Submitted By: Silvia Martins
Ekins has argued 'Parliament should take seriously its responsibility for maintaining the balance of the constitution' and that 'parliamentarians should act to limit judicial power and thereby help to restore the political constitution and the common law constitutional tradition'.
What is the role of the judiciary in the UK constitution? Does the balance between the judiciary, executive and parliament need to be rebalanced?
Ekins, (2019). Protecting the Constitution: How and why Parliament should limit judicial power. London: Policy Exchange.
The courts’ constitutional role has expanded greatly over the past few years. Today, and perhaps more than ever, the courts hold a position of central importance in relation to the concept of the rule of law and protection of individuals’ rights; principles which rank supreme in the UK’s constitutional order. Contemporary societal attitudes have possibly led to this change, along with the substantial increase in executive powers and the passing of the Human Rights Act 1998 (hereinafter HRA). The judiciary have developed grounded lines of judicial interpretation which are quasi-constitutional in nature to protect these fundamental rights. The rights enshrined in the HRA can only be enforceable through access to an independent judiciary; which has factually existed since 2005.
The doctrine of parliamentary sovereignty, the constitutional bedrock on which the UK’s constitution lies, has created notable political and legal debate. Thus, the ultimate power rests in the hands of the Westminster Parliament. Such a doctrine, in contemporary 21st century society, needs to be treated with caution when constitutional principles are raised. The courts have asserted themselves as the ultimate oversight body of Parliament, ensuring that the rule of law runs through all veins of the state.
This essay intends to make a briefly analysis on the role of the judiciary and how it has significantly contributed to the balance of the UK constitution. It is important to point out that this essay does not reject legislative sovereignty to establish judicial supremacy. What it suggests however, is a decentralisation of powers.
Constitutional role of the judiciary
When asking what the constitutional role of the judiciary is, it could be said that ‘Parliament makes the laws, the judiciary interpret them’. Nevertheless, judges themselves make law through the English common law tradition. This is done literally when courts interpret legislation (where the meaning of legislation is unclear or are deemed to be incompatible with constitutional principles, such as those in the HRA). Judges can go beyond the plain meaning of a statute when they interpret law in accordance with the HRA, this can be seen in the case of Ghaidan v Godin-Mendoza. Here the court ruled that s.3 of the HRA is to be interpreted widely. It was ruled that the courts may read into words, or adopt a meaning that is linguistically strained, even if there are no ambiguities in the legislation. This is permitted even if it means that the court must depart from the apparent intention of the legislation.
Section 3 HRA gives the courts extensive powers — and, indeed duties — of constitutional interpretation. The word ‘possible’ seems overly broad, allowing the judges to apply their personal interpretation in the widest “possible" way (in accordance with the Convention); giving them the widest possible interpretative techniques, including reading existing provisions and even reading into the words which change their meaning. Subsequently, s.3 does not give a specific set of boundaries to the way that judges should interpret, and this permits the courts to exercise quasi-legislative powers, which might challenge the strict separation of powers.
Judicial review (JR) is another mechanism which allows the courts to go beyond mere interpretation. It is the key function of the courts to exercise their supervisory jurisdiction over public bodies and to ensure that those bodies observe the substantive public law principles. JR gives the courts the power to interpret the unwritten ‘constitution’ and declare void actions of the executive and other public bodies if they are deemed to conflict with it. Regarding primary law, the courts can only make a declaration of incompatibility when Parliament legislates against the HRA, thus preserving parliamentary sovereignty. Incompatible legislation remains valid/enforceable, whether it has been subject to a formal declaration of incompatibility.
When it comes to reviewing secondary legislation, the Supreme Court appears to share some features of a constitutional court. Any Acts made by the devolved legislatures are subject to judicial scrutiny on the grounds of its “constitutionality”. The devolved bodies are subject to JR on the “ground that they have strayed beyond their legislative competence”, transpiring that a devolved legislature has surpassed their delegated competencies. This will be invalidated by the court as ultra vires.
