What a (for now failed) attempt to curb judicial review tells us about the UK’s constitution

Over the last couple of weeks, I have been teaching new Constitutional Law students in Cambridge about the fundamental, architectural aspects of the UK constitution, including the rule of law, the separation of powers and the sovereignty of Parliament. The House of Lords’ rejection earlier this week of parts of a Government Bill that aimed restrict the availability of judicial review of executive action is an excellent example of the way in which these principles interact.

Part 4 of the Criminal Justice and Courts Bill, in the form in which it was approved by the House of Commons, would have made it more difficult, in certain circumstances, for courts to scrutinse government action in order to determine its lawfulness. I have written before (here and here) about some of the intended limitations, and there is an excellent summary of this week’s House of Lords debate, and analysis of its implications, on the UK Human Rights Blog. However, it is the fact that the government and House of Commons have sought to introduce significant limitations upon judicial review, rather than the precise nature or effect those limitations, with which I am concerned in this post. I argue that this episode illuminates three key issues relating to the UK constitution.

First, it illustrates the relative fragility of the separation of powers in the UK — a fragility that derives from the nature of the relationship between the executive government and the House of Commons and from the power which the executive government is thereby capable of exercising. Although the UK constitution adheres closely to the separation of powers ideal in some respects — the independence of the courts being perhaps the best example — it deviates substantially from it in others. The close relationship between the executive branch and Parliament, in the form of the House of Commons, is the most obvious and significant such deviation. As a result, the executive government is well placed to secure the enactment of its legislative programme. Part 4 of the Criminal Justice and Courts Bill thus represents an attempt by the executive to leverage its position vis-a-vis Parliament in order to reduce the scrutiny to which it is subjected by the courts.

This highlights a further aspect of the separation of powers: namely, the fact that the courts’ powers of judicial review are not (at least on an orthodox analysis) constitutionally secure. Rather, they are vulnerable to regulation and attenuation by legislation enacted by a sovereign Parliament at the behest of the executive government. It follows that the courts’ constitutional role of ensuring government according to law is capable of being altered because legislation cloaked with parliamentary sovereignty can disturb judicial review, notwithstanding that it is a manifestation of the other fundamental but — if the notion of parliamentary sovereignty is accepted at face value — necessarily lesser constitutional principles of the rule of law and the separation of powers.

To put the matter more bluntly, an executive government with its hands on the levers of sovereign legislative authority has to suffer only as much scrutiny via judicial review as it is prepared to tolerate.

Second, however, the fate (for now, at least) of Part 4 of the Criminal Justice and Courts Bill reminds us that the executive government cannot always get its way — thanks, in this instance, to the House of Lords. Regarded (wrongly, I have argued) by many as an unsustainable constitutional anachronism, the House of Lords — being far less amenable than the Commons to control by the executive government or, indeed, by any political party — is capable of serving a crucial function as a constitutional watchdog. It is able to adopt a more detached, objective, long-termist perspective that values fundamental constitutional safeguards over ministerial concerns about how quickly new supermarkets can be granted planning permission (one of the reasons cited by the government in support of its proposed reforms).

The value of this different perspective brought to the legislative process by the House of Lords is hard to overstate. Moreover, the Lords’ ability to act in this way is made all the more valuable by the unavailability of other checks and balances. The relationship between the executive government and the House of Commons means that the separation of powers fails to create as much tension and accountability between those bodies as might be thought desirable, while the checks and balances that courts can supply are inevitably blunted by the doctrine of parliamentary sovereignty, which means that courts cannot ultimately stand up to Parliament — even when its legislation threatens something as intimately related to bedrock constitutional principles as judicial review. It follows that, in the absence of other substantial constraints upon the executive/House of Commons, it is crucial that a degree of tension and accountability is injected into the relationship, within Parliament, between the two Houses.

Third, this episode reveals something significant about the relationship between legal and political forms of constitutionalism — which, I have been telling my new Constitutional Law students, is fundamental to understanding our the UK constitution works. Judicial review of administrative action is a — if not the — principal manifestation of legal constitutionalism in the UK. It is a means by which government can be held to account by legal institutions and by reference to legal benchmarks of constitutionally appropriate behaviour. Ultimately, however, any orthodox account of the constitution is forced to concede that the availability of such legal-constitutional constraints is contingent upon political acquiescence. In other words, unless political-constitutional factors induce the political branch to stay its hand, judicial review — and, with it, our most significant form of legal-constitutional regulation — may be swept away by legislation enacted by our sovereign Parliament.

This prompts two thoughts by way of conclusion. First, orthodox accounts of the constitution may be wrong. For instance, in Jackson v Attorney-General [2005] UKHL 56, Lord Steyn went so far as to say that while the “supremacy of Parliament is still the general principle of our constitution”, it is nevertheless “a construct of the common law”:

The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

Whether — and, if so, in precisely what circumstances with what consequences — a court would ever go as far as Lord Steyn envisages is entirely unclear, but the possibility of judicial intransigence in the face of legislative attempts substantially to undermine judicial review clearly should not be entirely discounted.

This leads to a second thought. Written constitutions amount to roadmaps which (among other things) tell us what would happen were the worst to come to pass: they delineate the boundaries of constitutional behaviour and prescribe what consequences would ensue were such boundaries to be exceeded. In sharp contrast, the UK constitution is, to an extent at least, premised upon the worst never happening in the first place. And it is in the interaction of legal and political forms of constitutionalism that this premise becomes more than an empty aspiration. The constitution presupposes that constitutional actors — judges as well as politicians — will exercise restraint by reference to shared, if not wholly articulated, understandings of the limits of constitutional acceptability. Unless there is to be resort to a written constitution or the hard form of (unwritten) legal-constitutionalism hinted at in Jackson, the executive government must continue to tolerate what is doubtless sometimes the intense irritation of judicial review.

It follows, then, that if we are to understand the architecture of the UK constitution — and the relationship between its three key architectural features: the sovereignty of Parliament, the rule of law and the separation of powers — we must locate those principles within a constitutional setting that acknowledges and respects the balance between legal and political forms of constitutionalism. Judges must respect Parliament’s authority to legislate and the government’s right to govern, but, in their turn, the political branches must recognise that it is the courts’ constitutional role under the separation of powers to uphold the rule of law by subjecting government action to legal scrutiny.

It would be going much too far to suggest that the recent attempt to curb judicial review causes that balance to break down, but the House of Lords’ resistance to those attempts serves as a warning that they represent the start of a potentially dangerous constitutional journey whose outcome cannot be predicted with any certainty. The sustainability of our existing constitutional arrangements demands that legislators do not embark upon such a journey, however tempting it may be.