Wednesday, January 21, 2009

One Post on Posner on Judicial Review

One comment on Posner:

Posted by Warwick Lightfoot

"...I greatly enjoyed Richard Posner's review. What I find interesting is the way that two legal systems based on common law diverged so markedly in the 19th century. In the United Kingdom the legislature, parliament based its authority on its medieval origins as a court, hence the term 'the High Court of Parliament'. In the 17th and 18th centuries it was not absolutely clear where ultimate power was.

The common law courts had asserted their authority. In 18th century colonial cases the courts had asserted their implied right to strike down legislation inconsistent with the vires of the charters and acts setting up colonial governance arrangements. As I understand it there is no evidence of a court actually striking down an act passed by a colonial legislature. By the early 19th century it was clear that in Britain Parliament was supreme and judges did not entertain any conceits about checking the supremacy of Parliament. A doctrine later codified with such brio by A. V. Dicey at the end of the 19th century.

I have never seen a full and coherent account of how the present divergence of constitutional practice between Britain and the United States came about. Other common law jurisdictions even those that consciously modelled their constitutional arrangements on the Westminster Model tended to travel in the direction of judicial review of the sort pioneered by Chief Justice Marshall. It was, moreover, the Judicial Committee of the Privy Council sitting in London staffed by British judges that was often the tribunal that applied this judicial review. The Privy Council tested acts of legislatures from around the British Empire to see whether they were consistent with the Colonial Laws Validity Act, the British North America Act or with a colony or dominion's own constitutional legislation.

When those same judges decided cases in relation to the British Parliament, they systematically applied the doctrine of the supremacy of Parliament right up until the United Kingdom entered the EEC in 1973. It was a judicial restraint of an almost supine character that would have surprised even the strongest opponents of judicial activism. The doctrine was given one of its most vivid expositions just at the point when it was about to fade. In a case relating to a nationalised industry - British Rail - decided in January 1974. Lord Reid declared that 'the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange to anyone with any knowledge of the history and law of our constitution.' The Judicial Committee of the House of Lords over turned a decision taken unanimously by the Court of Appeal, where the Master of the Rolls Lord Denning had said that the court was not satisfied 'that the procedure of Parliament itself had not been abused and that undue advantage is not taken of it.

The passage of the European Communities Act in 1972, fundamentally changed United Kingdom law and made it inferior to European Union law under the Treaty of Rome. A momentous change swiftly appreciated by Lord Denning a very great judge and an unusually busy judicial wheel by traditional English standards.

In the first case relating to the 1972 Act in March 1974 he recognised the full magnitude of the change: 'The Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.' The House of Lords ultimately struck down a British Act of Parliament in a dispute over fishing rights, but quaintly could not bring itself to bluntly describe what it was doing. So instead the Law Lords said that they were 'disapplying' the act.

Before 1974 there had been occasional chinks in the assertion of doctrine of the supremacy of Parliament. During the First World War the Admiralty Division and eventually the Judicial Committee of the House of Lords, challenged the capacity of Parliament to set aside international law in relation to the property of enemy aliens. In the 1950s in a case relating to action brought by Scottish Nationalists students, who had sought judicial review of the proclamation of Queen Elizabeth II as the second sovereign to carry that name and title, because there had been no previous Scottish monarch of that name. Both the Law Officers in their argument before the court and the Judges accepted that Parliament in Westminster may not have the power to undo undertakings about Scottish institutions such as the Presbyterian character of the Church of Scotland enshrined in Act of Union of 1707 and in that sense the doctrine of the supremacy of Parliament is limited.

I am neither a lawyer nor a historian I have written this to encourage constitutional historians to research and explain how this divergence of judicial behaviour came about. While Blackstone drawing on Sir Edward Coke before him asserted and believed in the merits of the supremacy of Parliament I have never seen how it came to be tested and resolved that the British courts would apply it as they did right up to Lord Reid's baroque assertion of it just as it was about to atrophy.

I would like someone to rehearse the issues in the same way that Richard Posner has done in this elegant review. Or if I have missed the fact that there in an article or monograph setting this out I would be delighted to have it drawn to my attention. And in case there should be any confusion I believe that inherently political and policy matters should be decided by democratic procedures. Courts are not the most appropriate forums for resolving such argument and I generally have a prejudice in favour of judicial restraint, but perhaps in Britain we carried that notion of judicial discretion a little too far..."

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