Introduction
This essay examines the provocative assertion that judicial review in the United Kingdom exists merely due to Parliament’s tolerance rather than any inherent constitutional authority vested in the courts. Judicial review, as a mechanism through which the judiciary evaluates the legality of actions taken by public bodies, is a cornerstone of the UK constitution. However, the unwritten nature of this constitution and the principle of parliamentary sovereignty raise pertinent questions about the source and legitimacy of judicial power in this context. This essay will argue that while Parliament’s sovereignty indeed underpins the framework within which judicial review operates, the courts have developed a significant degree of practical authority through historical evolution and legal principles. The discussion will explore the doctrine of parliamentary sovereignty, the historical development of judicial review, and contemporary challenges that highlight tensions in this relationship. Ultimately, it will be contended that judicial review, while tolerated by Parliament, also embodies a form of constitutional authority shaped by judicial creativity and societal expectations.
Parliamentary Sovereignty and the Basis of Judicial Review
Central to the claim that judicial review exists only due to Parliament’s tolerance is the doctrine of parliamentary sovereignty, a fundamental principle of the UK constitution. As famously articulated by Dicey, parliamentary sovereignty means that Parliament has the right to make or unmake any law, and no body or person can override or set aside its legislation (Dicey, 1885). This implies that the courts, including their power of judicial review, operate within the boundaries set by Parliament. Indeed, the judiciary cannot strike down primary legislation, distinguishing the UK system from constitutional setups like that of the United States, where courts can invalidate laws deemed unconstitutional. Instead, UK courts are limited to reviewing the legality of executive actions and secondary legislation, ensuring they conform to parliamentary intent or statutory frameworks.
Legislation such as the Human Rights Act 1998 (HRA) further illustrates this dynamic. Under the HRA, courts can issue a declaration of incompatibility if primary legislation violates rights enshrined in the European Convention on Human Rights, but they lack the power to invalidate such legislation (Section 4, HRA 1998). This limitation reinforces the view that judicial review operates under Parliament’s ultimate authority, as only Parliament can choose to amend or repeal incompatible laws. Thus, at a foundational level, the claim holds weight: judicial review appears contingent on parliamentary tolerance, as Parliament retains the final word on the legal framework within which courts function.
Historical Development and Judicial Creativity
Despite the overarching principle of parliamentary sovereignty, the historical evolution of judicial review suggests a more nuanced picture, where courts have carved out a degree of authority through their interpretative and creative roles. Judicial review has roots in common law, tracing back to cases such as Dr Bonham’s Case (1610), where Sir Edward Coke hinted at the judiciary’s role in checking arbitrary power, albeit within limited scope. Over time, through landmark cases like Entick v Carrington (1765), the courts established key principles such as the rule of law, asserting that executive actions must be grounded in legal authority. This historical trajectory indicates that judicial review is not merely a product of parliamentary largesse but also a judicially developed mechanism to safeguard legal principles.
Furthermore, the judiciary has often expanded the scope of judicial review through doctrines like unreasonableness and proportionality, particularly in the post-World War II era. For instance, in Wednesbury Corporation v Ministry of Housing and Local Government (1948), the court established the principle of unreasonableness as a ground for review, a standard that has evolved over decades to accommodate broader scrutiny of public decisions (Loveland, 2018). Such developments suggest that, while Parliament could theoretically curtail judicial review, the courts have proactively shaped their role, arguably establishing a form of constitutional authority that transcends mere tolerance. This raises a critical question: if judicial review were solely dependent on parliamentary acquiescence, would the judiciary have been able to expand its remit so significantly without explicit legislative endorsement?
Contemporary Tensions and Parliamentary Response
Contemporary debates surrounding judicial review further illuminate the tension between parliamentary sovereignty and judicial authority. Critics of judicial overreach, particularly in politically sensitive cases, argue that courts sometimes encroach on areas of policy that should remain within Parliament’s purview. A notable example is the Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union (2017), where the court ruled that parliamentary approval was required before triggering Article 50 to exit the EU. This decision was met with accusations of judicial activism, with some asserting that the court overstepped its constitutional role (Elliott, 2017). Such cases arguably lend credence to the view that judicial review exists at Parliament’s sufferance, as public and political backlash could prompt legislative curbs on judicial power.
Indeed, recent government proposals, such as the Judicial Review and Courts Act 2022, reflect parliamentary willingness to reassert control by limiting the scope of judicial review in certain contexts, such as immigration cases. This legislative response underscores the ultimate authority of Parliament to redefine the boundaries of judicial review. However, it is worth noting that outright abolition of judicial review remains unlikely, given its entrenched role in maintaining the rule of law and public trust in governance. This pragmatic balance suggests that while Parliament tolerates judicial review, the courts wield a practical authority that Parliament is reluctant to fully dismantle.
Conclusion
In conclusion, the assertion that judicial review exists only because Parliament tolerates it captures a fundamental truth about the UK’s constitutional order, rooted in the doctrine of parliamentary sovereignty. The judiciary operates within a framework ultimately controlled by Parliament, as evidenced by limitations on striking down primary legislation and periodic legislative interventions to curtail judicial review. However, this essay has argued that such tolerance does not fully account for the authority courts have developed through historical precedent and judicial creativity. Principles of the rule of law, expanded grounds for review, and landmark rulings demonstrate that judicial review embodies a form of constitutional authority, albeit one that lacks the formal entrenchment seen in other jurisdictions. The tension between parliamentary sovereignty and judicial power remains a dynamic aspect of the UK constitution, with implications for how power is balanced in a democratic society. Ultimately, while Parliament retains the ability to limit judicial review, the judiciary’s role in upholding legal norms suggests a deeper, albeit contingent, legitimacy that transcends mere tolerance.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. (2017) ‘The Supreme Court’s Judgment in Miller: In Search of Constitutional Principle.’ Cambridge Law Journal, 76(2), pp. 257-260.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. Oxford University Press.
(Note: The word count for this essay, including references, is approximately 1050 words, meeting the requirement of at least 1000 words. Due to the constraints of this format, exact URLs for online sources are not provided as they could not be verified in real-time. However, the cited works are widely available through academic databases or library resources.)
