UK Constitutional Law Association

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Douglas Edlin: Will Britain Have a Marbury?

edlind Marbury v Madison is the most famous judicial decision in US history, written by the most important judge in US history.  According to the traditional understanding, Chief Justice John Marshall brilliantly side-stepped a looming political clash between former President John Adams and newly elected President Thomas Jefferson.  In doing so, Marshall declined the additional power Congress attempted to confer upon the US Supreme Court through section 13 of the Judiciary Act of 1789, while simultaneously claiming for the Court the much more important authority to review the constitutionality of federal legislation and government action.  It is a terrific story.  As is frequently the case, however, there is more to the story.  Marbury did not actually emerge from the legal ether and the political acumen of Marshall as the deus ex machina of US constitutional politics.  For years prior to Marbury, courts had claimed and employed the authority to review legislation for conformity with fundamental principles of law.  Nevertheless, if we consider Marshall’s decision in relation to the US rule of recognition, the conventional understanding is, in some meaningful sense, more important than the historical specifics.  US legal and political officials have long viewed the Marbury ruling as the established legal basis for the power of judicial review, and officials generally comply when the Court determines that their actions have violated the US Constitution.

Now that the United Kingdom has a Supreme Court that is separated formally and physically from Parliament, I wonder if the UK Supreme Court will, sooner or later, issue an opinion – like Marshall’s in Marbury – in which it expressly claims the authority to review primary legislation and ensure its conformity with the British constitution.

Does Britain Need a Marbury?

As with Marshall’s opinion, if the UK Supreme Court writes its Marbury, that decision will not appear from nowhere.  For one thing, of course, prominent British judges such as Lord Justice Laws, Lord Justice Sedley, and Lord Woolf have suggested for some time in extra-curial writings that the doctrine of absolute parliamentary sovereignty may no longer be the only or the best understanding of British constitutional principles.

Moreover, and more to the point where the UK rule of recognition is concerned, a shift in official attitudes and behavior may be occurring, or may already have occurred.  In decisions such as Anisminic, Pierson, Simms, Belmarsh, Jackson and Cart, the courts have indicated that the meaning and force of the British constitution cannot be determined by Parliament alone.

In fact, in the first appeal heard by the newly constituted Supreme Court of the United Kingdom, Ahmed v H.M. Treasury , the Court considered the scope of authority delegated to (or claimed by) the Treasury under the United Nations Act of 1946 with respect to combating terrorism by freezing the assets of suspected terrorists.  Purporting to act under the authorization of the 1946 Act, the Treasury froze the assets of a number of citizens and residents of the UK.  According to the Court, the case raised a series of significant issues that “concern the separation of powers.”

A critical issue in Ahmed was the contention that § 1(1) of the 1946 Act,  allowed the Treasury to impede the fundamental rights of individuals while simultaneously preventing those individuals from questioning the legality of the government’s actions in court.  As Lord Mance put it, “At common law, the submission is that s 1(1) cannot be taken to have contemplated or permitted orders which would interfere with, or at all events violate, fundamental rights . . . The real issue is whether s 1(1) permits the making of an order which interferes with such rights on a basis which is immune from any right of challenge on the merits before a court or other judicial tribunal.”  (Ahmed, [2010] UKSC 2, [238], [239]).

According to Lord Mance (and several other members of the UK Supreme Court), the 1946 Act could not be read to permit the Treasury to freeze personal assets and to preclude judicial review of the Treasury’s actions – with the practical effect of interfering with individuals’ fundamental rights of movement, property, and privacy, as well as their right of access to the courts – so that the legality and legitimacy of the Treasury’s actions could functionally be immunized from judicial assessment:

 The basic common law right at issue on these appeals is [the appellants’] right to access to a domestic court or tribunal to challenge the basis for including their names in the list of persons associated with Al-Qaida or the Taliban and so freezing their property with the severe personal consequences already indicated     . . . The words of s 1(1) are general, but for that very reason susceptible to the presumption, in the absence of express language or necessary implication to the contrary, that they were intended to be subject to the basic rights of the individual . . . As an extreme form of restriction of individual liberty, internment without the right to challenge its basis before any court or judicial tribunal would, if it were to be possible at all, at the least require primary legislation. . . . It is a matter which one would expect to be subject to judicial control, before or after the designation.  So here, in my view, s 1(1) was and is an inappropriate basis for the Al-Qaida Order, freezing indefinitely the ordinary rights of individuals to deal with or dispose of property on the basis that they were associated with Al-Qaida or the Taliban, without providing any means by which they could challenge the justification for treating them as so associated before any judicial tribunal or court . . . (Ahmed, [2010] UKSC 2, [246], [249] (Lord Mance) (citation omitted) (emphasis supplied)).

