As Mark Elliott highlights, exercises of legislative authority are indeed evaluated and interpreted by reference to fundamental constitutional values, namely accountability, the right to liberty, access to justice and the right to a fair trial. This is done through the courts evaluating statute and developing the common law in order to protect and safe-guard individuals’ rights. This can be seen through their maintaining the separation of powers and the rule of law, whilst exercising the instrument of judicial review.
To discuss this further, this essay will be organised as follows: Section 2.0 will discuss the complex constitutional landscape of the UK by first looking at AV Dicey’s orthodox view of parliamentary sovereignty in Section 2.1, before discussing the fundamental role of the courts in Section 2.2. This highlights the debated tension between our organs of state which Mark Elliott is alluding to. However, in discussing this, I will demonstrate how accession to the European Union and adoption of the Human Rights Act 1998, has transformed our constitutional landscape beyond Dicey’s theorising. This emphasises how fundamental constitutional values play a significant role in judicial decision making. Altogether, this illustrates the complexity, and indeed richness, of our constitutional landscape as Mark Elliott describes.
Section 3.0 discusses the activist approach, taken by the courts within this rich constitutional landscape, which adds value by further safeguarding rights. In doing so, it focuses on a number of key cases, such as A and others v Secretary of State for the Home Department , Anisminic v Foreign Compensation Commission , R v Secretary of State for Transport, ex parte Factortame Ltd. (No.2) and R v Lord Chancellor, ex parte Witham – the latter three of which take particular precedence. Section 3.1 then accounts for the contrasting viewpoint, that the courts are overstepping the mark, but explains that this is an ultimately misinformed argument. It explains why the Human Rights Act 1998 and accession to the European Union do not cause disequilibrium in our constitutional system whilst also accounting for cases of judicial deference. Fundamentally, it is seen that the courts, when analysing statute from parliament and developing the common law, are enhancing legislative authority rather than challenging it.
Finally, Section 4.0 concludes that the courts are protecting the fundamental constitutional values, which parliament seeks to serve and are thus, not only respecting exercises of legislative authority, but, as alluded to above, adding value to this through the subtle checks and balances inherent in our system. This essay therefore agrees with Mark Elliott, as the courts role enhances accountability, public confidence in our system and the effectiveness of our constitutional arrangement. The courts are not becoming governors but undertaking their fundamental role in a more modern way. This tells of a richer constitutional landscape.
2.0 Overview of the UK’s Constitutional Landscape
2.1 AV Dicey’s Orthodox View of Parliamentary Sovereignty
A constitution is a set of rules and principles which: define a state’s fundamental political role; establish a framework to govern the state; and guarantee the rights and freedoms of citizens. Unlike the great majority of nations, the United Kingdom is unique in that it does not have a single constitutional document detailing how the relationship between the state and its citizens operates. Instead, the UK constitution exists in a more abstract sense, deriving from fundamental statutes, conventions, judicial decisions and treaties. This means that it cannot be said to be ‘unwritten’, but rather described more accurately as ‘uncodified’ . This is largely a result of the historic stability of Britain, in so far as there has not been large scale revolution or regime change, which often necessitates the detailing and consolidation of constitutional laws. The United States is a key example of this. Primarily, this explains why the United Kingdom’s constitutional landscape has developed organically, or indeed, on an ad hoc basis.
There are three branches, or organs, to the UK state: the judiciary, the executive and the legislature. Within this arrangement, Parliament is seen as the sovereign body. Known as the principle of Parliamentary Sovereignty, it concerns the limits, or indeed lack thereof, to the legislative competence of Parliament. The doctrine emerged through the power struggles between Parliament and the crown following the Glorious Revolution of 1688-1689 and the subsequent Bill of Rights . This led to Parliament being granted a significant amount of power from the monarch. The most influential theory discussing this principle comes from A V Dicey , who described it as encompassing three basic rules: Acts made by Parliament are seen as the supreme form of law in the UK; no Parliament may be bound by a predecessor or may bind a successor; and no person may question the validity of an Act of Parliament. This manifests as there being no substantive legal limitations on the legislation that Parliament may enact. It also supposes that Parliament can, ‘unmake any law whatsoever’, through the repeal process – the positive aspect of Dicey’s definition – and that nobody can override or set aside parliamentary legislation – the negative aspect of Dicey’s definition. Parliament is therefore the sovereign law-maker. As a result, statutes enacted by Parliament are seen as superior to the common law, which could be seen to substantially limit judges in developing this area.
