British Courts Flex Their All-American Muscles

Noah Feldman

(Bloomberg Opinion) -- Tuesday, Britain’s Supreme Court will start a pivotal hearing related to Brexit. What it decides could tell us just how aggressive judicial review has gotten, and how far it’s spread from its foundations in the U.S..

Over the last 50 years, the American practice of judicial review has made its way around the world. It has become increasingly common for judges in constitutional systems to see themselves as the final decision-makers on constitutional legitimacy.

Whether that’s a good thing for democracy — I think it’s not — is a separate question. But the story of how we got here is an illuminating and important one. That story starts more than 200 years ago, to the moment in 1803 when the U.S. Supreme Court formally declared that it had the authority to review an act of Congress and hold it unconstitutional in Marbury v. Madison.

Even so, the U.S. Supreme Court did not get into the regular business of overturning statutes until the late 19th century. And it was only in the 1960s that the court came to see judicial review as intended to protect the basic institutions of democracy, and even then it was controversial – because it necessarily required the court to decide which democratic processes were legitimate and which were not.

But now, the existence of a supreme court or constitutional court with the power to review legislation has come to be seen by many as a sine qua non of true democracy. The European Union even requires its members to have such a thing.

That’s the court that will now decide the fate of last week’s ruling by Scotland’s highest court, which ruled that it was unconstitutional for Prime Minister Boris Johnson to prorogue Parliament (a gambit designed to limit debate over Brexit and thus give Johnson more leverage over his rebellious MPs).

But seeing judges as the ultimate arbiters of democratic fairness goes against the long-held traditional thrust of British constitutional thought. That tradition treats Parliament itself as the effective sovereign. In its historical form, British constitutional thought would not have countenanced the idea that an act of the queen on the advice of the prime minister could be somehow deemed unlawful by a court.

For real-life British judges to rule otherwise, even in the heat of the Brexit debate, reflects how far the American-born practice of judicial review has reached, even into the once-impregnable bastion of British constitutional law.

The U.S. Supreme Court’s decision in Marbury v. Madison certainly had some antecedents in British legal thought. Scholars have identified possible roots of judicial review in British statutory interpretation, corporate law and colonial charters — all of which sometimes contained mechanisms for declaring a law to be “void” because it was “repugnant” to some higher principle.

But crucially, after the U.S. introduced judicial review, the British system did not go the same way. William Blackstone, the great 18th-century British legal commentator, had already stated that Parliament exercised sovereign and uncontrollable authority. By that logic, a court could never overrule a statute or other act of Parliament as unconstitutional. Debates about constitutionality in Britain were ultimately to be determined by Parliament itself.

Blackstone’s view was refined and put into its modern form by the influential 19th-century constitutional lawyer A.V. Dicey, who famously wrote that Parliament has “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.”

The Scottish judges’ recent decision makes fascinating reading. They had to address the fact that a lower court in Scotland (as well as one in England) had already concluded that a court could have nothing to say about the political act of proroguing Parliament.

The three judges each delivered separate opinions, although they agreed on the bottom line.

One, the president of the court, Lord Carloway, said explicitly that prorogation “was not reviewable on the normal grounds of judicial review.” Yet he said the decision “would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive.” How could he know that? Because, he said, allowing Parliament to scrutinize the executive “was a central pillar of the good governance principle enshrined in the constitution.” He did not point to any concrete provision of law, because the British constitution isn’t a single codified document. Instead he said that conclusion “followed from the principles of democracy and the rule of law.” It’s not at all obvious that the principles of democracy allow unelected judges to overturn the actions of elected members of Parliament. That idea requires one to believe that judicial review is an inherent part of democracy. That isn’t the traditional British constitutional value of parliamentary sovereignty.

Another judge, Lord Brodie, also thought that under ordinary circumstances, judges lack the authority to consider whether Parliament may be prorogued. But he said that “the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful” because it was “an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.” The judge’s view seems to be that when the prime minister does something egregious, the power of judicial review kicks in. That’s a surprising doctrine — unless you think the job of the judiciary is to ensure that basic democratic practices are followed.

The most radical view was that of the third judge, Lord Drummond Young. He said that “the courts have jurisdiction to decide whether any power, under the [royal] prerogative or otherwise, has been legally exercised.” This statement effectively puts the judiciary above Parliament and even the monarch. It would be hard to imagine a position further from that of Blackstone and Dicey — even though the judge quoted the latter.

Even if the UK Supreme Court reverses the Scottish court’s decision, it will stand as proof that globalized ideas of judicial review have made deep inroads into British constitutional thought. Judicial review, built by Americans on British foundations yet long rejected in the mother country, is coming full circle.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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