‘The supremacy of Parliament is still the general principle of our constitution.’ Those were the words of Lord Steyn in R (Jackson) v Attorney-General in 2005. In one sentence he summed up the new dangerous assertion by the judiciary that parliamentary sovereignty is no longer the fundamental principle of the British constitution. Luckily not every judge in this case agreed with Lord Steyn’s radicalism, but the mere fact that a Law Lord felt able to question more than two centuries of accepted constitutional fact is noteworthy in itself.
In a little-reported amendment to the Crime and Courts Bill earlier this week, Lord Phillips of Worth Matravers, the recently retired President of the Supreme Court, sought to transfer the power of appointing the Chief Executive of the Supreme Court from the Lord Chancellor, currently Chris Grayling to the President. The move is supported by Lord Neuberger, President since October this year, and Lord Pannick QC, a leading Crossbencher in the House of Lords and constitutional expert. Their reasoning is that the Supreme Court, and by extension the judiciary as a whole, must have its independence assured and asserted.
In many ways this amendment is largely irrelevant. It makes sense that the Chief Executive, charged with running the Supreme Court rather than making any judicial decisions, should be appointed by and accountable to the President. However, it is yet another reflection of how the principles of the British constitution have been flouted and undermined by the misguided notion that independence can only be guaranteed by physical distance, and that you can get rid of one constitutional construct without impinging adversely on another.
Parliamentary sovereignty relies on the idea that statute is supreme. Whatever Parliament says is the ultimate law of the land, and the only time a judge can dispute statute is when it contradicts another more important statute. The United Kingdom is the only country in the world with a principle quite like this because rather than being a principle consciously created and established, it arose out of the miasma of history, and effectively discovered by Sir William Blackstone in the eighteenth century when he wrote his Commentaries on the Laws of England.
One of the reason this principle was able to be sustained however was that Parliament represented the melting pot of every branch of the constitution: the executive, the legislative and the judiciary. Now that the body that constitutes the ultimate part of the judicial process, the Law Lords, have been moved from the House of Lords to the Supreme Court across Parliament Square, it means the judiciary is no longer integrated into the legislative process. The main reason why judges had to respect the supremacy of statute was because, by sitting in the House of Lords, they had in effect subscribed to the legislation.
It is important to emphasise that in no sense is the importance of an independent judiciary being questioned. In 2004, Lord Bingham, one of the most important judges of recent times, was approached to meet Charles Clarke, then Home Secretary, after the Law Lords ruled that the Anti-terrorism, Crime and Security Act 2001 was incompatible with the Human Rights Act 1998. Lord Bingham refused to meet, recognising that it was unlikely to be purely social in nature, and even if it were, it was inappropriate for a judge to liaise with a minister over whose legislation he may have to pass judgment. Lord Bingham’s decision was entirely right and proper in this situation.
But there is a difference between Parliament and an individual minister of the Crown. Parliament is the democratic body that represents the will of the people. As such, judges are expected and required to listen to Parliament, and to override other common law principles if it is what Parliament decides.
With each and every step the judiciary takes to distance itself from Parliament, this principle becomes more obscure, and Parliament’s claim to legal supremacy increasingly suspect. It makes the road towards judicial supremacy ever shorter, and the time when legislation is subject to judicial veto, just like in the United States, ever nearer.
Whenever this is threatened, no matter how small the change, it must be resisted at all costs; and retaining executive oversight of the Supreme Court is just one more of those battles.