Constitutional Acts (as recognised in Thoburn v Sunderland City Council) require sensitivity because ultimately the courts could find themselves ruling on a point of law that alters the fundamental balance of devolution structures and ultimately the UK Constitution. Regarding the devolution Acts, the courts need to adopt a more sensitive approach. Robinson v Secretary of State for Northern Ireland proves that the court exercised caution when dealing with constitutional statues such as the Northern Ireland Act 1998, otherwise, the court could have easily caused significant political instability in Northern Ireland.
The Supreme Court can be seen to “play an essential role in ‘fleshing out’ the, sometimes skeletal, requirements of the ‘unwritten’ constitution” through the development of the principles of JR; rights recognised by the common law and through the requirements of the rule of law and separation of powers. As has been demonstrated, JR is a fundamental function within the UK’s constitutional order, it is a method of holding public bodies accountable for their decisions. The development of JR principles provides some basic protection for individuals and allows people to have their rights vindicated by an impartial judiciary.
The urgent need for a constitutional change
In the UK, there is no codified constitution setting out the role and powers of the judiciary, executive or parliament. The country follows Montesquieu’s classical exposition of the separation of powers doctrine, nonetheless, defining the balance between the three branches becomes problematic. It should be kept in mind that with a lack of a constitution it is expected to see a certain degree of judicial interference in the political sphere, especially because the different elements that constitute the UK constitution (common law, statutes and conventions) may contradict each other and this is where judicial intervention might be necessary to ensure the smooth running of the state. Brexit procedures are the practical example of this.
In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland it was argued that the exercise of the prerogative power to prorogue was a political, not legal, question. ‘If Parliament had a problem with it, it was for Parliament to sort it out’. This did not happen, in fact, the Supreme Court held the actions of the Prime Minister unlawful, which makes one question, why the courts had to intervene with this political issue if the Parliament is considered supreme?
Dicey’s orthodoxy declares that Parliament is sovereign; it has the power to make/unmake any law and do so without the possibility of its decisions being overridden or set aside by another body or person. This theory does not hold balance as key to a successfully operational constitution. Firstly, the word ‘sovereign’, with its absolutist undertones, could be viewed as being incompatible with the separation of powers, it is inconsistent with, or destructive of, separation of powers as it prevents any other bodies formulating a system of checks and balances on Parliament’s actions. Secondly, it is appreciated that the powers of each branch of government are determined by the principle of legality. Respective powers of parliament, executive and judiciary must be consistent with the principle of legality rather than the concept of sovereignty. Thirdly, the House of Lords is not elected, so how can parliament be considered as the people’s representative if it is not fully elected?
Lord Woolf wrote that: "if Parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was without precedent". This might be paradoxical but it is important to note that the rule of law is also the keystone of the unwritten British constitution; and that is for the courts to protect and uphold that fundamental principle when an Act of Parliament is deemed to be unconstitutional. Of course, this naturally leads to the predominance of the judiciary in the constitution, which goes against the desire of many, such as Ekins, for instance. Judges may not be elected, but they have consistently demonstrated their trustworthiness and credibility as guardians of the rule of law and protection of fundamental rights. Despite that, it is not advisable to place the judiciary in a central position within the constitution, as judges in fact do not represent the citizenry through the electoral system.
A new political system where parliament would be supervised can be created through adopting a written constitution. In this system courts would make a “declaration of unconstitutionality” instead of a “declaration of incompatibility” when Parliament legislates against constitutional norms. A “declaration of unconstitutionality” though judicial review would be a great remedy to protect fundamental rights. The constitution would be regarded as supreme and the sovereignty would be in the constitution, the individual bearer of rights, and law, rather than in any specific institution. So, neither parliament nor the courts would have the 'last word' on any matter. This would doubtless maintain/preserve the balance of the constitution and all institutions (including parliament) would be bound by it.
It is difficult to establish the precise boundaries between the respective powers of the three branches without a codified constitution. So, the courts can, therefore, easily intervene in the political arena. The courts have been prodigious in calling the executive to account, however some matters are not justiciable as seen in Miller (No2), as it is categorised as ‘too political’.
Although the idea of parliamentary sovereignty was formed to allow supremacy of people’s interests, it is necessary to remember that Parliament is not fully elected. Thus, it is not convenient that parliament makes/unmakes any laws as it wishes, this might go against to the people’s desires in general or even contradict their individual liberties. As Rawls says “[…] in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining […]”.
