The United Kingdom’s constitution, because it is unwritten, reliesmainly on two constitutional principles: parliamentary sovereignty and the ruleof law. There is however what appears to be a “tension” between those two.1On the one hand, orthodox legal theory has always said that courts in theUnited Kingdom are subordinate to the Parliament, which is said to besovereign. As illustrated by Dicey’squote, “Parliament has,under the English constitution, the right to make or unmake any law whatever;and, further, no person or body is recognised by the law of England as having aright to override or set aside the legislation of Parliament”2. As a consequence, courts have no power whatsoever to review anddeclare statutes passed by the Parliament invalid. They simply have to applythem. There is however a “new view” onparliament supremacy held notably by Lord Jennings, Marshall and Heustonaccording to which it is rather the courts who are “the ultimate arbiters ofwhat the law is in a given society”3,and not the Parliament.
On the other hand, the rule of law requires “atransparent legal system, the main components of which are a clear set of lawsthat are freely and easily accessible to all, strong enforcement structures,and an independent judiciary to protect citizens against the arbitrary use ofpower by the state, individuals or any other organization.” Are the courts nolonger subordinate from the Parliament or is the latter still sovereign in theUK? How have their gained more independence? The most obvious way in which thecourts in the UK have developed their role was through the use of the mischiefrule, also called the purposiveapproach. This statutory interpretation is one of the four which exist withthe literal, the golden and the ‘unified common approach’.4 Introduced in Heydon’s Case5, it asks judges to go through a 4 question-stage process andconsider firstly what was the common law before the making of the act, secondlywhat was the mischief and defect for which the common law did not provide,followed by what was the remedy Parliament passed to cure the mischief tofinish with what was the true reason for the remedy. Herewith, in Corkery v Carpenter6, the defendant was found drunk while riding his bicycle andsentenced to one month’s imprisonment under section 12 of the Licensing Act18727. However, this section made it an offence to be drunk while incharge of a ‘carriage’ on the highway.
There was no actual refence to bicycles.It was nevertheless held by the King’s Bench that the act included bicycleswhen read according to the purposiveapproach as “a bicycle is a carriage … because it carries”8. Thus even though this approach allows courts read legislationaccording to what the Parliament initially intended, it also underminesParliament’s supremacy as it gives to a certain extent judges a law-makingrole. Lord Denning, who often use the mischiefrule because it allowed him to bringforward his own view of justice and morality underlined in the judgement of Magor and St Mellons DC v Newport BoroughCouncil9 that “judges sit here tofind out the intention of Parliament and carry it out and they do this betterby filling in the gaps and making sense of the enactment”. Moreover, over the years, the Parliament itself has enacted numberof laws meant to limit its sovereignty.10 Among them, the decision of the UK topass the European Communities Act 197211 which automatically incorporated ‘enforceable Community rights’into national law. “It ensures that some types of EU legislation – includingtreaty obligations and regulations – have direct effect in the UK’s legalsystem without the UK Parliament having to pass any further legislation.
“12 This was necessary as the UK is a dualist state. Monist anddualist systems of law have two different visions on the relations betweennational and international law. One the one hand, in monist systems of law(such as in France), international laws are immediately enforced and applied innational courts without the need for national legislation to give effect tothem. On the other hand, in dualist states, international law cannot beenforced if they’re not translated in national law. Furthermore, even though inthe UK, the Parliament is sovereign, when talking about the concept of’supremacy’ in regards to EU law, EU law overrides the British Parliament(where EU law is applicable) and, more generally, it overrides national law (incase of inconsistency).
Accordingly, when an Act of Parliament and a EU lawseem to conflict, the court will always try to read the Act in accordance withthe EU law. Secondly, the Human Rights Act 199813 was another measure which “renewedfocus on the independence of the judiciary”.14 Its aim was to incorporate into UKlaw the rights contained in the European Convention on Human Rights,”including article 6, which recognizes the right to a hair trial”.15 Sorely needed, this act also allowedBritish citizens to argue for their human rights in British courts directly,thus saving money and time. Before that, in order to go to Strasbourg, they hadto exhaust all domestic remedies first.