However, as alluded to in my introduction, changes to the UK’s ever richer constitutional landscape have transformed this orthodox Diceyan view. Indeed, “the United Kingdom’s constitution changed more between 1970 and 2000…than during any comparable period since at least the middle of the 18th century” , and while Dicey’s theorising rightly still holds significant weight to constitutional scholars and decision makers, the traditional notion is somewhat modified in the modern day. This is a result of significant changes to our constitutional scenery, such as our accession to the European Union, adoption of the Human Rights Act 1998 and, related to this, an increase in judicial activism and common law constitutionalism. The latter describes a body of theories surrounding constitutional adjudication, which hold that, in the same way in which a codified supreme constitution will affect legislative authority, so too do the fundamental values entrenched in the common law. This is what Mark Elliott indicates. Supporters of these theories consider that, either the common law’s fundamental principles levy considerable restrictions on the sovereignty of Parliament, as common law is superior to statute law, or, in a lighter form, that the common law controls the interpretation of legislation .
The question that Mark Elliott’s quote therefore creates is, to what extent do the courts exercise an activist role, and is this adding value to our constitutional landscape? In answering that question, this essay shows that, in agreeance with Mark Elliott, the existence of common law constitutional principles does tell of a more complex constitutional landscape, within which, exercises of legislative authority are evaluated and interpreted by reference to fundamental constitutional values, the guardians of which are primarily the courts.
The debate is as follows: on the one hand, it is argued that the exercises of legislative authority, particularly the sovereignty of parliament, are being increasingly eroded, to the extent that, ‘the power of the judges is increasing to the point of their becoming the governors’ . This occurs where the courts advance the common law in place of statute, showcasing a doubt in the absoluteness of parliamentary sovereignty. On the other hand, it is seen that the role of the executive and legislature remains a robust part of this landscape, given experiences of judicial deference. This essay aims to provide clarity to such polemic by arguing that common law constitutional principles are justifiably advanced by the courts as Parliament does not legislate in a vacuum. As Sir John Laws highlighted, “judges mediate Parliament’s legislation so that, so far as possible, it conforms to civilised constitutional principles whose guardians are the courts” . Therefore, the courts enhance Parliament’s role, as opposed to challenge it.
2.2 The Role of the Courts
First and foremost, it is necessary to highlight that the traditional notion of executive power is somewhat inaccurate in the modern day. Mark Elliott’s quote above explains this by showing that the nature and scope of exercises of legislative authority are ultimately confided within the UK courts. Their role is to enforce the law and adjudicate disputes between individuals and the state. In doing so, they interpret statute from Parliament, but also develop the common law as seen in Entick v Carrington and Stockdale v Hansard . This is exemplary of the separation of powers and rule of law principles. The former surrounds the argument that for a constitution to be efficient, the three branches of the state should be separate. The judiciary, in particular, should be independent from the executive in order to properly hold the government to account, as emphasised in the Constitutional Reform Act 2005. In the UK, however, hard divisions between these organs of the state are not hugely stringent as compared to the United States and Germany, given the considerable overlap that exists between them. The latter, the rule of law, surrounds the fact that those exercising a governmental function should not be able to exercise power arbitrarily- they are subject to legal controls. This principle is often exercised through judicial review and is echoed in John Locke’s words that, ‘Wherever law ends, tyranny begins’ .
The courts analyse statute and develop the common law by reference to fundamental constitutional values. The first role, analysing statute, was historically undertaken via a literal approach to statutory interpretation. However, there has been an increasingly more purposive approach adopted, particularly following the UK’s accession to the European Union and following the adoption of the Human Rights Act 1998. This is evident in Section 3(1) of the Human Rights Act 1998, which states that: “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights” . Indeed, the Human Rights Act 1998 has been a key area of contention in the constitutional debate. In giving judges new powers, some argue that their authority is increasing beyond its constitutional remit. This is particularly seen when discussing Section 3 of the Human Rights Act 1998, as above, but also Section 4, which says that where it is not possible to interpret a statute compatibly with the European Convention on Human Rights under Section 3, the courts can issue a declaration of incompatibility. This does not invalidate statute, but instead allows ministers to amend the legislation via a fast track process. I will critique this argument towards the end of my essay, when looking at arguments about judges overstepping the mark. Similarly, accession to the European Union has caused heated debate about the purposive approach, given that many see it as a predominantly European method.
