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Legal skills and debates in Scotland
Legal skills and debates in Scotland

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3.2.4  The extent of judicial power

If Parliament should not be completely free to do whatever it would wish in respect of law-making and the role of the judiciary, how much power should the judiciary have, and how much does it in fact have at the moment? Hilaire Barnett’s comments that

Sovereignty is … a fundamental rule of the common law, for it is the judges who uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.

Barnett, 2013, p. 112

This suggests that the judiciary has much more power in relation to Parliament than the existence of the principle of parliamentary sovereignty suggests because the principle itself stems from the common law, which is the domain of the courts. Parliamentary sovereignty is not and cannot effectively be laid down in any statute but is among the higher principles alongside the rule of law that are effectively governed by the judiciary. This is also the case for judicial deference. The judiciary tends to pay homage to the sovereignty of Parliament and the deference of the courts, but it is the judges themselves who determine the scope of the principle and are able to flex it as they feel is necessary and appropriate in any particular case.

Judicial review

While the constitutional power of the judiciary in respect of challenging the will of Parliament is limited, it has considerable power in the administrative sphere, through what is known as ‘judicial review’. This refers to the ability of an individual or group that has been subject to a decision by a public body to challenge that decision through the administrative arm of the High Court, and the ability of the courts to invalidate that decision if it does not comply with certain procedural requirements or is beyond the legal power of the body in question. In recent years this set of powers has expanded considerably as the courts have pushed back against the growth of the ‘administrative state’. This development means that many decisions of public importance are now taken by quasi-autonomous and non-governmental organisations (quangos), and political decision-making is increasingly removed from Parliament and centralised in the hands of the executive. While the courts cannot invalidate legislation through this procedure under the UK constitution, the ability to force a decision of, for example, a government department to be reconsidered is a powerful tool. Whether this remains the case in the future following recent consultations discussed in section 3.3.2 remains to be seen.

Human rights

The Human Rights Act 1998 (HRA 1998) gives powers to courts throughout the UK in respect of the protection of the European Convention on Human Rights (ECHR). These are some of the most influential powers that the judiciary has at its disposal to ensure that UK law complies with human rights law. They include a broad power under Section 3(1) HRA 1998 to interpret UK legislation in line with the ECHR. It reads:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Section 3(1) HRA 1998

The HRA 1998 also includes the power of some of the highest courts in the UK, particularly the UK Supreme Court, to declare legislation incompatible with the ECHR. In respect of Scottish legislation this would mean the legislation is void (not valid). In relation to legislation of the UK Parliament the effect of such a declaration is to notify the UK Parliament that a provision is incompatible with the ECHR, so that it has the opportunity to amend it to be compatible. Such declarations are rarely brought into play and have generally resulted in a change in legislation. Used sparingly, therefore, these declarations are very powerful and effective in ensuring laws that the judiciary considers breach the ECHR are amended.

Despite the continued existence of the declaratory theory of law, the principle of judicial deference, the doctrine of parliamentary sovereignty and the separation of powers, it is generally accepted that the judiciary does both make political decisions and make law, in one reasonable understanding of those terms. It might be concluded that the judiciary both should not be completely overwhelmed by parliamentary sovereignty and related principles, and that it in fact is not, despite political pressure and the apparent formal limitations on its power.