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.