Furthermore, joining the EU has had further ramifications for the UK’s constitutional landscape. In Costa v Ente Nazionale per l’Energia Elettrica (ENEL) for example, it was said that: “the member States have limited their sovereign rights, and albeit within limited fields, have created a body of law which binds both nationals and themselves” . This directly conflicts with Dicey’s orthodox philosophy, and such debate is discussed when analysing the case of Factortame Ltd. (No.2) . The purposive approach can also be seen when considering that over time, judicial review has grown much broader in scope. In essence, the purposive approach involves giving effect to the purpose of the legislation and ‘reading down’ values so as to protect the fundamental rights of the individual. The basic task of the court is to determine and give effect to the true meaning of Parliament. This is a vital responsibility of the courts which cannot be dissolved. This does not however, mean that a literal approach is the soundest way to go about this. In fact, the literal approach can encourage great prolixity in drafting, for some may feel obliged to provide expressly for every possible eventuality.
3.0 The Activist Approach
This leads into the argument that the courts exercise their responsibility in an increasingly activist way. However, this is not a bad thing per se. One of the fundamental pillars to our constitutional landscape is the principle of the rule of law which demands that, “there must be formal requirements as to the general characteristics of law and the legal system” . This concerns acknowledgment of human autonomy and dignity which requires that our law is clear, publicly accessible and predictable . To ensure the safeguarding of this when we have no written constitutional document, requires our courts to take an activist role when it is needed. This is not an avantgarde experiment by our courts but is representative of the judiciary’s’ effective protection of our constitutional doctrine and so, in some ways, judicial activism is a tautology. As Lord Bingham explained in A and Others : “…the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself…it is wrong to stigmatise judicial decision making as in some way undemocratic.” This was confirmed somewhat by Lord Reid in his lecture, The Judge as Lawmaker, where he explained that, “while it was once ‘thought almost indecent’ to suggest that judges make law, the notions that judges only declare the law was outdated” .
Obiter remarks made in R. (on the application of Jackson) v Attorney General , are also demonstrative of this. The case concerned whether the Parliament Act 1949 and the Hunting Act 2004 were valid Acts of Parliament. The claimants proposed that the 1949 Act was not in itself validly enacted and hence any Acts passed under it were also not valid. This was because the 1949 Act became law using an earlier Act (the 1911 Parliament Act), never designed to be used to amend or extend itself. The Law Lords questioned the relationship between parliamentary sovereignty and the rule of law as seen by Lord Steyn’s words: “The classic account given by Dicey of the supremacy of Parliament…can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.” Lord Steyn particularly spoke of an attempt to abolish judicial review, which he held Parliament as unable to do. This was affirmed by Lord Hope in explaining that: “Our constitution is dominated by the sovereignty of parliament. But this is no longer, if it ever was, absolute. It is not uncontrolled…It is no longer right to say that its freedom to legislate admits no qualification whatever.” Such an approach can also be seen in Lord Neuberger’s judgment in R (Evans) v Attorney General . These cases demonstrate that Parliament derives its authority to make statutes from fundamental common law constitutional principles, as Mark Elliott alludes to, and that the interpretive approach adopted by the courts shows them strongly protecting the rule of law where this may be threatened.
The courts are not then, imposing their own views of social justice, as many try to argue, but rather they are reaffirming the fundamental principles upon which our constitution rests. They are not challenging executive authority but observing what Parliament intended. If the executive and/or the legislature is seen to be acting ultra vires, there must be a gate keeper where constitutional fundamentals are at risk. Indeed, the role of the courts and the rules of interpretation that they use, exhibit a respect for Parliament and its legislative role. As Dominic Grieve QC MP points out, these rules, “are founded on norms shared by Parliament and the courts as to how it will typically be fair for legislation to take effect, and the courts proceed on the assumption that Parliament acts in the interests of justice when it legislates” . It also recognises the reality that, however well Parliament legislates, some interpretation may be needed, as no organ of the state is faultless.
This is further demonstrated in in the cases of Anisminic , Factortame Ltd. (No.2) and Witham . The former surrounded an action for a declaration that a decision of the Foreign Compensation Commission was a nullity. This brought up two issues: First, whether the tribunal had made an error of law by not allowing compensation on this occasion; and second, whether an appellate court had the jurisdiction to intervene in the tribunal’s decision given that Section 4(4) of the Foreign Compensation Act 1950 which set up the commission, read: “the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law”. It was found that the Foreign Compensation Act did not prohibit the court from intervening on whether the tribunal was a nullity (which the court deemed it was) and that the ouster clause, removing the element of judicial review, was invalid.