Composed of 22 sections, the mostsignificative are section 3 and 4. The former gives more power to thejudiciary. Indeed, under section 3, the courts are required to interpretand give effect to statutes in way that is compatible with convention rights sofar as it is possible to do so. This is in addition to the normal purposiveapproach to interpretation. Furthermore, the courts’ interpretation of astatute under s.
3 does not need to provide an interpretation that is consistentwith the intention of Parliament when it enacted the statute as seen in Ghaidan v Godin-Mendoza16. A homosexual couple was livingtogether until the defendant’s partner died. The landlord subsequently broughtproceedings claiming possession of the flat under the Rent Act 1977. Eventhough the word ‘spouse’ described “a personliving with the original tenant as his or her wife or husband”17, it would have beendiscriminatory and against the Human Rights Act to apply that definition toheterosexuals couples only. Hence, the courts could give a statute a different meaning to thatoriginally intended by Parliament. Finally, the decision to establish aUK supreme court was the latest law enhancing the courts’ independence from theParliament18.
In 2005, the Constitutional ReformAct was voted but it wasn’t until October 2009 that it fully took effect, endingthe House of Lords function as the UK’s final court of appeal in all civil andcriminal matters with the exceptions of ‘devolution issues’19. The creation of this new Supremecourt was mainly trying to achieve a clearer separation of powers between thejudicial and the legislative branch. The House of Lords, because it was locatedin the Palace of Westminster (commonly known as the Houses of Parliament),”gave the strong impression that the apex of the constitutional system wascharacterised not by a separation, but by a fusion, of power”. Now, the newSupreme court is independent from both the Parliament and the government, notthanks to unwritten conventions, but because of laws. This changes reflect thegrowing emphasis of the last few years on “more legal, formal notions ofconstitutionalism”20.
Furthermore, the Constitutional reform Act 200521 also reformed the office of Lord Chancellor “who – until theConstitutional Reform Act 2005 came fully into force – straddled all three ofthe traditional roles of government. As a member and Speaker of the secondchamber of Parliament, a member of the Cabinet and the head of the judiciary(as well as a sitting member of the Appellate Committee of the House of Lords)the Lord Chancellor exemplified the English indifference to the strictprinciple of the separation of powers as derived from Montesquieu.”22 It was in his treatise on political theory, The Spirits of Laws, that the ‘separation of powers’ as we know ittoday was first introduced. Back then, it was mainly intended to guard againsttyranny and oppression, as well as to preserve liberty.
Today on the otherhand, it is more often suggested as a way to maintain a system of checks andbalances necessary for a good government. 23 By reforming the Lord Chancellor’s office and limiting hisfunctions, “transferring their judicial functions to the President of theCourts of England and Wales – a new title given to the Lord Chief Justice”24, it was consequently hoped that appeals would no longer besubjected to political bias but on the contrary be fairer and in conformity ofarticle 6 of the HRA which guards the right to a fair trial. That beingsaid, is it accurate to go as far as to say that courts in the UK have acquired the confidence to take a role similar to that ofconstitutional courts elsewhere? It would be a gross exaggeration.
Constitutional courts are the highest courts when it comes to theinterpretation, protection and enforcement of the Constitution. “They dealexclusively with constitutional matters – those cases that raise questionsabout the application or interpretation of the Constitution.”25 Indeed,constitutional courts such as the French Conseil Constitutionnel26 or the German Federal ConstitutionalCourt27 can strike down legislation which isjudged unconstitutional.
As of today, that is something the courts in the UKare still unable to do. Primary legislation cannot be judicially reviewed. Theclosest they have ever come to striking down legislation would be through theuse of declarations of incompatibility, incorporated in section 4 of the HRA.However, it must only be used when legislation is inconsistent with theConvention rights, not when it is inconsistent with the UK constitution andsecondly, declarations of incompatibility remain political above all as theyare not binding. Moreover, all those measures mentioned above could easily berepealed.
