The Debate of Judiciary

Constitutionally, the United Kingdom has an unwritten and uncodified constitution, dissimilar to that of France or the United States. Historically, the Bill of Right 1689 entrusted the House of Commons with legislative powers as well as the monarch with common law powers. The start of the 17th century saw judicial propositions that Parliamentary legislation may be subjected to judicial control. In Dr Bonham’s Case in 1610, Chief Justice Coke stated:

“ … it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Acts to be void …” [1]

The statement made above by Chief Justice Coke in 1610, made it apparent that the courts are in a position of overturning an Act of Parliament, which has brought up a number of debates as to the actual role of the courts and their rapport with Parliament. In Bonham’s case, Coke referred to a range of case law to buttress his statement that, common law stands the chance of influencing Acts of Parliament [2] and it was further what Chief Justice Coke stated in Tregor’s Case which clearly advocated common law overriding enacted legislation. [3]

A much more rational and feasible approach became apparent in the last four decades within the United Kingdom through judicial initiatives and procedural reforms of administrative law. The emergence had no effect on Parliamentary sovereignty, nevertheless, judicial reviews controls legitimacy: limitations granted by Parliament to public powers must be taken to have been reflected over when granting them; failure to adhere to this makes exercising the power a nullity. However the latter part of the 20th century witnessed a turn in events. By 1981 Lord Diplock affirmed “that progress towards a comprehensive system of administrative law …. [has been] the greatest achievement of the English courts in my judicial lifetime” [4] .

Parliamentary sovereignty which has centuries been established as the primary principle of constitutional law in the United Kingdom, restricts governmental powers and shares powers between different organisations with the sole aim creating checks on those powers.

There have been propositions that under extreme situations a different model may as well be come into existence at common law. Parliamentary sovereignty is referred to as the composition of the judiciary. It relies on the everyday acknowledgement by the courts of laws enacted in the House of Commons. The questions hence is should there be any changes by the courts in the similar traditional manner in which common laws were developed? Cannot there be statutes too extreme for the courts not to acknowledge them? This would serve as a judicial insurgency, not change. Nevertheless, in 2004 the Asylum and Immigration Bill which was aimed at preventing discontented people admittance back to the Immigration Appeal Tribunal. Undoubtedly, this proposal was withdrawn and challenged by the House of Lords.

Another controversial issue occurred from the Hunting Act 2004. The Act was intended to ban fox-hunting; exclusive of the House of Lords approval after being delayed a year, the Act was enacted by the House of Commons as a result of employing both the Parliament Acts 1911 and 1949. The 1911 Act placed a two years delay period after which Parliament can enact legislations which were initially refused by the House of Lords. The 1911 Act was further exercised in 1949 to cut down the two years allocated to the House of Lords in the 1911 Act to one year. In spite of this, in evidence to R (Jackson) v Attorney General [2005] UKHL 56, legitimacy debates arose over the 1949 Act. [5] The line of reasoning was that the House of Commons were using the 1911 Act to empower themselves which they only obtained in the 1911 Act. The issue was put before the courts to decide as to what is regarded as a Parliamentary Act, which possibly posed an issue in regards to judicial reaction in extreme circumstances.

In recent times, there have been debates as to whether judges should be granted powers to strike down primary legislation in extreme circumstances as noted above and not in regards to conformity with the Human Rights Act 1998 or the power to misapply domestic law which is contrary with EU Law. Professor Goldsworthy argues that, Parliamentary sovereignty has been acknowledged decades ago and was not established by the judges, hence, cannot alter unilaterally. [6] The judiciary have for centuries now recognise and uphold legislations enacted by Parliament, which as stated by Goldsworthy is a key comp