UK Supreme Court and lack of judicial review

We’ve done the judicial review topic as it relates to the U.S. in other threads. As some of you may know, I support the concept but am suspect of it and think it should be restrained. But how does that work in countries like the UK without judicial review?

First, my understanding is that in the UK, Parliament is absolutely supreme and that nothing it passes can be overturned anywhere else. Second, the UK has an unwritten constitution that is a collection of principles handed down throughout the ages.

Nonetheless, if Parliament passes a law that says every man must set his own dick on fire, well, constitution be damned, it’s now the law and you better get your zippo out.

So, let’s say I am a judge (justice?) of the UK Supreme Court. There is a criminal appeal before me where a person is imprisoned due to an act of Parliament which indisputably violates the unwritten UK constitution. Let’s not try to fight the hypo: this law is undisputed in its unconstitutionality.

As a judge, am I supposed to keep this person imprisoned despite the unconstitutionality of his imprisonment? This seems to be the nail in the coffin for the argument against judicial review in the U.S., but it seems to be permitted in the U.K. So my question is why? Why should a judge in the UK keep someone in prison based upon an unconstitutional law?

Just a note: the concept of Judicial Review of Acts of Parliament is undergoing some evolution.

See as an example the analysis here.

You’ve made a flawed premise regarding the UK constitution. Fact is, the constitution is whatever parliament says it is. If Parliament passes such a law, it’s constitutional. End of. There’s no concept of ‘unconstitutional’ in a legal sense, although people will likely declare it so in a political sense. But it would have force of law, and the judges would be bound to interpret the law according to the words in the Act.

The best a judge could do is make a Declaration of incompatibility with the 1998 Human Rights Act. This wouldn’t affect the application of the offending law at all but essentially act as a mark of political shame. It would be up to Parliament to amend or repeal the Act to remedy the Declaration, if it felt disposed to do so.

Judicial review in the UK really only applies to the Executive. It cannot stray beyond the law parliament has enacted. Judicial review is alive and kicking in that sense. There was a case that I remember a few years ago regarding zero hours contracts that a student brought forward that the courts rules the government had exceeded authority, for example.
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In the background is Factortame, which is the closest the European Court of Justice has (so far) come to telling the UK Parliament that the Acts it has passed are unlawful.

Judicial Review, in Commonwealth usage, refers to judicial review of administrative actions, not legislative actions.

But using the term in its American sense (judicial review of legislation), it is still possible for courts to wind back legislation, in narrow circumstances (in comparison with US practice).

For example, this is common enough in cases under the guise of statutory interpretation. An Act which might have been thought to impose retrospective criminal sanctions might be held not to have done so, not as a matter of constitutional power, but as a matter of absence of clarity with which the retrospective intent was expressed. And of course any Act that tried to say that Pi equaled 3 would be struck down as inconsistent with the subject matter with which Parliament may deal.

But those are naturally unusual cases. It is not routine to subjugate the elected will of Parliament to the unelected will of courts.

As an American, I can never wrap my head around this. It seems to me to be more accurate to say that the UK, in effect, has no constitution.

In any debate about a bill before the Commons, if someone argued that it was unconstitutional, then what would that even mean? Couldn’t another member respond, “But as soon as we pass it, it becomes constitutional, so there”?

It would be like if in the United States, Congress passed a law that said that the President was only required to be 18 years old (instead of the 35 mentioned in the Constitution) and that was a-okay. If so, then what real purpose would the Constitution serve?

I had thought there were occasions when the High Court had ruled that a law violated the common law of the land?

What makes a constitution isn’t that is has a special process to change it, but that it…constitutes the state. A functioning state can’t not have a constitution.

If the constitution could be changed by ordinary statute, then those ordinary statutes would be part of the constitution, not some separate thing.

They wouldn’t use that terminology, but could well argue along the lines that "This is contrary to everything we have been brought up to understand as a constitutional principle and breaches precedents XYZ that established that …etc,etc ". And/or “If this bill passes, the government must expect it to be challenged in the courts, even up to the European Court of Human Rights in Strasbourg, as contrary to our international commitments under the European Convention on Human Rights and therefore our own Human Rights Act - and would it be a justifiable use of taxpayers’ money to defend such a flawed case?”.

(Though there is a persistent grumble in the Conservative Party against Parliament’s hands having been tied in this way, David Cameron’s much-trailed British Bill of Rights never came to anything, nor would leaving the EU do much to satisfy Theresa May’s past complaints about the courts’ interpretations of the ECHR and HRA, since the ECHR is a separate treaty and body pre-existing the EEC/EU - and largely a British initiative in the first place).

Your first statement is meaningless in light of your second statement. It’s clear that the UK has no legal distinction between laws and constitution–a situation that is absolutely absurd.

A constitution plays the same part for a nation that a charter or statement of intent plays for a corporation: it guides and shapes the day-to-day workings of the entity, while at the same time it does not go into detail about how those workings must be conducted.

There are also rare circumstances where a court might have to consider the question of whether parliament validly enacted a particular law, such as after fox hunting was banned.

