Introduction
This essay explores the complex relationship between parliamentary sovereignty and judicial scrutiny within the UK constitutional framework. It addresses the central question of whether Parliament can legislate to remove or prevent judicial scrutiny, examining the mechanisms through which this might be achieved, the reasons motivating such actions, and the constraints or justifications for refraining from doing so. The discussion is rooted in the UK’s uncodified constitution, where parliamentary sovereignty traditionally holds a dominant position, yet is increasingly balanced by principles of the rule of law and judicial independence. The essay first outlines the theoretical and legal basis of parliamentary sovereignty, then analyses potential methods to limit judicial scrutiny, before considering the motivations and deterrents for such legislative action. Ultimately, it argues that while Parliament possesses the theoretical power to restrict judicial oversight, practical, political, and constitutional constraints often prevent or discourage such measures.
Parliamentary Sovereignty and Judicial Scrutiny in the UK Constitution
Parliamentary sovereignty, as articulated by A.V. Dicey, asserts that Parliament has the supreme legal authority to make or repeal any law, and no court can override its legislation (Dicey, 1885). This principle underpins the UK’s uncodified constitution, ensuring that Parliament remains the ultimate source of legal power. However, judicial scrutiny, enacted through judicial review, allows courts to examine the legality of governmental actions and, in some cases, the compatibility of legislation with fundamental rights, particularly under the Human Rights Act 1998 (HRA). While courts cannot strike down primary legislation, they can issue declarations of incompatibility under the HRA, urging Parliament to reconsider laws that breach the European Convention on Human Rights (ECHR).
The tension between these two pillars—parliamentary sovereignty and judicial oversight—raises the question of whether Parliament can legislatively curtail the judiciary’s role. Theoretically, given its sovereign status, Parliament can enact laws to limit judicial scrutiny by explicitly removing the courts’ jurisdiction over certain matters or by repealing protective legislation like the HRA. Yet, this power is not absolute in practice, as political, legal, and international considerations often impose significant limitations.
How Parliament Might Remove or Prevent Judicial Scrutiny
One primary method through which Parliament could restrict judicial scrutiny is by enacting legislation that explicitly ousts judicial review in specific areas. Such ‘ouster clauses’ attempt to prevent courts from reviewing decisions made by public bodies or government officials. Historically, attempts at comprehensive ouster clauses, such as in the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003, have faced significant legal and political resistance. Courts have often interpreted such clauses narrowly, invoking the rule of law to maintain their supervisory jurisdiction (Beatson et al., 2011). Nevertheless, a determined Parliament could, in theory, draft an unambiguous statute to exclude judicial oversight in targeted policy areas, such as immigration or national security.
Another approach could involve repealing or amending key legislation that enables judicial scrutiny, such as the HRA. By repealing this Act, Parliament could remove the courts’ ability to issue declarations of incompatibility, thereby limiting their influence over human rights issues. Proposals to replace the HRA with a British Bill of Rights have surfaced periodically, often driven by a desire to reduce judicial interference in politically sensitive areas (Ministry of Justice, 2022). Additionally, Parliament could amend the scope of judicial review itself, as seen in the Judicial Review and Courts Act 2022, which introduced measures to restrict certain remedies courts can grant, though not eliminating scrutiny entirely.
Finally, Parliament could legislate to alter the constitutional balance by asserting explicit control over areas traditionally subject to judicial oversight. For instance, it might define certain executive actions as non-justiciable, meaning courts cannot adjudicate on them, as attempted in debates over prorogation following the Supreme Court’s ruling in R (Miller) v The Prime Minister [2019] UKSC 41. Such legislative moves would, in theory, reassert parliamentary dominance over the judiciary.
Why Parliament Might Seek to Limit Judicial Scrutiny
The motivations for Parliament to curb judicial scrutiny often stem from political and practical considerations. Firstly, governments may perceive judicial review as an obstacle to policy implementation, particularly in contentious areas like immigration, welfare reform, or national security. For example, judicial rulings that delay or block deportations due to human rights concerns can frustrate executive aims, prompting calls for reduced judicial power (Ewing, 2010). Secondly, there is a broader ideological debate about the democratic legitimacy of unelected judges influencing policy decisions, with some arguing that judicial activism undermines the will of elected representatives. This perspective has gained traction in recent years, particularly post-Brexit, where sovereignty and ‘taking back control’ have become prominent political narratives.
Moreover, Parliament might act to protect its traditional supremacy in the wake of perceived judicial overreach. Cases such as the aforementioned Miller case, where the Supreme Court ruled the prorogation of Parliament unlawful, have intensified debates about the judiciary’s role in political matters. In response, governments may seek to legislate to reassert control and clarify boundaries, ensuring that political decisions remain within parliamentary, rather than judicial, purview.
Why Parliament Might Refrain from Limiting Judicial Scrutiny
Despite these motivations, several factors deter Parliament from removing or preventing judicial scrutiny. Primarily, the rule of law—a fundamental constitutional principle—requires that government actions remain subject to legal oversight to prevent abuses of power (Bingham, 2010). Curtailing judicial review risks undermining this principle, potentially leading to unchecked executive authority and public backlash. Indeed, any attempt to significantly limit judicial scrutiny could be seen as an erosion of democratic accountability, sparking opposition from legal professionals, civil society, and political opponents.
Additionally, international commitments, such as membership of the Council of Europe and obligations under the ECHR, constrain Parliament’s ability to dismantle human rights protections without significant diplomatic repercussions. Repealing the HRA, for instance, could place the UK in conflict with its international obligations, damaging its global reputation (Gearty, 2006). Furthermore, practical considerations, such as the judiciary’s role in maintaining public trust in governance, act as a deterrent. Judicial scrutiny often serves as a safety valve, ensuring decisions are lawful and justifiable, which can ultimately benefit the government by preventing arbitrary or unlawful actions from escalating into crises.
Finally, the political cost of such legislation cannot be overlooked. Proposals to limit judicial review often face fierce opposition in the House of Lords, where constitutional expertise is concentrated, and from the public, who may view such moves as authoritarian. The backlash against the 2003 Asylum and Immigration Bill, which was ultimately amended to preserve some judicial oversight, exemplifies this resistance (Beatson et al., 2011). Thus, while Parliament retains the theoretical power to act, the practical reality often discourages such measures.
Conclusion
In conclusion, while Parliament possesses the theoretical authority under the doctrine of parliamentary sovereignty to legislate to remove or prevent judicial scrutiny, the feasibility and desirability of doing so are heavily constrained. Mechanisms such as ouster clauses, repeal of the HRA, or redefinition of justiciable matters provide potential avenues for action, driven by frustrations over judicial interference and assertions of democratic legitimacy. However, the rule of law, international obligations, and political considerations act as powerful deterrents, ensuring that judicial scrutiny remains a cornerstone of the UK’s constitutional framework. This balance reflects the nuanced interplay between sovereignty and accountability, suggesting that while Parliament could act, it is unlikely to do so in a wholesale manner without significant justification. The implications of this tension highlight the importance of ongoing dialogue about the boundaries of judicial and parliamentary power, ensuring neither dominates at the expense of constitutional integrity.
References
- Beatson, J., Matthews, M., & Elliott, M. (2011) Beatson, Matthews and Elliott’s Administrative Law: Text and Materials. 4th edn. Oxford University Press.
- Bingham, T. (2010) The Rule of Law. Penguin Books.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Ewing, K.D. (2010) Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law. Oxford University Press.
- Gearty, C. (2006) Can Human Rights Survive?. Cambridge University Press.
- Ministry of Justice (2022) Human Rights Act Reform: A Modern Bill of Rights. UK Government.
