UK Supreme Court and lack of judicial review

I was also thinking (although forgot to put it down). The House of Lords Act of 1999. And the 1911 Act went far beyond limiting the House of Lords on money bills. It in effect reoved the HoL as an effective part of Parliament.

Hardly! The Lords still had a major part to play. The number of times the Parliament Act has actually been used in the past century can been counted on your fingers and your toes. It has been known to make amendments to Budgets on occasion (I remember a famous time in the 1930s - forget the details right now - where the Commons accepted the changes!), and retains absolute vetoes on all secondary legislation, which it has used within very recent years.

And your mentioning of the 1999 Act makes my point. First, it was a cautious change - far short of abolition and election, as many wanted, and more cautious still, as it retained 92 hereditaries in the House. Secondly, even that had consequences, as it enhanced the legitimacy of the House to throw its weight about, and the Lords is a pricklier thorn in the side of governments of both major parties in a way it has not been for a very long time.

If I am understanding our UK posters, the main restraint is the tradition and in a somewhat perverse way, the non reviewability of the decision acts as a check.

So while our legislators might vote in favor of a politically popular bill of questionable constitutionality, they can do so knowing that the courts can correct their mistake, while MPs know that they are the end all be all so they must take that duty far more seriously.

Am I close?

As an example: Say I am a Congressman from Mississippi and I am modestly pro-choice. My constituents are strongly pro-life.

Congress proposes a bill banning all abortions after 2 weeks of pregnancy. I am personally opposed, not only to the substance of the bill, but I also believe that it violates the interstate commerce clause.

I can vote in favor of the bill and please my constituents, all the time knowing that the courts will strike down this law. A win-win for me. I can tell my constituents how I protected unborn children, yet the bill does not have the force of law.

If we had a system like the UK, I would be forced to take seriously the consequences of my vote.

Broadly speaking, I’d say that, yes. America subscribes to divided government: much of the time, the different branches are commanded by opposing parties, and law comes through compromises made between them in the open. So they can subscribe, sincerely or not, to some out-there beliefs in the knowledge they don’t have to deliver, just fan-service. And if the law (or lack thereof) turns out to be awful anyway, blame the other side.

In the UK, most power is held by the Commons, and there, the Executive always has a majority. All responsibility therefore lies at the feet of the Executive. If a law is bad, they passed it, so it’s their fault. If no law was passed, it was their fault for inaction. There are still people subscribing to out-there beliefs, but they are nearly always elected on the basis of a very specific party manifesto at election time and are expected to sustain that manifesto in Parliament, unless they believe firmly enough to defy it and they know their defiance will be upheld by their voters.

You can get a bit hung up on terminology here.

Parliament may not pass a bill that is unlawful & we also have statutes on how stuff should progress.

There have been numerous uses of the above by both the pro and anti brexiteers in recent months. Notibly, in this thread the Gina Miller victory to force a commons vote on the Brexit agreement (https://www.theguardian.com/commentisfree/2017/jan/24/supreme-court-brexit-judgment-constitution-gina-miller) and for balance a brexiteer victory recently in an attempt to quash the original referendum result.

We also - at least for the next 3 months have the European Courts.

I accept there are differences but it’s not quite so different as maybe you think…

The European court of human rights (as long asthe British parliament doesn’t withdraw from this treaty. For people unaware of it, the ECHR isn’t related to the EU, so the Brexit has no influence on this).

The European Court of Human Rights also has no enforcement powers, and its own jurisprudence establishes that it has no authority to repeal or overturn legislation which contravene the Convention.

It’s important to remember that parliamentary power is limited by the the ability of the government to maintain a majority and the confidence of parliament. Introducing a bill that far outside public opinion would trigger a defeat, and force the entire government to resign.

It’s worked out okay for 803 years. Tradition and historic practice are ultimately the backbone of any constitution.

The US Constitution is only a check on the powers of Congress because everyone agrees it is. If Congress decides tomorrow that judicial review isn’t a thing, and that it has the ultimate power to determine the constitutionality of its own acts, what is SCOTUS going to do?

It’s not Congress who decides this. Ultimately, if Congress decides one thing and the Supreme Court decides another, the Federal police (and military) will be instructed to use as much force as necessary to ensure that the Supreme Court’s version stands. They all swore an oath on the Constitution to uphold it.

But the Constitution isn’t explicit in giving the courts the power of judicial review. The courts gave themselves that power.

That is the same in the United States. It was majorities that enacted school segregation, laws outlawing abortion and same sex marriage, limits on speech in campaigns, handgun bans, etc. Without judicial review, many of those laws might remain in place today.

My point is the fact that it requires a majority vote does not mean it is a protection of fundamental rights. The very reason we limit our legislature is because it does indeed pass unconstitutional laws from time to time.

For various definitions of “okay” I would agree. (There were a few beheadings and an establishment of a republic in there at one point.)

If Congress denies the power of judicial review, the executive breaks the tie. Congress passes a law against mopery. SCOTUS declares it unconstitutional. Congress tells them to piss off. SCOTUS still orders that the prisoner convicted of mopery be freed. Congress says don’t you dare free that man.

if it is a federal prisoner, the Executive, the Warden of the Penitentiary (through his powers descended from the President) where the prisoner is held breaks the tie by deciding whether to free the prisoner or not.

If it is a state prisoner, then we have a face off pretty similar (without the racism) of George Wallace standing in the schoolhouse door. Who blinks?

I think judicial review has gone too far. At the same time, I think you would be as terrified as I would about absolute majority rule with no checks in the United States.

