the judiciary, which may pose a threat to the sovereignty of Parliament.
Jowell has noted that the concept of parliamentary sovereignty is ‘outdated’[9]. I cannot say I agree, parliamentary sovereignty is a vital component for the fair maintenance of the constitution, and it is clear (as we have already established), that its key principles are judicially upheld where possible. That said, there are, as in Jackson,[10] times when the court must, through judicial review, retain their own degree of sovereignty. Without judicial review, the executive’s discretion would be unlimited, and the Montesquieuian concept of the separation of powers would be abolished. Such an action would be disastrous for the people of the state, as a lack of separation is, essentially, totalitarianism.[11] Lord Hailsham commented extra-judicially that the concept of parliamentary sovereignty is itself a form of ‘elected dictatorship’.[12] I cannot say I agree entirely with this point, and prefer the opinion of King, which is that Parliament, through its utilisation of acquiescence, ratification, and authorship, allows for a ‘beautiful’[13]democracy. Without the necessary checks of the courts, this would not be possible.
However, how can one reconcile this fight for power between the courts and parliament? One compromise comes from Professor Knight in the form of bi-polar sovereignty — a doctrine which suggests there is a shared sovereignty between the courts and Parliament.[14] This must be respected. As established through the case of Jackson,[15]parliamentary sovereignty is not perfect, it is often threatened. However, through judicial review, it is respected to a degree where it maintains a functional purpose.
These theories, however, all centre around one sole concept. Craig has been critical of the State’s obsession with a singular principle of parliamentary sovereignty,[16] asking why, in constitutional law, there is one overarching principle? I would posit that there is not, and that the rule of law plays an equally important role within our judicial and legislative system. The rule of law allows for Knight’s bi-polar sovereignty to exist and creates a fair state for the citizens of the United Kingdom. Raz is critical of attaching too much value to the concept of the rule of law. He insists that, simply, there should be law.[17] Furthermore, attaching any currency to this concept will push away from its purity and into an area wherein it accrues a political value.[18] This incarnation can only function theoretically. Judicial review is not a perfect system, and as such there can never be a perfect application of the rule of law.[19] Instead, what exists is a calculated balance of both parliamentary sovereignty and the rule of law, both of which cover where the other falls short. Bingham LJ was a proponent of the importance of the rule, and both his judgements and his posthumous literature are indicative of this.[20] One particular example of his judicial application of the rule of law is in the case of YL v Birmingham City Council.[21] Dissenting, Bingham LJ saw the importance of providing welfare to YL, and that the law should not be in place just to protect parliamentary sovereignty, but also to protect the individuals who rely on the law.[22] Academics have, however, been critical of his application of the rule of law, writing that he is furthering a commodified stance to welfare.[23] This, I would argue, is unimportant in our case as his Lordship is, regardless, seeing the importance of the application of the rule of law. Furthermore, in the judicial review case of Fewings,[24] his Lordship notes the importance of the executive’s lack of unfettered discretion, stating that ministers must have law to rely on, and that they do not share the same legal freedom as citizens.[25] This is a vital point of the rule of law, and has been extended upon in further case law.
In Evans,[26] Lord Neuberger placed the concept of the rule of law above that of the sovereignty of Parliament. As Parliament attempted to ignore a decision of the judiciary, his Lordship stated that the rule of law must prevail, and posed a question asking what the point of courts was, if Parliament could simply override them.[27] This is one of the only examples in which the rule of law was favoured over parliamentary sovereignty. However, it is still in the balance, and does not deny Parliament their sovereignty. Neuberger LJ could be accused of judicial activism, however, what he is doing is restating the integrity and necessity of the Courts, and therefore the rule of law.
The concept of bi-polar sovereignty allows for a system of governance which protects the people who rely on it. Dicey once stated that parliamentary sovereignty is the most important feature of the state, as it allows for the protection of its individuals. I would disagree, what is important cannot be identified in one overarching concept, what is required is a fine balancing act of the sovereignty of Parliament, and the rule of law. There may be circumstances in which the scales tilt too far one way or too far the other, however, judicial review allows for a balance of these principles, which further leads on to a fair, calculated administration of power within the state.
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[1] C.J.S Knight, ‘Bi-polar Sovereignty Restated,’ (2009) 68 Cambridge Law Journal 361.
[2] Padfield v Minister of Agriculture [1968] AC 997.
[3] Albert Venn Dicey, Introduction to the Study of Law of the Constitution (8th edn, LibertyClassics, 1982) pp. 3–4.
[4] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[5] Nick Barber, Tom Hickman, Jeff King, ‘Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role’ (U.K. Const. L. Blog, 27 June 2016) <https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/> accessed April 2019.
[6] Mark C. Elliott, ‘The Supreme Court’s Judgement in Miller: In Search of Constitutional Principle’ (2017) 76 Cambridge Law Journal 257.
[7] R (on the application of Jackson and others) v Attorney General [2005] UKHL 56.
[8] ibid 102.
[9] Jeffrey Jowell, ‘Parliamentary Sovereignty under the new constitutional hypothesis’ [2006] PL 562.
[10] Jackson (n 7).
[11] MJC Vile, Constitutionalism and the separation of powers (2nd edn, Liberty Fund Inc, 1998) 15.
[12] Speech by Lord Hailsham (British Broadcasting Corporation, 1976).
[13] Jeff King, ‘The Democratic Case for a Written Constitution’ (University College London, 2018) <https://www.youtube.com/watch?v=JAqL-v0kOq8&t=1446s> accessed April 2019.
[14] Knight (n 1).
[15] Jackson (n 7).
[16] Paul Craig, ‘Formal and substantive conceptions of the rule of law: An analytical framework’ [1997] PL 467.
[17] Joseph Raz, ‘The Law’s Own Virtue’ [2018] Columbia Public Law Research Paper 14.
[18] ibid.
[19] Endicott, ‘The Impossibility of the Rule of Law’ (1999) Oxford Journal of Legal Studies 1.
[20] Thomas Bingham, The Rule of Law (Penguin Books, 2011).
[21]YL v Birmingham City Council [2007] UKHL 27.
[22] ibid.
[23] Morag McDermont ‘Commentary on YL v Birmingham City Council and Others.’ in Rosemary Hunter and Clare McGlynn and Erika Rackley (eds), Feminist Judgements: From Theory to Practice (Hart Publishing 2010).
[24] R v Somerset County Council, ex p Fewings and others [1995] 1 WLR 1037.
[25] ibid 1042.
[26] R (on the application of Evans) v Attorney General [2015] UKSC 21.
[27] ibid 52.
