A New View on United Kingdom Judicial Review

In the swirl of newsworthy events in the United States, it is easy to overlook things of import happening across the pond.  But there has been a significant recent development in British law.

Ever since the United States Supreme Court case Marbury v. Madison in 1803, our courts have exercised the power of judicial review.  Through the years, our Supreme Court has ruled on the constitutionality of laws, lower court rulings, and presidential actions.

Great Britain followed a different path.  It has no written Constitution to be interpreted by its Supreme Court.  Instead, a set of documents, traditions and conventions affirm that a valid act of Parliament cannot be questioned by the courts.  Parliament, not the courts, has the final word. 

Photo Credit: University of Illinois College of Law

However, the Supreme Court of the United Kingdom has now condemned an action taken by Prime Minister Boris Johnson.  Some legal scholars are calling this the United Kingdom’s Marbury v. Madison moment.

The Supreme Court case addressed the legality of the Prime Minister’s prorogue, or suspension, of Parliament.  Since his election, Boris Johnson has been trying pull Britain out of the European Union.  There has been stiff and loud opposition to Brexit, and the Prime Minister decided things would go better by trimming the period for parliamentary debate.  So, he advised Queen Elizabeth to prorogue Parliament.

The Queen of England accommodated her Prime Minister’s request.  Under the rules and conventions of her office, she may have had little choice.  But the prorogue was appealed in two separate cases that were taken to the United Kingdom’s Supreme Court.

The first case came from the High Court of England and Wales.  That court determined  that the challenge to prorogue was a political matter beyond judicial jurisdiction.  But the second case came from the supreme civil court of Scotland, which found that the matter could be judicially addressed.  The Scottish court further found that, as the purpose of the prorogue was to stymie Parliamentary scrutiny of governmental action, it was unlawful. 

The United Kingdom’s Supreme Court had to determine who was right, and for what reason.  This was a big case, and the decision was carefully structured.

First, the Supreme Court addressed whether it could even consider the lawfulness of governmental acts.  Quoting from the 1611 Case of Proclamations, it determined that it could: “the King (who was then the government) hath no prerogative but that which the law of the land allows him.”  The Supreme Court then had to decide if it could exercise review over this particular governmental power, the power to suspend Parliament.  And here, the Court determined that it had the authority to rule on the limits of power in government, including the power to prorogue. 

Finally, the Court noted that Parliamentary sovereignty is undermined if the exercise of authority is used to keep Parliament from carrying out its legitimate functions.  Since the Prime Minister’s suspension had that effect, his advice to the Queen to prorogue Parliament was indeed unlawful.

The Court’s finding that the Prime Minister acted unlawfully was a strong rebuke, and Boris Johnson said that he profoundly disagreed with it.  But he also said: “Let’s be absolutely clear: we respect the judiciary in our country.”  Respect for the judiciary and the Rule of Law ensures fair play, due process, and proper oversight of governmental actors.  As United States President John F. Kennedy once said, “Certain other societies may respect the rule of force; we respect the rule of law.”