by Yuan Yi Zhu
Monday, 6
December 2021

Parliament can — and should — override judges

The UK legislature is, after all, the ultimate repository of sovereignty
by Yuan Yi Zhu
Credit: Getty

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.

Join the discussion

  • 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 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?”

  • 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.

  • To get involved in the discussion and stay up to date, become a registered user.

    It's simple, quick and free.

    Sign me up