Judges and the Constitution this essay, the scope, limitations and applicability of the concepts of Parliamentary Sovereignty and its 'sovereign' legislative powers will be examined in light of the influence of the judiciary

Using the Parliament Acts to Abolish the House of Lords

A significant conclusion from Jackson is that as long as a legislative document satisfied the relevant rules, the courts will give effect to it regardless of what internal procedures were followed. The judgments from the case also give some insight on whether the Parliament Acts can be used to legislate on matters dealing with the changing Parliament’s composition. For instance, Lord Steyn’s view is that because the stated words of the Act made it clear it was an intention of Parliament to remove the need for approval of the Lords, this intent will be given force. Further, Baroness Hale gives the view that the 1911 Act can be used to enact any change regarding its composition.

In the absence of any obscurity or ambiguity and given that a legislation have been passed in the ‘manner and form’ required, Acts of the sovereign Parliament is not subject to the court’s scrutiny of whether the Act is valid. As discussed above, the Parliament Acts 1911-1949 expressly gave ability to the Commons to pass a Bill with Royal Assent even if the House of Lords had not given consent to it (Excepting ones to extend the life of Parliament, which would alter the representative nature of the government). In the judgements of Lord Steyn and Lady Hale of the Jackson case, we also see that this may include constitutional changes like alterations to the composition of parliament. It follows that with a literal interpretation of the Acts Parliament can lawfully introduce legislation which removed the House of Lords. It has been argued that the intent of the government as expressed in the Acts could not have possibly meant to lead to the potential abolition of the Second House, but this has also been countered with the objection that speculation about the intention is only based on political contextual reasons and has no legal effect on the literal interpretation of the Acts’ express terms.

The fact that the Parliament Acts provides the Commons and Crown a means to reform, replace or abolish the Lords without their consent has a few undesirable effects, as noted by Bradley when he cited the recommendations of the 2000 Royal Commission on the reformation of the House of Lords. More specifically, the Royal Commission suggested that the Parliament Acts 1911-49 should be amended to remove the possibility that they be relied on to make further changes to the status of the House of Lord without their consent. Bradley quotes the commission’s reasoning for this recommendation as being that any further detrimental change to the second chamber ‘would risk leaving it with the insufficient powers to carry out its overall role effectively’.

Can Judicial Review be removed by the 1949 Parliament Acts?

As the practical implementer of the Rule of Law, the judicial review process is paramount to the principles of the UK constitution. However, Parliament’s supremacy means that it has legislative supremacy to make even ‘unconstitutional’ laws. Parliamentary sovereignty means that the Parliament will prevail over the Rule of Law and is immune from judicial review. Thus technically, the Rule of Law, and thereby judicial review, can be expressly rejected by Parliament.

The removal of a judicial review has wide significance as it directly affects fundamental rights of citizens and the enforcement of the Human Rights Act 1998.  However, as Lord Hoffman stated in the case of R v. SSHD ex parte Simms, legally the Westminster Parliament has the ability to introduce legislation that violates human rights or is incompatible with Convention rights. If this view is followed, the courts would indeed need to give effect to an Act of Parliament passed under the Parliament Act 1949 given that it clearly intends to abolish judicial review.  

While the orthodox common law concept of Parliamentary Sovereignty gives Parliament the ability to pass almost any law it wishes, judges have presented a contrary view, proposing that the absolute authority of parliament proposed by Dicey has ceased to exist.  As early as the Dr. Bonham’s Case in 1610, the judicial view has been established that “the common law will control Acts of Parliament, and sometimes adjudging them completely void”. Lord Woolf in 1995 states that the Parliament is ultimately subject to the Rule of Law and that “legislation that undermined in a fundamental way the Rule of Law on which the unwritten constitution depends” will be rejected in courts.  More recently, a similar point is made by Lord Steyn and Lord Hope in the Jackson case.

Regarding an attempt to abolish judicial review through legislation, Lord Steyn said: 

“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

This follows that if Parliament tried to create legislation under the Parliament Acts to abolish judicial review, courts may refuse to give effect to it on the grounds that Parliament is not to violate constitutional principles.

An ability for the courts to declare enacted laws as invalid equates to qualification of Parliament’s sovereignty. Under this view, this sovereignty’s practical reach may not extend to decisions like making laws to remove judicial review. The source and validity of Parliament’s authority is not formally laid down in legislation and is only accumulated over time. Similarly, this authoritative legitimacy, being based in moral claim, can also be depleted in changing social situations.