This decision shows that the courts are reluctant to give effect to any legislative provision which can be seen to exclude their jurisdiction in judicial review. In fact, the majority in this case declared that it would be a gross affront to the rule of law if the courts had their powers of review ousted, as the Act suggested, as the Commission’s power would be unrestricted. In short, to have ousted the court’s jurisdiction in this case, would have meant that an error of law would have been indorsed, making the public bodies’ decision ultra vires. Therefore, the court exercised its fundamental constitutional role and maintained the common law constitutional principles and values, namely, accountability and the rule of law, which are inherent to our system. This is an effective use of their role, which safeguarded fundamental constitutional principles and values where an organ of our state made an error. Indeed, no body is faultless, and this necessitates the need for checks and balances which enhance the executives role in a complex system. This is especially important when legislation is rushed through Parliament, as seen in Part 4 of the Anti-Terrorism, Crime and Security Act 2001 which intended to legalise detention without trial. Although eventually found to be unlawful, this was not found until after a derogation from Art 5(1) of the European Convention on Human Rights had been made.
The courts role to safeguard fundamental constitutional values through an activist approach can also be seen in Factortame Ltd. (No.2) , where the Appellate Committee of the House of Lords granted an injunction to prevent parts of the Merchant Shipping Act 1988 from taking effect. The case surrounded legislation which required that, to register a ship in Britain, most of its owners needed to be British nationals. A group of Spanish fishermen called for a judicial review of this, given that it discriminated based on nationality, which breaches European Community (EC) law. In this case, Lord Bridge interpreted the European Communities Act 1972 to mean that UK statute would not apply where it conflicted with European law – essentially, where there is this juxtaposition and incompatibility between domestic and EC legislation, EC law shall take precedence. While some argue that this undermines exercises of legislative authority in the UK, this must not be taken at face value and I critique this argument towards the end of this essay, when exploring the argument that judges are overstepping the mark.
The case of Factortame Ltd. (No.2) is also vital, as it shows how the courts cannot declare a statute or statutory provision to be void altogether. In enforcing the law and adjudicating disputes, the courts do not look to render exercises of legislative authority invalid, but instead explore how statute can rightly reflect the principles and values inherent to our constitutional landscape. This reinforces Mark Elliott’s words and shows that it is not the courts role to formulate public policy; this can be seen when they make a declaration of incompatibility. It is then suggested, in some cases, that Parliament redraft the legislation in question so that it properly echoes those constitutional values and principles that it overlooked. This is precisely part of what Mark Elliott eludes to when he says that, “exercises of legislative authority are evaluated and interpreted by reference to fundamental constitutional values”.
Furthermore, Witham provides another crucial example of the courts protecting fundamental common law rights, namely access to justice. The claimant applied for a judicial review of the decision of the Lord Chancellor to introduce the Supreme Court Fees (Amendment) Order 1996. The court held that the Lord Chancellor had acted ultra vires by setting fees which contravened Section 130 of the Supreme Court Act 1981 (The Senior Courts Act), which effectively limited the common law right to access the courts. As Justice Laws explained in the judgement: “the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose views in main legislation specifically confers the power to abrogate. General words will not suffice.” No clear words in the primary legislation existed which would have identified the abrogation of the right of access to the courts. Resultingly, the statutory provision was held to be unlawful and the judgement shows that, when a common law right is under threat, the judiciary performs its crucial role of interpreting the statutes against the scenery of our established common law constitutional principles and values. A similar state of affairs is seen in R. (on the application of Unison) v Lord Chancellor surrounding the unlawful imposition of employment tribunal fees.
These cases illustrate that it is unquestionable that our common law constitutional principles, “form highly significant benchmarks against which the constitutionality of legislation is assessed” . As a result, these principles serve to ensure that our sovereign legislature does not occupy “a normatively barren constitutional landscape that is empty but for the exercises of its will” . Instead it operates in a complex and rich landscape where its decisions are rightly inspected, as Mark Elliott indicates.
3.1 Over-Stepping the Line
Nonetheless, some do not align with the view that the courts activism adds value to our complex constitutional backdrop. Some believe the courts excessively impinge on legislative authority, principally parliamentary sovereignty, in so far as, ‘our imperial judges are out of control’ .
