Jackson v Attorney General: Moving Toward a Legal Constitution

• Author: Chong Siew Lin Grace
• Position: LLB, University College London
• Pages: 60-76

JACKSON

VATTORNEY

GENERAL:

MOVING

TOWARDS

A

LEGAL

CONSTITUTION

CHONG

SlEW

LIN

GRACE*

Introduction

The

United Kingdom

is

said

to

have

an

'unwritten

constitution',

an

amalgamation

of

unwritten

and written

sources.

However,

this

notion

is

based

on

a

literal

interpretation

of

the

term

'constitution',

linking

it

to

the

necessary

existence

of

a

document

which

sets

out

the

framework

and

principal

function

of

the organs

of

government

within

the

state

and

the

principles

it

must abide

by.

Thus,

unlike

countries

with

written

constitutions

that

have

superseding

legal

force, like

Ireland,

the

US

or

Germany,

the

United

Kingdom's

constitution

is

based

on

the

concept

of

parliamentary sovereignty.

While

the

UK

constitution

incorporates

many

written

sources,

including

statutory

law,

it

relies

on

unwritten

conventions

far

more than virtually

any

other

liberal democratic constitution.

This concept

of

parliamentary

sovereignty,

exposited

by

Dicey

in

his

well-known

work

Introduction

to

the

Study

of

the Law

of

the

Constitution,

1

has

hitherto

been

unchallenged

by

the

courts

in

the

United

Kingdom.

Overriding

even

the

rule

of

law,

parliamentary

supremacy

is

posited

as

an

all-encompassing concept:

Parliament,

thus

defined,

has,

under the English

constitution,

the

right

to

make

or

unmake

any

law

whatever;

and

further,

that

no

person

or

body

is

recognised

by

the

law

of

England

as

having

a

right

to

override or

set

aside

the

legislation

of

Parliament.

2

However,

recent

events

in

the

United Kingdom

have

demonstrated

the

movement

of

authority

to

the

realm

of

the

courts,

leaving

open the

question

of

whether

the

courts

would

forsake

the

principle

in

the

circumstances

of

a

breach

of

rights such

as

judicial

review,

free

expression,

the

right

to

a

fair

LLB,

University

College

London.

Albert Venn

Dicey,

Introduction

to

the

Study

of

the

Law

of

the

Constitution

(10th

ed,

Macmillan,

1959).

2

Ibid,

at 39,

40.

©

2007

Chong

Siew Lin

Grace

and

Dublin

University

Law Society

Moving Towards

a

Legal Constitution

trial

-

the

"building

blocks

of

democracy

[which]

necessarily permeate

any

democratic

constitution."

3

Similarly,

the

recent

Constitutional

Reform Act

2005,

section 1,

seems to

reserve the definition

of

what

constitutes

"the

existing

constitutional

principle

of

the

rule

of

law"

4

to

the

jurisdiction of

courts

in

the

United

Kingdom.

The

Act provides

for

a

new

Supreme

Court

to

take

over

the

existing

role

of

the

Judicial Committee

of

the

House

of

Lords.

Its

passage

through

Parliament

was

difficult,

reflecting

its

powerful political,

legal

and

institutional repercussions.

Serious

opposition

by

the

judiciary

to

the

harried

way the

Act

was

promulgated

on

the

back

of

the

Cabinet

reshuffle

in June

2003

was

little

quenched by

the

vigorous

policy

and

legislative debates which followed.

It

is

still

uncertain

what this wave

of

constitutional

reform

holds

for

the

United Kingdom,

and much

is

left

to

speculation.

Even

so,

it

is

clear that

regardless

of

whether

it

is

considered

preferable,

the

United Kingdom

appears

to

be

moving

towards

a

legal

constitution, with

a

greater

scope

of

authority

resting

with

the

courts.

In

this

light,

the

House

of

Lords

decision

in

Jackson

v

Attorney

General

5

can

be seen

as

a case

of

major constitutional

significance.

It

issued

a

challenge

to

parliamentary sovereignty

and

left

open

the

question

as

to

whether

courts

possess

the

authority

to

review

and

set

aside

a

parliamentary statute which

undermined

the

rule

of

law,

or

any

other

fundamental

principle

integral

to

a

contemporary conception

of

constitutional

democracy.

Despite

reaffirming the

validity

of

the

Parliament

Acts

1911

and

1949,

which

permit

Bills

to

bypass

the

House

of

Lords

to

receive

the Royal

Assent,

and

confirming

that

these Acts allow

Parliament

to

achieve

major constitutional

changes,

some

scathing dicta

in

this

case

challenged

the

extent

to

which

Parliament

would

be

able

to push

these changes

through

the

courts. However, although

there

has

been

much

legal

writing

on

this subject,

few

academics

beyond

Professor Adam

Tomkins have

considered

the

possible

negative

implications

of

moving

too

much

authority

to

the

courts,

and

have been

quick

to assume

the

preeminent

qualities

of

the

UK

judiciary.

This article

will

demonstrate

the

dangers

of

taking

such

an

extreme

view, and

discuss

the

need

to

rationalise

the

authority

embedded

in the

judicial

system.

By

applying Diceyan

and

Hartean

analysis

to

the

3

Per

Lord

Hoffmann in

Matadeen

v

Pointu

and

the

Minister

of

Education

and

Science

[1998]

UKPC

9;

[1998]

3

WLR

18,

at

109,

speaking

in

relation

to

the principle

of

equality.

4In

the

House

of

Lords

(HL

Hansard,

7

December

2004, cols

742-743),

Lord Kingsland

stated his

belief

that

the clause

(in

a

slightly different earlier version)

was

not

justiciable.

However,

it

is

the

author's

opinion that

such

a

principle

would

not

be

effective

if

it

could not

be

legally enforced by

the

courts.

'

[2005]

UKHL

56; [2005]

3

WLR

733.

20071