December 6, 2021 - 5:00pm
Imagine this frightening scenario. An unpopular minority government, which has lost the popular vote at the most recent general election, legislates to overturn a unanimous decision by the United Kingdom’s highest courts. The reason? To protect a practice which one of the country’s most senior judges described as “unconstitutional and illegal”.
But had H. H. Asquith’s minority Liberal government not reversed the unanimous decision of the law lords in Amalgamated Society of Railway Servants v Osborne a century ago, the modern Labour Party, whose existence depended on practices which the courts found to be illegal, might have been stillborn. Organised labour’s rejection of revolution in favour of electoral politics, one of the key decisions of modern British history, might never have happened. Arguably, the decision to override the judges saved Britain from violent revolution.
Many would do well to remember the Osborne case before condemning the government’s plans, first reported in The Times, to introduce legislation to reverse court decisions with which it disagreed (and not, as the alarmist headline suggested, to give the power to ministers to reverse courts by executive fiat alone).
Of course, there is no talk of violent revolution this time round, but the principle is worth reasserting. Courts should decide the cases before them without fear or favour, as the judges are sworn to do. But it doesn’t mean that Parliament, the ultimate repository of sovereignty, is not entitled to change the law in response to their decisions. And as the Osborne case shows, sometimes it is imperative for Parliament to do so.
This is not, as some would have it, “democratic backsliding”, but the very essence of democracy itself. We have long ago abandoned the ancient superstitions which held that the law existed in the ether, patiently awaiting discovery by judicial reasoning. In the British constitution, judicial decisions have always been subject to legislative override. This is true whether one is talking about judge-made common law or about the judicial interpretations of legislation enacted by Parliament.
This is something judges have always acknowledged. Indeed, they sometimes ask Parliament to overrule their own precedents which they feel are too well-established for them to disturb. And critics of critics of judicial power (Policy Exchange’s Judicial Power Project being the most prominent of the latter group) like to point out that Parliament can always overrule the judges if it wants to.
And yet attempts to do so are inevitably greeted with howls of outrage. For some, judicial overreach is not a problem because Parliament can overrule the courts, but Parliament should also never do so. This is not a coherent position. A power which can never be exercised properly is no power at all.
This doesn’t mean that a government with a legislative majority should try to overturn by legislation every case it loses. Much will turn on the specifics of which decisions the government wants Parliament to overrule. But ultimately, it behoves our elected representatives to say so if they think the courts have gotten something wrong, or if they take a different view from the courts as to what the law ought to be. In so doing, they would be reaffirming the principle of parliamentary sovereignty, “the fundamental legal rule of our constitution”. Democratic self-government demands nothing less.
Yuan Yi Zhu is an assistant professor at Leiden University and a research fellow of Harris Manchester College, Oxford.
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SubscribeUseful context, but ultimately no judgment can bind Parliament any more than Parliament can bind future Parliaments. So Parliament is already capable of legislating in response to a judicial ruling.
Quite why a specific law is required to ratify Parliament’s powers to do so, is a little unclear. This suggests that the proposed legislation would grant that power to Government, which is a very different proposition.
I don’t think any government should be in the habit of overturning judicial rulings on the basis that the current minister disagrees. If the minister thinks Parliament would share their disagreement, there is a clear route for them to legislate – but they still need to take that route.
The justice system should apply the laws that Parliament creates, and governments should be subject to their rulings, not just opting out when they lose. When a government has a big majority, that might seem like a bit of sophistry – but it ensures that all MPs have a chance to have their say, just as the public can have their say about the MPs re-election prospects.
Is it judicial interpretation that is in the sights of the current government though?
Take the example of deportation of foreign criminals. The majority of the public would support their removal, but human rights lawyers are successful in thwarting this . To add insult to injury, I suspect that the taxpayer is paying their fees, along with the prison costs and support for individuals the Uk would be better off without.
The principle of deportation as a punishment for certain crimes is not, believe it or not, that much in dispute. However there is a principle in justice that punishments should be proportionate and not impact on others.
The difficulty is the Home Offce. It has always been dysfunctional and it fails to liase between the prison section and the rest. When deportation takes place straight after the prison sentence it is rarely controversial, however it has often been the case that deportation didn’t take place because the Prison Service didn’t tell the rest and so a prisoner would be released, get on with life, start a family etc. In that case deportation is disproportionate because it will affect more than just the convicted person.
Controlling immigration is not simple, by and large it requires expenditure to do so. Governments therefore like to go for easy targets, prisoners are, like the Windrush victims relatively easy targets and satisfy the appetite in some quarters for seeing dark-skinned people bundled kicking and shouting onto a plane. The Courts have a right and duty to intervene here.
Rather than grandstanding over “left-wing human rights lawyers” Patel should focus on getting her department to do its job properly.
“there is a principle in justice that punishments should be proportionate”: it strikes me what is “proportionate” is currently a matter of opinion for judges which is what the legal establishment wanted it and knew it would be but should not be.
Well of course it is, it is a judgement to be made considering all the pros and cons of the specific case measured against relevant legislation and guidelines. That is what “judgement” is and what judges do.
The British people have been shocking sober Americans for many years now. This article highlights the less egregious of the two self-destructive and stupid ideas you decided to import.
First, of course, was a race problem. Having none and viewing the disastrous consequences of one on your televisions during the 1960s, you British decided, “Oh, that looks like fun” and opened your country to millions from unassimilable races, all in the name of the Commonwealth, the degraded form of empire you conjured out of fantasy.