The only reason why EU law has effectin the UK and prevails over national law is that Parliament permits it. TheUnited Kingdom can at any given moment decide to revoke the 1972 EuropeanCommunities Act if it wishes to put an end to European laws’ prevalence. As amatter of fact, it will. After Brexit, a Repeal Bill was introduced, designedto, as the name suggests, repeal the European Communities Act.
EU laws willhowever be brought onto the UK books to make for a smooth transition.28 Moreover, the Parliament can also make the choice to make itunequivocally clear that it wishes to deviate from EU law. Likewise, the Parliament could very well decide to repeal theHuman Rights Act. This is of course all theoretical since this measure, iftaken, will probably be met with public outrage. Nevertheless, it is notoutside of the Parliament’s powers and jurisdiction to do so. To finish,while the main aim of the Constitutional Reform Act 2005 was to “uphold theindependence of the judiciary”, there was only real little change between theSupreme Court and the Appellate Committee of the House of Lords. The changeswrought by the creation of the former were largely “cosmetic”29 and destinedto overturn the suspicious and distrustful public opinion, enhance the credibility of thejudicial system in the eyes of citizens and “carry in their eyes a badge ofindependence and neutrality”30.
This new court was above all meantto be “a potent symbol of the allegiance of the UK to the rule of law”.31 But if truthbe told, in spite of a large scale impression of a “fusion of powers”,especially after Pinochet No. 1,there was no real endangerment of judiciary independence. Indeed, “it need not be the case that thisindependence has, in fact, been compromised; however, the perception ofinadequate separation exists.
“32It would thus be wrong to confidently andeffectively say that courts in the UK no longer are subordinate to theParliament and have acquired the confidence to take a rolesimilar to that of constitutional courts elsewhere. 1 James Hyre, “The United Kingdom’s Declaration of JudicialIndependence: Creating a Supreme Court to Secure Individual Rights Under theHuman Rights Act of 1998”, (2004) 73 FLR. 423, 4242 A.V.Dicey, ‘Introduction to the Study of the Law of the Constitution’ (10th ed.1959) 23-32, 39-703 R.
Elliot ‘Rethinking Manner and Form: From ParliamentarySovereignty to Constitutional Values’, (1991) 29.2 OHLJ 215-2514 MartinPartington, Introduction to the Englishlegal system (first published 2005, Oxford University Press 2017) 565 1584 EWHC Exch J366 1951 1 KB 1027 Licensing Act 18728 Lord Goddard CJ in 1951 1 KB 1029 1952 AC 189 10 UK Parliament “Parliamentarysovereignty” uk/explainers/1972-european-communities-act>accessed 21 January 201813 Human Rights Act 199814 Hyre (n 1)42515 Ibid16 2004 UKHL 3017 Rent Act1977 s2(a)18 UK Parliament (n 10)19 Mark Elliott and Robert Thomas, Public Law (Oxford University Press, 2eed.) 25420 Ibid 25521 Constitutional Reform Act 200522 C.J.S. Knight, “Bi-polarsovereignty restated” (July 2009) CJL 361, 36323 Richard Benwell and Oonagh Gay,”The Separation of Powers” (15 August) House of Commons 124 Courts and tribunals Judiciary, “Constitutional Reform”,
uk/explainers/1972-european-communities-act>accessed 21 January 201813 Human Rights Act 199814 Hyre (n 1)42515 Ibid16 2004 UKHL 3017 Rent Act1977 s2(a)18 UK Parliament (n 10)19 Mark Elliott and Robert Thomas, Public Law (Oxford University Press, 2eed.) 25420 Ibid 25521 Constitutional Reform Act 200522 C.J.S.
Knight, “Bi-polarsovereignty restated” (July 2009) CJL 361, 36323 Richard Benwell and Oonagh Gay,”The Separation of Powers” (15 August) House of Commons 124 Courts and tribunals Judiciary, “Constitutional Reform”,