The constitution of the United Kingdom is fundamentally political. Perhaps this view advocated by Griffith is more compelling when considering the nature of the constitution of the United Kingdom. This is particularly upheld by the traditional Diceyan view which proposes that Parliament has the authority to “make or unmake any law whatever” . Consequently, illustrating that the courts remain secondary to the power of Parliament. However, in more recent years, evident legal advancements have instigated a wider debate as to whether the courts will eventually possess the authority to override the status of parliament. Developments such as the Human Rights Act 1998, the Constitutional Reform Act 2005 and the introduction of the UK Supreme Court have accelerated the rate at which the constitution of the UK has significantly moved towards a legal constitution . Thus, to some extent, undermining the premise that parliamentary sovereignty is a principle that cannot be shaken. Furthermore, through judicial review, evident challenges to the principle of parliamentary sovereignty have been identified, giving rise to the authority of the courts and highlighting a prominent transition towards a legal constitution. Nonetheless, while limitations to a solely political constitution exist, to propose that over the three decades there has been a complete move towards a legal constitution is a view that can be challenged. Other attempts at suggesting that the UK’s constitution may be better described as ‘mixed’ and not “premised on any one constitutional model” does hold weight, but only strengthens the argument further that the constitution is primarily political as opposed to legal. More so, even though the progression towards a legal constitution has highlighted a need for a diverse judiciary, the assumption that it is an ‘overwhelming need’ is exaggerative. Thus, this essay will examine how the position of Parliament overrides the status of the courts concluding that the constitution of the United Kingdom is political. This essay will also analyse, how the need for a diverse judiciary is evident, but should not stray from the focal point of the judiciary: to administer justice.
Even though in its entirety, the constitution of the UK is evidently political, it must be argued that recent constitutional arrangements have demonstrated that to some extent the constitution of the UK is progressively becoming legal. Through the introduction of the Human Rights Act 1998 which became foregrounded by the ECHR in UK law , the traditional Diceyean view of parliamentary sovereignty has become scrutinised and its absolute power has been greatly challenged. The ECHR established “fundamental rights” which were to be observed in all circumstances and only debated upon in limited circumstances. The introduction of these rights established the power of the HRA which asserted that “primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. The notion that parliament has “the right to make or unmake any law whatever” where “no person or body is recognised… as having a right to override…the legislation of parliament” is now contingent on the premise that it must be read with the rights of the ECHR. Therefore, showcasing the wider debate that the courts have now gained more authority as parliament are bound to create legislation that aligns with the rights of the ECHR, alluding to a progressively legal constitution.
Where Acts of Parliament are considered to be incompatible with the conventions of the ECHR, the courts then have the power to issue declarations of incompatibility . This conveys not only that the positioning of a solely political constitution has been challenged but that the political constitution is better inferred as operating in ‘the shadow of law’. A pivotal example that highlights the limitations of parliamentary sovereignty and a solely political constitution is the Jackson case. Fundamentally, this case was significant because it illustrated that parliamentary sovereignty though being superior over the courts, could be challenged. Lord Hope asserts that “parliamentary sovereignty is no longer, if it ever was, absolute” . Through this he acknowledges that where once the role of the court was to observe Acts of Parliament as the most superior form of law in a strictly limited manner, the courts are now more flexible in their approach of utilising and applying legislation. As a result, the concept of parliamentary sovereignty has become regarded as simply “out of place” as proposed by Lord Steyn. Therefore, this seems to establish the notion that Britain has a legal constitution as the courts exert themselves above the principle of parliamentary sovereignty through statutory interpretation.
On the other hand, both the arguments of Lord Hope and Lord Steyn seem to attach too much significance to the idea that parliamentary sovereignty is in its entirety flawed with no concrete grounding. This alludes to the idea parliamentary sovereignty can be overruled and replaced by the presence of the courts. However, the courts are simply not equal to the status of parliament because the power of the courts is not binding. Griffith argues that “law is not and cannot be a substitute for politics” . Ultimately, from this, it can be understood that the constitution of the UK is strictly political as Parliament has no restrictions on its superiority. The courts cannot strike down an Act of Parliament showing that a political constitution remains more dominant than a legal constitution. This detracts from the idea that the constitution may best fit the idea of a ‘mixed constitution’ or as Walter Bagehot stated in 1867 that constitution of the UK ” the nearly complete fusion, of the executive and legislative powers”. This is because in limiting the power of the courts, the political stance of the constitution is reaffirmed, suggesting that it is more political as opposed to ‘a legal versus a political constitution’ .
Even though the process of judicial review and a declaration of incompatibility can be used as evidence as the constitution of the UK progressing towards a legal, the extent to this is limited. This is because Parliament are only encouraged to amend or repeal their provision, but they have the discretion whether to act upon this and this cannot be challenged. A credible example of this can be highlighted in the Belmarsh case where the detention of suspected international terrorists was considered incompatible with Article 5 and Article 14 of the Human Rights Act 1998. Despite the fact the courts gained power in being able to debate the nature of Acts of Parliament, Parliament still has the discretion to amend or repeal the legislation. In Parliament choosing to refrain from amending or repealing the Act, Parliament remained the superior authority reaffirming that the constitution is ultimately political. In similar cases such as Hirst which dealt with the prisoner’s right to vote, this conveys that judicial review and declarations of incompatibility are merely persuasive and not binding on the discretion of Parliament. Consequently, the progression towards a legal constitution, though clearly evidenced in recent years is ultimately limited by the timeless traditional sovereignty of Parliament.
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