This passage suggests (in the italicized language) that certain acts of the government, in the absence of any possible judicial assessment of their legality, are so fundamentally contrary to the principles of the British constitution that they would not be sustained by the courts and cannot be achieved by the government.

In Ahmed, the UK Supreme Court may already have said that the constitutional status of certain common law principles cannot be altered by statute.  If this is becoming the prevailing judicial perspective, the UK rule of recognition and the UK constitution may require a somewhat more complicated formulation than “whatever the Queen enacts in Parliament is law.”

Does Britain Want a Marbury?

In response to the notion that the UK rule of recognition has already shifted, traditionalists would argue (as Jeffrey Goldsworthy does in his most recent book) that a rule of recognition can change only through the actions and beliefs of all senior officials of the system, not just judges.  And since the judges cannot alter the rule of recognition by themselves, and since we do not yet see a consensus among all legal and political officials in Britain with respect to the courts’ authority to exercise judicial review over parliamentary legislation, sovereignty remains the cornerstone of the British constitution and the core of the UK rule of recognition.

In addition, proponents of sovereignty might point out that none of the cases I have mentioned contains an explicit assertion of a Marbury-style form of judicial review.  Perhaps this authority can be found in the subtext of these opinions, by those who seek it, but subtextual and inferential and indirect references to this judicial authority are not enough.  For the UK rule of recognition to change, the courts must claim this power for themselves, as Marshall did.  Then Britain must see what the reaction of its officials is to that ruling.

For defenders of parliamentary sovereignty as the constitutional orthodoxy of British law and politics, the answer to this question is no.  A thousand times, no.  Whether in terms of history and tradition, or in terms of theory and practice, sovereignty’s defenders believe an (explicit) assertion by the courts of co-equal institutional and constitutional authority will threaten the solid foundations on which centuries of British law have been built.  And in return Britain will be left with the unconstrained judicial activism of the US courts.

The concern that a British Marbury would inevitably supplant traditional parliamentary sovereignty in the UK with US-style “judicial supremacy” is widely shared, and not just by proponents of traditional absolute sovereignty.  In a recent post on this blog (2 April 2013), Dawn Oliver noted that the US Supreme Court has failed to prevent some of the worst political and human rights abuses in US history.  Professor Oliver’s point is beyond dispute.  And so Britons might reasonably conclude that the Supreme Court of the UK should not presume to fix what is not broken.

The problem is that governments do occasionally break things.  That is why decisions such as Ahmed and Belmarsh arise.  Professor Oliver’s well-taken observation about the historical and theoretical and practical differences between a presidential model of government contained within a written constitutional framework and a parliamentary model that has evolved through an unwritten constitutional tradition means that the UK Supreme Court will never transform itself into a reproduction of the US Supreme Court (even when it or its predecessor writes opinions such as Ahmed and Belmarsh).

Should Britain Have a Marbury?

So maybe the UK does not want or need a Marbury.  Should the UK Supreme Court write one, anyway?  Fig leaves and fairy tales may have their place, but a Supreme Court that no longer sits in Parliament’s building, a separate and independent institution in all respects, which is seen that way and which sees itself that way, should be able to say that it has the authority to invalidate governmental acts that violate constitutional principles.  The rule of recognition is defined by what the officials of the system do.  One of the most important things judges do as officials of the system is write opinions.  Professor Oliver is right to point out that the US Supreme Court did not prevent or correct important abuses of power throughout US history.  She is also right to note that it did correct some.  The UK courts have, too.  The time may have come for the UK Supreme Court to say that is what the UK courts are doing, when that is what they are doing.