In seeing our judges adopting adventurous understandings of their jurisdiction, some take particular issue with the Human Rights Act 1998, which provides special protection for the fundamental rights enshrined in the European Convention on Human Rights and Fundamental Freedoms. However, adoption of the Human Rights Act 1998 does not affect our constitutional landscape to the extent that many contend. Parliament may still enact a statute that conflicts with Convention rights if its language is very clear and the courts cannot quash this legislation outright – rather they can declare it as incompatible, if it cannot be interpreted in a harmonious way under Section 3 of the Human Rights Act 1998. This merely indicates that the legislation is to be amended to better reflect our inherent constitutional principles and values. In addition, the Human Rights Act 1998 can, technically speaking, be subject to repeal by a simple majority given that it is not entrenched- as Jenkins highlights, the Human Rights Act 1998 is “strictly qua law” .The courts, in interpreting whether legislation is consistent with Convention rights, are not overstepping the mark, as such, instead, they are maintaining the subtle checks and balances that keep our system just, dependable and honourable. This enhances exercises of legislative authority.
Contention also surrounds the UK’s accession to the European Union. Those who disagree with the judiciary’s activist approach often contend that where judges give priority to European law over domestic law, they directly skew the balance of our constitutional arrangement. However, this does not cause disequilibrium. Indeed, member states chose to join the EC and can ultimately remove themselves from following EC law by withdrawing, as we have seen with the 2016 EU referendum in the UK. Indeed, “no Parliament can restrict the sovereignty of future Parliaments, thus making any delegation of power to the European Union voluntary and ultimately retractable” . Furthermore, our Parliament has also put in place several institutions for scrutinising EU legislation. Therefore, the fact that EU law has taken precedence over UK law in critical cases is demonstrative, not of an imbalance or waning executive or legislature, but of the UK’s complex and rich constitutional landscape. As aforementioned, Parliament does not legislate in a vacuum. This was said by Lord Steyn who further reasoned that: “Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption” . The latter sentence is key as Parliament does not always get things right and the courts role is to comply with what Parliament must have intended, and what parliament must have intended is not always clear.
In addition, judicial restraint is exercised when necessary. This can be seen in R. (on the application of Privacy International) v Investigatory Powers Tribunal , where the courts held that decisions of the Investigatory Powers Tribunal were immune from judicial review. In contrast to Anisminic , an ouster clause was held to be effective to exclude judicial review. This deferential approach can also be seen in Malone v Metropolitan Police Commissioner , where it was ruled that there was nothing unlawful about the Police intercepting the claimant’s telephone conversations. The court in this case, refused to find a right to privacy in English law and held that, given the complexity of the matter, it was for Parliament to intervene, rather than the courts. In the judgement, Sir Robert Megarry V-C explained: “…it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another”.
These cases show that our judges are not ‘out of control’, but in fact act in a measured and subtle way. Their role lies in analysing statute and developing the common law by exploring the meaning that Parliament chose or may be reasonably taken to have chosen. Where this cannot be done, and where judges see themselves as having no place to do so, as in Malone , a court will not impose its own views of social justice or legislate in a new field. As Christopher Forsyth explains, in reality, “the words of a statute are not an empty vessel into which the courts, in a process of ‘constitutional interpretation’, pour a meaning they consider consistent with ‘constitutional principle’ or ‘the rule of law’ or the ‘principal of legality’…” . Indeed, this shows how the courts maintain the separation of powers, a fundamental common law constitutional principle, and that they themselves understand the boundaries of their power. This shows the courts acting appropriately within our complex constitutional landscape and ultimately reaffirms Mark Elliott’s analysis.
The aim of this essay was to explore Mark Elliott’s words by focusing on several key cases. In doing so, it is seen that the existence of common law constitutional principles do indeed tell of a richer constitutional landscape within which exercises of legislative authority are evaluated and interpreted by reference to fundamental constitutional values. This is seen through the courts advancing the common law and interpreting statute to protect the fundamental constitutional values, which parliament seeks to serve. This essay maintains that constitutional goods are best maintained through right-protecting common law decisions and interpretation exercised by the courts, but that judges ultimately understand the parameters of their role. This is seen through instances of judicial deference. Finally, this essay has illustrated that the judiciary enhances accountability, public confidence and the effectiveness of our constitution – this adds value to the legislative authority as opposed to challenging it and tells of the complex constitutional landscape that Mark Elliott describes.