Judicial Power and the United Kingdom's Changing Constitution

By Elliott, Mark | University of Queensland Law Journal, December 2017 | Go to article overview

Judicial Power and the United Kingdom's Changing Constitution


Elliott, Mark, University of Queensland Law Journal


I INTRODUCTION

The phrase 'judicial power' is an evocative one whose beauty--or danger--is to a large extent in the eye of the beholder. For some, the possession by the judicial branch of powers with real bite, up to and including powers of constitutional review, is a precondition of liberal democracy. For others, however, 'judicial power' conjures up something quite different--including the potential of curial authority to threaten democracy, and a corresponding imperative that such authority be approached with caution and rigorously cabined. Of course, the difficult questions, as always, arise other than at the extremes, where judges would respectively lack any power to uphold constitutional standards or, conversely, be free to run amok. The hard question is thus one of degree. Judicial power, in any rule of law-based system, is a given. But how much is too much?

There are many ways in which that question can be, and has been, approached. One possibility involves using constitutional or political theory as the predominant lens, with the aim of developing a model of democracy that prescribes, among other things, the legitimate extent and nature of the judicial role. In this article, however, I take a different, less abstract approach, by examining the question of judicial power within a particular temporal and jurisdictional context--namely, the United Kingdom today, where a recent and prominent strand of opinion holds that the judiciary is guilty of overreach, and that 'judicial power' is therefore something that needs not only to be watched, but to be scaled back. (1)

In this paper, I take the unease that animates that school of thought and use it as a starting-point. I do not, however, set out to prove that those who express such sentiments are right or wrong. Rather, I seek to make sense of how the UK has arrived at the position in which it currently finds itself and consider in general terms how--given the particularities of the UK's constitutional system--one might go about identifying the proper limits of judicial power. I therefore begin by addressing the key constitutional parameters by reference to which the notions of judicial power and overreach have traditionally been calibrated. I then trace the many senses in which the exercise of judicial power has grown, and consider the forces that have brought such developments about. Against that background, I contend that while the evolution of the judicial role evidences a reconceptualization, as distinct from the repudiation, of relevant fundamental constitutional principles, it should not be assumed that the UK constitution's famous flexibility is limitless. To that end, I conclude by examining the recent and controversial Supreme Court judgments in Evans (2) and Miller (3) in which, in different ways, the proper limits of judicial power have been tested.

II TRADITIONAL PARAMETERS

The setting of institutional parameters is a core function of any 'constitution' properly so-called. In seeking to discern the location of such parameters, the constitutional text is, in most systems, the natural starting point, even if it can serve as no more than a point of departure. In the UK, however, the identification of relevant parameters must necessarily proceed in a different way. That is so most obviously because of the absence of any constitutional text per se. But there is the further (and related) point that the doctrine of parliamentary sovereignty means that dividing lines that trace the respective provinces of different constitutional actors are mutable and implicit to an extent that is likely to be unfamiliar to those accustomed to the relative rigidity and formality of textual constitutionalism. Notions of constitutional propriety are thus informed in the UK to a peculiar degree by accretions of understanding and consensus born of institutional practice and interaction. And if institutional practice changes, the question arises of whether that evidences a challenge to or a shift in the prevailing consensus. …

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