The concern raised by Professor Oliver, which is shared by defenders of sovereignty such as Professor Goldsworthy, is that “A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.”  But as Professor Oliver reminded us, many of those problems in the US result from distinctive aspects of the political process in the US (i.e., a sometimes ambiguous written constitution that created a federal and presidential system of government, and a more aggressive and less civil political culture), which are not present in the UK.  It seems unlikely that the UK Supreme Court’s explicit refusal to countenance governmental abuses of power would change these other aspects of British government and politics.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.

Suggested citation: D. Edlin,  ‘Will Britain Have a Marbury?’  UK Const. L. Blog (7th June 2013) (available at http://ukconstitutionallaw.org)

5 comments on “Douglas Edlin: Will Britain Have a Marbury?

  1. Dr. Cristina Parau
    June 8, 2013

    The problem with this argument is that the case cited (Ahmed v HM Treasury) is a boilerplate instance of judicial restraint of the Executive power in the latter’s unilateral interpretation and enforcement of Acts of Parliament — over that the courts have always had jurisdiction.

  2. Doug Edlin
    June 10, 2013

    Cristina,

    Thank you for your comment. Ahmed is not the only case cited in the post, which is important to the point I am trying to make. Of course, there is no specific precedent to cite in which the UK Supreme Court explicitly claims judicial authority to review the constitutionality of parliamentary legislation. That’s the motivation behind the post’s central question. That’s also the importance of my reference in the post to other cases such as Belmarsh. Defenders of sovereignty will continue to emphasize (as I say in the post) that these cases do not establish US-style judicial review unless and until the UK Supreme Court does explicitly claim that authority. Still, as an indication of a possible shift in judicial attitudes, at least as I read the language from Ahmed quoted in the post, the UK Supreme Court seems to suggest a view of constitutional constraints on the power of government beyond the precise facts and holding of that case.

    Doug

  3. Dawn Oliver
    June 24, 2013

    My post, to which Douglas Edin’s post is a response, is part of a longer piece entitled ‘Parliament and the Courts: A pragmatic (or principled) defence of parliamentary sovereignty’ which will be a chapter in a book of essays ‘Parliament and the Law’ to be published by Hart Publishing in September 2013. The rest of my argument in support of parliamentary sovereignty and against the UK courts assuming a power to strike down provisions in Acts of the UK Parliament is, briefly, as follows:

    The present system relies on a tradition and culture of comity between the courts on the one hand, and Parliament and the Executive on the other hand. This comity, which involves mutual respect and forbearance between institutions, would be destroyed if the courts struck down an Act. The executive might then feel justified in refusing to obey court orders. It might have strong public and press support in doing so. The court might find that it does not have the powers to enforce decisions against a determined executive coercively. Eventually the court would have to reverse the decison and concede that it has not strike down power. Courts would lose authority as a result.

    Government might retaliate by politicising appointments and promotions, intervening in the allocation of cases to judges, deployment of judges etc. This would be bad for the rule of law and the functioning of the judicial and constitutional system. That amounts to a pragmatice reason for the courts to uphold parliamentary sovereignty.

    If the UK were to adopt a written entrenched constitution granting a court or courts the power to strike down legislation, then comity would be less important and the courts would have a claim to legitimacy in exercising a strike down power. Without such a constitution their position is weak and depends on the preservation of comity.
    Dawn Oliver

  4. Toby McKinnon
    June 28, 2013

    I would like to make a few points in reply to your highly interesting article.

    First, UK courts had started to become more assertive before the Supreme Court replaced the House of Lords, indeed before the passing of the CRA, which created the new Court. You partially acknowledge this by mentioning Anisminic (1967), among other cases. There are a great number of other cases, both from the House of Lords and lower courts (eg. Laws LJ in Thoburn). Of particular interest is R (Jackson) v AG (2004). As in Ahmed, the relevant ‘bits’ in the latter case were obiter, but Lord Walker’s dictum is far-reaching: “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny” (at [159]; to similar effect, although less strongly, Lord Steyn at [102]). The point being simply that it is difficult to refer a potential development of constitutional review to the establishment of the Supreme Court. This is not to deny the potential relevance of this move.