Then, decades after seeing the cultural divide and lawlessness brought to the US by unelected elites with untethered views of reality “ruling” from a Supreme Court, you British figured that you too needed something superior to representative democracy to make the hard decisions for the country. Suddenly there was a Supreme Judicial Court in the UK that a Parliament which once beheaded kings deferred to…with the predictable results alluded to in this article.
Race and judicial supremacy were present at the creation of America. The less each was reined in, the worse the nation has fared. But there’s no escaping them.
Britain, on the other hand, adopted these disasters voluntarily, leading me to wonder, “What on earth were you thinking?”
Depending on whether you prefer to blame the influence of US style federalism or the EU’s fervour for sovereignty dilution, you could add devolution to this list of self-inflicted wounds. Not sure how I would categorise the Fixed-term Parliaments Act, but I feel like it also belongs on the list.
Parliamentary sovereignty is fine, if Government is properly doing its job of preventing bad things from happening (its remit used to be almost entirely negative and confined to review and consolidation, with only cautious initiatives). Today however Government is the preferred instrument of progressive dreams and schemes (and, of course, the opposition to same), and this makes its acquired sovereignty more of a cultural problem.
The doctrine of the separation of powers and judicial review of administrative decisions are two of the United Kingdom’s greatest gifts to common law jurisdictions. Both have been under sustained attack from the legislature which arrogates to itself, in the person of ministers, wider and deeper discretion and executive power, much of it exercised without judicial oversight, such as laws concerning anti-terrorism and pandemic responses.
Others, such as the right to silence and judicial discretion in sentencing, have been hollowed out by the legislature a long time ago.
Legislation only can be found unlawful by the courts if it infringes the constitution, or a bill of rights or human rights legislation (if you have them).
In this environment, and at a time when the legislature shows no sign of relinquishing its “emergency” and “temporary” powers, I would not like it armed with another easy means by which it can insulate itself from the decisions of the courts. The last paragraph of the article admirably addresses this.
Having said that, the last group I want monetising my rights are my learned friends.
Better government, accountable to an informed electorate seems the only solution.
Yeah. Good one, mate.
“We have long ago abandoned the ancient superstitions which held that the law existed in the ether, patiently awaiting discovery by judicial reasoning.”
Speak for yourself. This is not a superstition but recognition of the fact that the existence of law is presupposed in both contemplating the project of humans living together in societies and in trying to make such a project work in practical terms. It is therefore not even an issue specific to the UK or the advanced nations now; it is instead a reality that underpins all human societies everywhere and at all times to one degree or another.
In saying this I am not rejecting the whole article: there is of course such a thing as too much political power even in democracies, and there is also such a thing as judicial activism in which judges trespass upon the proper business of elected representatives, so there very obviously must be mechanisms by which both types of fault are prevented or rectified. But the above remark is simplistic and cannot form the basis for justifying the power of Parliament to overrrule the courts, and most certainly not upon matters where populist pressure upon elected representatives would produce perverse outcomes.
The mechanism that draws the line separating what judges do and what legislators do is therefore partly dependent on recognition that natural law does exist and that it is there to be discovered when required by judges who are both guided by the assumption of the law’s existence and limited in their own interpretation by it.
I noticed that too! It’s a rather incongruous injection of critical theory into an otherwise orthodox account of established constitutional principles.
A very helpful reminder at this time when strong government is needed but legislatures around the world seem to be missing in action. It is especially interesting that this was written by a Canadian legal scholar given the contests that arise in that country over the use of the legislative override under section 33 of its Charter.
The legal establishment have spent decades influencing our laws to conform with their unrepresentative views to the detriment of parliamentary democracy.
This reminds me of a hypothetical situation that I heard raised a long time ago: If Parliament passed a law condemning the Queen to death, there would be a constitutional crisis if the Queen refused to sign it.
Now what happens if Parliament changes the law to prevent judges being lawmakers, and the Supreme Court rules the decision to be unconstitutional?
“We have long ago abandoned the ancient superstitions which held that the law existed in the ether, patiently awaiting discovery by judicial reasoning.”
For whom are you speaking? Can anyone prove that all superstitions are wrong (or even bad)?
I makes no difference whether “a government with a legislative majority should try to overturn every case it loses”. What matters is whether it can to do so, unimpeded by anyone else. And apparently the government is now taking the power to do just that, without having to take the trouble to pass legislation through parliament first in each case. As we saw with Brexit, a government with a legislative majority can and will act in open contravention of the will of parliament, if that is politically expedient. The principle of the government overruling the courts sounds more appropriate to the People’s Republic of China than to the UK.
Surely a government with a legislative majority cannot govern against the will of Parliament, almost by definition. (I set aside here the issue of the perhaps too frequently resorted to secondary legislation approved by ministers). That example you give, if I read you right, is a bit bizarre. The first year of Boris Johnson’s government had no working majority and could achieve little. There was nothing illegal about Parliament then ‘taking control’, although its abject failure to agree on any specific form of Brexit rather showed why we need an effective Executive as well as a Legislature.
The much bigger issue I see, is the Courts issuing unpopular rulings on a variety of subjects, often based on activist interpretations of Human Rights Law. One key example is ‘privacy’ where no British Parliament has ever considered and passed an Act to ensure such ‘rights’. This interpretation after the European model, overwhelmingly benefits rich and wealthy people who wish to selectively curate their public profiles, contrary to the principle of free speech and truthful comment.
Not so sure. Remember trying to prorogue parliament, so it would not be in session and able to decide for Brexit, perhaps the most monumental decision since 1945? There was no majority for toppling Johnson. But if Johnson was not afraid of parliament taking the wrong decision, he would not have need to prevent them from voting.
As for judicial activism, you may well have a point – but surely the remedy is to change the law, not to give government the right to ignore judicial rulings?