Would or should our courts give effect to an Act of Parliament passed by the House of Commons alone with Royal Assent under the Parliament Acts 1911 and 1949 which abolished the House of Lords or judicial review?

There are difficulties with this argument however, for the abolishment of an unrepresentative and unelected House of Lords by the majority rule may be seen as a constitutional right as democracy and elections form fundamental principles of the constitution. I agree with this argument when the route of legislation was passed in the normal way however with particular reference to the Parliament acts I argue their purpose was never to abolish the House of Lords rather to secure the second chamber as a legislative check for the majority commons.

It was apparent in their judgements in Jackson that the Law Lords were much more prepared to revisit the classical propositions (by Dicey and others) outlaying the legislative supremacy of Parliament when the issue of judicial review was raised. Traditionally, parliamentary sovereignty constitutes a duty of the courts to apply legislation made by parliament and that it may not hold an act invalid or unconstitutional. However, the Law Lords in the Jackson case discredited Dicey’s theory to the extent of rejecting the notion of ‘unfettered authority of a legislature, however representative of popular opinion it may be.’ Analysis of the Judgements in Jackson reveal that it is possible that the relationship between parliamentary sovereignty and the rule of law has changed in a move away from the traditional hierarchy that Dicey apportioned to them.

Lord Steyn was the strongest advocate of the authority of courts in future to review primary legislation. On this question, Lord Steyn said that

"If the Attorney-General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney-General implausibly submits."

Lord Steyn referred to the European Union, devolution to Scotland and the European Convention on Human Rights and observed:

"The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, 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 the 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". 

It is apparent from Lord Steyn’s words that Parliamentary sovereignty is a product of the common law and constitutional principles that have arisen from it, therefore it seems a reality that Judges and the courts may qualify and formulate a new approach to the ‘hypothesis of constitutionalism’ which favours the rule of law as our primary constitutional principle and that legislation ought to be in favour of this. Indeed this certainly seemed what was suggested by Lord Hope in Jackson when he stressed that

"The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based".

In considering this new ‘hypothesis to constitutionalism’ we can infer that judicial review and other basic fundamental rights which are considered to the ‘building blocks of democracy [which] necessarily permeate any democratic constitution’ will be protected under the rule of law. This principle seems is given weight under Lord Steyn’s judgement when he confronted whether the judges in future might have to consider whether judicial review was a constitutional fundamental "which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish".  We can therefore conclude that although the Parliament acts have been recognised to permit vast constitutional changes, in the case of abolishing judicial review the courts would not give effect to such an act. The repercussions would be so far reaching in altering the fundamental principle of the rule of law that instead the courts would prefer to revisit the notion of parliamentary sovereignty within the hypothesis of constitutionalism.

Jeffrey Jowell in his article ‘Parliamentary Sovereignty under the New Constitutional Hypothesis’ considered the justification for judicial review to rest upon two assumptions, that parliament ought to abide by the rule of law and that the courts ought to interpret statutes on the assumption of the first premise. He goes further to state that this normative justification simply requires enactments to be read subject to the rule of law. When this proposition is engaged with the justification of judicial review of parliamentary legislation we find that the ‘concept of democratic constitutionalism advanced by judicial review contains an expectation that the rule of law…should be scrupulously guarded-even from decisions approved by the majority of the electorate’.  I agree with Jowell’s theory and advocate that this principle is evident in the history of judicial review in the common law where the courts endorsed the rule of law by identifying those rights of the individual against the state and protecting them as inherent concepts in democratic constitutionalism. Cases such as Entick v Carrington and R v Lord Chancellor, Ex p. Witham illustrate the significance of judicial review in protecting such rights and making it increasingly difficult for Parliament to infringe the rule of law and those fundamental rights. 

From Jowell’s theory I put forward the view that judicial review forms the cornerstone of the rule of law, which in accordance to Lord Steyn and Hope ought to be the primary principle of our unwritten constitution. I argue that the abolishment of judicial review should never be enforced as an act which sought to remove this indispensable characteristic of our constitution.

In conclusion, in the strict legalism sense the courts would give effect to any Acts of Parliament including those passed through the Parliament Acts which aim at constitutional reform. However, we can see from the judgements in the Jackson case that in certain circumstances the courts are unsure as to whether to give effect to such acts. In the case of the abolition of the House of Lords the courts may be tempted to interpret the meaning of the parliament acts to exclude such legislation. However, we see that when poised with the question of challenging fundamental principles of the rule of law, the courts have suggested radical actions such as a re-evaluation of the principle of parliamentary sovereignty. This has to some seemed absurd, as Lord Bingham aptly summarised ‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament’’, however the fact that such obiter exists serve to evidence the changing attitude that in fact the rule of law may prevail as the cornerstone of British constitutionalism.

1531 words.

List of Sources –

Bradley and Ewing – Constitutional and Administrative Law

J. Jowell – ‘Parliamentary sovereignty under the new constitutional hypothesis’ [2006] Public Law 562

Appendix 3: The reasons given by the Law Lords, by Professor Anthony Bradley – Select committee on Constitution Seventh Report

http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/141/14106.htm

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