    Second, what exactly is meant by ‘rule of recognition’? I perceive a problem in using this term, at least if it is intended to connote Hartian attributes; precisely because constitutional review in an uncodified system will require a departure from the stringent positivism which Hart propounded. How else can the substantive, normative principles of review – such as legality, democracy, accountability, transparency, natural justice – be found, applied, developed and legitimated? If, by contrast, the term is used in a more loose, Wadian sense (in which case, Kelsen’s grundnorm would be synonymous), this still begs the question in a rather tautologous manner: what would the ‘rule’ look like? Courts may review Acts of Her Majesty in Parliament subject to principles which the courts may develop in order to review such Acts.

    Third, clearly the article was concerned with a Marbury style of constitutional review. However, this is not the only form of review, and does not allow for the conclusion that judicial review of primary legislation is more suited to presidential than parliamentary systems of government. This is neither conceptually nor empirically sound. Thus, Germany is now widely regarded as one of the most liberal parliamentary democracies, and its constitutional court, the BVerfG, has wide powers of constitutional review, to the extent that it might in theory even invalidate constitutional amendments under Art. 79(3).

    Fourth, and finally, whilst I share with you in broad terms the desirability of constitutional review, there are insuperable problems. As already mentioned under point (2), the principal question is: what are the principles? That, clearly, may be judicially determined, just as courts determine the principles of judicial review of administrative action. The difference is that a high justificatory burden needs to be overcome in order to hold legislation to be ultra vires. In the US system, as pointed out by Mr Justice Scalia during a recent debate on statutory interpretation, the Constitution itself is democratically legitimated; in a way that constitutional principles in the UK – which undoubtedly exist, the issue relating simply to their alleged entrenchment – are not. Leaving references to ‘judicial activism’ and legal realism aside for the moment, this reference to a democratically legitimated legal document is of paramount importance. It is unlikely that normative constitutional principles can be so derived. Certainly, Magna Carta 1297, the Bill of Rights 1688 and certain other ‘constitutional statutes’ (to refer, once again, to Laws LJ in Thoburn) may provide indications of what principles the legal system is based upon, but they lack the constitutional superstructure that is required. As a corollary of this, what are the rules of change? The rule of recognition needs to accommodate a rule of similar importance. Unlike the German Basic Law, the US Constitution does not posit any higher-order, non-amendable constitutional law. But that, it seems, would be the consequence of giving judges in an uncodified constitutional system the power of legislative review. This disposes of democracy in favour of a judicial dictatorship, a development that is hardly desirable.

    • Doug Edlin
      July 2, 2013

      Toby,

      Thank you for your response. I agree with you in many respects, so I will try to limit myself to responding to your questions. In relation to your point about the rule of recognition, I did have Hart in mind. I am not sure what you mean by his “stringent positivism,” but I would not characterize Hart’s views in that way. So we may disagree about the theory itself. Leaving that aside, however, it seems to me that the substantive, normative principles of review are developed in a system with an uncodified constitution in much the same way that they are developed in a common law system with a written constitution. That is to say, through a dialogic process of judicial exposition, legislative enactment, and administrative and executive rule-making (and other action). Your response (and Professor Oliver’s, as well) seems to assume that the presence or absence of a written constitution fundamentally alters the institutional capacity of courts to exercise constitutional review. In Professor Oliver’s case, that surprises me, because she suggests that a written constitution in the UK authorizing the courts to strike legislation would be required before the courts could legitimately exercise that power. The problem here, though, is that the US Constitution itself does not authorize the courts to exercise that power. That is why Marbury was written. You focus on the democratic legitimacy of the US Constitution and you distinguish this from constitutional principles in the UK, which you say lack the same legitimacy (I assume because there was no historical process of popular ratification of a charter document). This is striking to me, because so many defenders of parliamentary sovereignty view sovereignty as the central principle of the UK constitution, and cite the democratic legitimacy of that principle in its defense.

      Doug

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This entry was posted on June 7, 2013 by in Judicial review and tagged , , , .
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