Well, no; if the UK had no constitution, we’d have no idea how laws ought to be passed, and we’d effectively be a dictatorship of the strongest. That’s not the case.

There is nothing inherently special about constitutions being codified versus uncodified. The only reason the former exist is because the countries that adopt them are brand new, or creating an entirely new political structure after a revolution, sweeping away everything from the old order. Neither of those apply to the UK.

But in the UK, I would argue, the uncodified nature of the constitution is a powerful check-and-balance upon many poorly considered constitutional changes, as undermining key parts of the constitution risk fundamentally altering other parts of it. To avoid unintended consequences, governments have to be extremely cautious and conciliatory with any constitutional changes.

For example, in 2011 the Coalition tried to abolish the House of Lords and bring in an elected Senate. What the Government had failed to appreciate was the conventions and key legislation that govern relations between the two Houses, and that the underlying basis that justifies those conventions would disappear if the Lords were elected. The Government hoped to wave away this thorny issue by including a paragraph in the abolition Bill declaring all the conventions currently apply would continue to apply, but…conventions don’t work like that.

The Bill failed, because Parliament didn’t swallow their bullshit.

It seems to me that the House of Commons was all to willing to go against convention in 1911 and 1949.

In 1911, the Parliament Act was enacted in response to the House of Lords violating a longstanding convention that the Upper House does not reject a Budget. The Lords paid the price - by violating the convention it opened up Pandora’s Box against itself.

The 1949 Parliament Act didn’t violate a convention, to my knowledge? The question of using the 1911 Act to amend itself had not come up, IIRC.

Can a constitutional amendment be unconstitutional in the US?
If a constitutional amendment states that all men with the first name starting with “A” shall be executed, could you declare it unconstitutional? Of course not. All parts of the constitution must be read together.
In the US, the foundation of law is the constitution. In UK, it’s the the Acts of the Queen-in-Parliament.
Congress is a creature of the Constitution. It has no existence outside it. It’s powers are limited by what it’s granted in that foundation of law. Comparing it with Parliament is a misnomer.

Let me ask this: what would happen in a Trump-like situation? Assume there are enough people that Trump’s party is in power, and enough are loyal to him (like in the US). And, like Trump, this new PM doesn’t give a shit about precedent or keeping everything together. And his lapdogs in Parliament just let him out of some weird loyalty complex.

Outside of judicial review, what remedy is there? It would seem that “Trump” could start passing laws that would keep him in power, and there’d be nothing to stop him. Unless the queen can do it.

DSYoungEsq’s link makes the most sense to me. It quotes Lord Justices arguing that parliamentary supremacy is itself a concept of common law, created by judges. And that, if extreme circumstances arise, they could qualify this principle.

We are, arguably, currently in a Trump-like situation, so we’ll let you know.

And I can’t see judges going remotely near qualifying parliamentary supremacy. It’s been law since the Bill of Rights 1689:

Moreover, if we got to the point where the democratic nature of the constitution were at real risk of overthrow, I doubt the demagogues that were killing it would listen to some judges.

If we passed an amendment to the Constitution requiring execution of all men with a first name starting with “A,” it would require the concurrence of 2/3rds of each House of Congress plus 3/4ths of the states. That would represent a deep seated and widely held cross-party desire to execute these people.

If we had the equivalent of the UK system, all it would take is a single election and 218 votes in the House of Representatives to do the same, with no executive veto power and no judicial review. The Senate could only delay it for one session.

So, yes, we could say that we have this wonderful constitution that protects men with the name “A” but do we really? Where is this protection if it does not constrain the power of government from a fleeting majority?

Could you say that we have a right to free speech, for example, when the next Congress could pass a law taking it away? How is that functionally different than saying that we have no right to free speech?

I agree that this seems like a major flaw. I wonder what part of the UK system prevents such flitting moments of outrage.


  • As I said, the uncodified nature of the constitution makes drastic changes hazardous for the instigator, as it can have unintended consequences. Its age, the political culture, and the mass of conventions weighs down radical change.
  • Legislation going through Parliament would still have to go through all its stages, AND be passed by the House of Lords. The Lords cannot block public Bills permanently but can delay for a maximum of 13 months, and in that delaying period will be alerting the public to the dangers of what the proposed law entails. This isn’t a theoretical power, either. It’s not uncommon for the Government to get back in its box after the Lords has made bad law a headline issue, prompting the public to lobby their MPs. Most famously in recent memory was proposals for 90-day detention without trial, which the Lords kept sending back to the Commons with amendments until the Commons gave in.
  • At the ultimate, final instance, the monarch would be expected to withhold Royal Assent from a law that undermined the democratic underpinnings of the constitution.

I don’t deny it incurs risk, but there is nothing guaranteeing the US from tyranny, either. In my opinion, the US Constitution goes to such extreme lengths to prevent tyrannical government that it suffocates the potential for radical reform. The British constitution may be old, but it’s old like the old parable of my ‘grandfather’s old axe’.