Constitutional Law: The Big Picture II — Judicial Review

In the first post in this series, I explained that the aim of the accompanying set of videos — which began life as a series of lectures to Cambridge undergraduate Law students — is to address the nature of the UK constitution by posing a particular question about it. The question that I ask is whether the constitution is better understood as something that is ultimately malleable and flexible — a blank canvas upon which a sovereign Parliament can, from time to time, impose whatever constitutional arrangements it wishes — or whether the constitution has durable, resilient content that limits law-makers’ freedom of action, parliamentary supremacy notwithstanding.

The opening video in the series sets the scene for exploring those issues by addressing key constitutional principles, including the rule of law, the separation of powers and the sovereignty of Parliament. In this second video, I turn to the first of four specific areas in which the overarching issues that are the concern of the series are examined in greater depth. The area with which this video is concerned is judicial review. (In later videos, I will consider the territorial constitution, the protection of human rights and constitutional lessons that can be drawn from EU membership and exit.) The aim is not to provide a synoptic account of the law of judicial review; rather, it is to consider where judicial review fits into the constitutional order, and what that might, in turn, tell us about the nature of the constitution itself.

If Parliament is sovereign, such that it can (as Dicey put it) ‘make or unmake any law’, surely it can make a law excluding (or, ultimately, even abolishing) judicial review? And if (as Dicey went on to say) ‘no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’, surely the courts would have to recognise Parliament’s sovereign capacity to enact such legislation and accept that judicial review had thereby been curtailed (or even abolished)? More generally, does the doctrine of parliamentary sovereignty mean that we are forced to accept that judicial review exists only to the extent that Parliament is prepared to tolerate — and only on such terms as it is prepared to accept? In the video, these questions are addressed with particular reference to two current issues: the Independent Review of Administrative Law and the use of ouster clauses by Parliament to attempt limit or exclude judicial review. These matters, I argue, cast useful light on broader questions about the constitution and about judicial review’s place in it.