The judicial role in the constitution

The role of the courts in any constitutional set up is controversial. The strongest role for the court is one of the ultimate interpreter of the constitution, a role which for instance was famously adopted in the USA by the Supreme Court in Marsbury v Madison. Other courts have inferred the equivalent authority, as with the ECJ in the case of Costa v ENEL, in its authority over interpreting the Treaty of the EU. Of the many factors that led to the result of the referendum on membership of the EU, resistance to this judicial claim of authority was one element.

There is a considerable body of literature on the legitimacy of a court’s role in constitutional review (eg Dyevre, ‘Technocracy and distrust: Revisiting the rationale for constitutional review’, International Journal of Constitutional Law (2015) 13(1) 30-60), which does not easily cross over to the UK given the absence of a codified constitution. This has not stopped the role of the courts in the UK constitution being an area of considerable debate, one which is dominated by a parallel debate as to the meaning of the rule of law. In public law terms the debate can be conducted on a number of levels. 

 

Theoretical considerations

It is often argued that the traditional UK constitution should be understood as a political constitution, with the implication of the doctrine of Parliamentary sovereignty being that the courts should only possess an interpretive power over legislation. An awkward feature of this account, however, is that this rule of law power is embedded in the common law, as opposed to being conferred by statute. 

The lack of statutory or constitutional prescription for the role of the courts allows space for a number of areas of contention. One line of dispute connects to the source of authority of the courts. It can be argued that the courts owe their authority to the acquiescence of Parliament and the Executive in the arrangement, see most specifically the right to judicial review in the Senior Courts Act 1981, s.31. Others argue that this account amounts to a legal fiction, and that a better account is that the role of the courts is better understood as a feature of common law constitutionalism in which legal accountability is an axiomatic solution to the need to control the exercise of public power (eg T.R.S. Allan, ‘In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law’ (2009) 22 CJLJ 187). There is an extensive body of literature that attempts to bridge the two accounts.

 

Who interprets the constitution?

One answer to this question, which follows from Dicey’s account of the unwritten UK constitution, is that as there is no codified constitution there is no role for the courts to interpret constitutional matters. However, in a series of cases the courts in the UK have invoked ‘constitutional norms’ to ground their decisions. For instance, obiter statements were made to this effect in Jackson v AG when the House of Lords suggested that there might be certain decision of Parliament (such as removing the right to judicial review) that the court could override. In Factortame II, the House of Lords did set aside an Act of Parliament, claiming the authority to do so the European Communities Act 1972. In Thorburn, the High Court ruled that certain statutes had a constitutional status that could not be overruled through implied repeal. Most recently, in Supreme Court cases, such as R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, has seen the idea of constitutional norms being developed by the courts (see Elliott). This same logic has seen the Supreme Court move to found a number of decisions in common law rights, as opposed to relying just upon the Human Rights Act (A v BBC [2014] UKSC 25). (For more detail on this see, Mark Elliott,“Beyond the European Convention: Human Rights and the Common Law” (2015) Current Legal Problems 1; and
"Constitutional Legislation, European Union Law and the Nature of the United Kingdom's Contemporary Constitution" (2014) European Constitutional Law Review)

For some, this incremental evolution of the common law has led to a situation in which the judiciary have begun to risk overreaching their power. One author has claimed that there is a legitimacy crisis in judicial review. A powerful example of the different perspectives on the role of the courts can be seen in the case of Evans v AG, both in terms of the judgments in the case and the academic commentary that followed (see R. Ekins and C. Forsyth, Judging the Public Interest: The Rule of Law vs The Rule of Courts (London: Policy Exchange, 2015); M. Elliott, “A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution’s Relational Architecture” [2015] P.L. 539 and T. Allan, ‘Law, Democracy and Constitutionalism: Reflections on Evans v Attorney General’ LQR [2016] 38-61).  

The court’s approach to this legal dilemma will be one of the undercurrents in the litigation on the process by which Article 50 is triggered.

 

What is the role of the courts in judicial review?