It’s not unchecked absolute majority rule, though. There’s a strong incentive to compromise as aggressive upturnings of longstanding constitutional points can be double-edged swords. Upset the applecart one day and find your government kneecapped the next. Government has mastered the art of working with the Opposition to steer legislation through while giving reasonable time for debate and knowing when to concede rather than face formal defeat. And that’s just in the Commons. The dynamics are utterly different in a parliamentary system versus a presidential one. Presidents have personal power and vie against the Legislature. Prime Ministers only have collegiate power, which when wielded right can be awesomely powerful, but can vanish in moments if not wielded with care.

And judicial review did not address the injustices of Jim Crow for decades. It was political culture that changed it. The courts were the tool used to enforce that change. But America’s reliance on the judiciary to enforce/enact changes is utterly alien to me as a Brit. That and elected judges. Makes my skin crawl!

The problem is - if the constitution does not take precedence over all other law, what is the point of it? You end up with the British system. Congress could pass whatever it wants, and if the president signs it, it overrides anything earlier - including the constitution. But - the constitution is also essentially a treaty between the feds and the states. If the feds can override the constitution on a whim, it negates the division of powers which defines states rights vs. federal. And if there’s a dispute over what the constitution and laws mean - it’s the court’s job to sort it out, decide whether a law is enforceable, whether it overrides previous or is overridden, when two are in conflict. Judicial review is just saying “this law/constitutional rule/ etc. overrides this one.” This is fundamentally what a court is and does. (Of course, sometimes the decisions are convoluted logic, like with the interstate commerce clause) The alternative is chaos.

Another point is that codified constitutions can be used to defend and prolong indefensible things. Imagine if the UK had codified its constitution in 1800: we’d have extremely limited suffrage, a full-powers, hereditary House of Lords, and a King not unknown for speaking out on public issues and throwing his weight around. It would have been nigh-impossible for democracy to evolve over time without a revolution. And with the exception of the United States, I don’t know of any revolutions that didn’t generally lead to a worse government that trampled on civil liberties and instigated a Terror.

A codified constitution can include an amendment procedure. I can provide at least one prominent example.

I wouldn’t say it was some ambiguous “tradition”; I would say it was democracy and a strong meta-political ideology - one of rule of law and limited government. The British people themselves are the defenders of their individual rights and liberties, through the democratic process. They have elected parliaments which have steadily increased the legal protections for individual rights and freedoms. The Britain of 2019 is very different from the Britain of 1819, and even 1919 - and that steady trend towards protection of individual rights has all been achieved through the ever-increasing democratic process and Parliament.

After all, think of the two examples you gave: the “dick-lighting bill”, and the “kill every man whose name starts with A”. In what democracy would those bills see the light of day? What Parliament, composed largely of men, would vote for the first one? and how could the second bill ever get passed? The men whose names start with A would be opposed. So would their wives and sisters and mothers and daughters and friends. And people who have no connection with a man whose name starts with A would think, “Who’s next? My name starts with a B…” Such a bloody, purposeless bill could never pass Parliament.

One of the insights of the US founding fathers was that the real danger to democracy/republicanism/self-government isn’t the legislative branch - it’s the executive branch. Reading Farrand’s summary of the convention, that was a recurring theme: how to design an executive which could be effective (one of the main defects of the Articles of Confederation), and yet would not lead to an autocrat? They put several checks and balances in, and then the nation wisely chose Washington as the first President, who by his conduct (eg only serving two terms) helped to establish traditions of limitations on the executive.

And that is where the British tradition has equally been strong. Judicial review of executive action is a potent force in the British system. It’s based on the principle of ultra vires :wink: : executive action must always be based in law, whether statute or common law, and the courts have the authority to review executive action against statute and common law, to ensure that the executive has the authority to do what it is claiming. Parliament has passed statutes, such as the Equality Act and the Human Rights Act which bind the Crown and require the executive to exercise its powers in relation to individuals under settled principles of equality and non-discrimination. The Human Rights Act also provides a limited form of judicial review of legislation, measured against the European Convention on Human Rights and Fundamental Freedoms.

So I would say that the British system does create strong protections for individual liberties and the rule of law. It’s a different system from the US, but it’s an effective one.

And judicial review confirmed that African-Americans were not, and never could be, the equal of white people, could not be citizens of states or the United States, and could be chattel property of white people.

Judicial review confirmed “separate but equal”, ensuring Jim Crow laws in accommodation and school segregation in the United States for over a century.

Judicial review confirmed that Americans of Japanese descent could be rounded up and placed in concentration camps, because of their race, and with no indication on an individual basis that they posed any threat to the United States.

Judicial review confirmed that women had no right to vote.

Judicial review confirmed that two gay men could be prosecuted for their sexual activities.

Judicial review is not an absolute guarantee of equal treatment under the law.

Yes, but the US constitutional amendment procedure is, you have to agree, exceedingly difficult and is deliberately built to ensure a conservative system. There’s little potential for radical change.

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Yes, the US is the system where 13 states can block a constitutional amendment, regardless of their population. That means that the 13 states with the lowest population, which collectively have less than 5% of the US population, can veto a constitutional amendment accepted by states with 95% of the US population.

The British system allows for constitutional amendments by votes in the Commons, which is much more closely based on population.

(See the ranking of the US states by population in this wiki article.)

It’s difficult on purpose, to keep it from being done lightly, but it has been done 27 times, including measures that would certainly be considered radical and even ridiculous by the original writers. It’s only recently that the idea that it just can’t be done anymore and there’s no point trying has been spread by the conservative faction in the US.