Opposing what Ekins says, the judiciary does not pose a danger to the traditional model of the UK constitution if judges continue to uphold the rule of law. In fact, it is the UK’s constitutional tradition that needs to be altered with by a written constitution or a Bill of Rights, which would, it is hoped, rebalance the powers of the judiciary, executive and parliament.
Table of authorities
Attorney General v National Assembly for Wales Commission  UKSC 53
Duport Steels Ltd v Sirs  1 WLR 142
Ghaidan v Godin-Mendoza  2 A.C. 557
Imperial Tobacco Ltd v Lord Advocate  UKSC 61
R (Miller) v Secretary of State for Exiting the European Union  UKSC 5
R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland  UKSC 41
R. (on the application of Jackson) v Attorney General  UKHL 56
Robinson v Secretary of State for Northern Ireland  UKHL 32,  NI 390
Thoburn v Sunderland City Council  WL 45403
Human Rights Act 1998
A.V. Dicey, The Law of the Constitution (1885)
Allan T., The Sovereignty of Law Freedom, Constitution and Common Law, Oxford University Press, (2013)
Bogdanor V., ‘The New British Constitution’ (Hart Publishing, Oxford and Portland, Oregon 2009)
Rawls J., ‘A theory of Justice’, Harvard University Press, (1971)
Ekins R, Judicial supremacy and the rule of law, L.Q.R. , 119, 127-152
Jenkins D., Common law declarations of unconstitutionality, International Journal of Constitutional Law, Volume 7, Issue 2, April 2009, pages 183–214
Lakin S., ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 709-734 <https://www.jstor.org/stable/20185394> accessed: 25 April 2020
McCorkindale C. and others, ‘The courts, devolution, and constitutional review’. University of Queensland Law Journal, (2017)
Woolf L., ‘Droit Public – English Style’, Public Law (1995)
Masterman R., 'The UK Supreme Court: A Constitutional Court In All But Name? - Durham University' (Dur.ac.uk, 2020) <https://www.dur.ac.uk/research/news/thoughtleadership/?itemno=40221> accessed 15 April 2020
 Lord Diplock in Duport Steels Ltd v Sirs  1 WLR 142, 157 p.14.   2 A.C. 557.  See R (Miller) v Secretary of State for Exiting the European Union  UKSC 5.  See HRA 1998 s.4.  Vernon Bogdanor, ‘The New British Constitution’ (Hart Publishing, Oxford and Portland, Oregon 2009) at p.115  Christopher McCorkindale and others, ‘The courts, devolution, and constitutional review’. University of Queensland Law Journal, (2017), pp. 289-310.   WL 45403 para 63.   UKHL 32,  NI 390.  See other constitutional issues regarding devolution Acts in Imperial Tobacco Ltd v Lord Advocate  UKSC 61 and Attorney General v National Assembly for Wales Commission  UKSC 53.  Roger Masterman, 'The UK Supreme Court: A Constitutional Court In All But Name? - Durham University' (Dur.ac.uk, 2020) https://www.dur.ac.uk/research/news/thoughtleadership/?itemno=40221 accessed 15/04/2020.   UKSC 41. A.V. Dicey, The Law of the Constitution (1885), pages 39-40.  Stuart Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 709-734 <<https://www.jstor.org/stable/20185394>> accessed: 25-04-2020.  Lord Woolf, ‘Droit Public – English Style’, Public Law (1995) pages 57–71.  See R. (on the application of Jackson) v Attorney General  UKHL 56 para 107.  See Richard Ekins, Judicial supremacy and the rule of law, L.Q.R. , 119, 127-152.  See David Jenkins, Common law declarations of unconstitutionality, International Journal of Constitutional Law, Volume 7, Issue 2, April 2009, pages 183–214.  Trevor Allan, The Sovereignty of Law Freedom, Constitution and Common Law, Oxford University Press, (2013), ch. 1.  See John Rawls, ‘A theory of Justice’, Harvard University Press, (1971), pages. 27-28.