The banal answer is that the courts are there to test the legality of decisions of public authorities, this understanding has the support of statute in the Senior Court Act 1981, s.31. There is, however, no agreed definition of what legality amounts to, other than a broad spectrum of legal grounds as developed in the courts and analysed in legal textbooks.  In some countries the beginnings of an answer can be found in legislation (eg Administrative Decisions (Judicial Review) Act 1977 (Cth, Australia)), but in the UK this solution has long been proposed and resisted (Jones 2000). One of the reasons for not codifying the grounds of administrative law is disagreement as to what those grounds should amount to and the extent to which the judiciary should be entrusted with the power to quash decisions of public authorities (including elected bodies). Here three separate possible positions can be distinguished.

First, it can be claimed that the common law adequately restrains the activity of the judiciary through the device of legal doctrine. 

The critique of this position is that it endows the judiciary with an enormous discretionary power in any given case, particularly when the flexibility of the legal tests available to the judiciary is properly understood. This article by D. Williams, (‘The Case Law on Administrative Law’ 6 Trent L.J. 1 (1982)), for instance, provides a telling account of the uncertainty that existing legal doctrine generates. See also Jeff King, (“Institutional Approaches to Judicial Restraint” (2008) 28 OJLS 409-441), who has claimed that this discretionary ‘approach is by no means wild or unorthodox, it is probably the best description of how most courts operate.’

The risk with this position is that the judiciary possess the potential for overreach. There is an extensive range of scholarship that has sought to unpick this judicial practice, with many pointing out the capacity for the judiciary to employ the law to support different underlying elitist cultures (eg see the critical legal studies movement).

Second, in order to minimise the risk of judicial overreach, some argue for bright line rules that limit the occasions upon which the judiciary can legitimately intervene. The Wednesbury unreasonableness test, for instance, might be understood as an example of such a bright line rule. One might also argue that the courts should not seek to construct meaning to wide discretionary clauses where the public body concerned has been established by Parliament with strong independent or democratic authority (R. Kirkham, ‘JR55, Judicial Strategy and the Limits of Textual Reasoning’ Public Law (forthcoming, 2017)).

  

The difficulty with this approach, however, is that it under-explains the practice of the judiciary in the common law and the evolution of various grounds of good administration eg legitimate expectations, natural justice etc and the centuries old tradition of the court protecting civil liberties (eg Entick v Carrington (1765)). Political constitutional scholars such as Adam Tomkins, have attempted to defend the court’s role through an account based upon a strictly political constitution (eg Adam Tomkins, ‘The Role of the Courts in the Political Constitution’, 60 Univ. Tor. L.J. 1 (2010)) but the consistency of the approach has been subject to critique by scholars more comfortable with the notion of the courts possessing the power to evolve and manage incrementally legal doctrine (Paul Craig, ‘Political Constitutionalism and Judicial Review’, in Effective Judicial Review: A Cornerstone of Good Governance (Christopher Forsyth, Mark Elliott, Swati Jhaveri, Anne Scully-Hill & Michael Ramsden eds., 2010).

Third, without an agreed theoretical account as to the constitutional authority of the courts in judicial review, an alternative pragmatic approach is to agree upon the judiciary’s role in determining public law disputes but expect it to operate with restraint in managing that role (see Lord Irvine, “Activism and Restraint: Human Rights and the Interpretative Process” (1999) 10 K.C.L.J. 177; Lord Sumption, “Judicial and Political Decision-Making” [2011] J.R. 301). Here a number of arguments might be presented as to the necessity of adopting a trust / restraint approach to the judiciary’s role. For instance, whilst legal formalism might provide an attractive model for limiting judicial activity, in practice it will always fail to define the detail. The middle-ground, therefore, is to expect the judiciary to outline and work through its constraints, as with the test of deference.   

Further, there are ways of mitigating the power of the court. One example is to put in place a process by which Parliament and the courts might be said to enter into a dialogue, with the courts making a ruling of law which then requires Parliamentary intervention in order to both implement and detail how the law should be developed (eg F.F. Davis, ‘Parliamentary Supremacy and the Re-Invigoration of Institutional Dialogue in the UK’, Parliamentary Affairs (2013)), with the Human Rights Act, s.4 and s.10 being the best example of this. Finally, it might be argued that the courts operate in the permanent knowledge that the legislature can, and does, operate with the last say – ie through the passage of subsequent legislation to annul the long-term impact of any decision of the court.