Judicial review comes to Britain

The United Kingdom is often, and somewhat misleadingly, said to have an unwritten constitution. What is meant by this is that that country, like New Zealand and Israel but unlike virtually every other country, does not have an entrenched constitutional document possessing superior status to ordinary statutes. The absence of such a document means that Britain's courts, unlike those of Canada and the US, do not possess the right to rule whether or not a law is constitutional. Parliament is legally sovereign and cannot be second-guessed by the judiciary.

Up until 1982 Canada had a similarly "unwritten" constitution, our principal constitutional document, the British North America Act of 1867, being no more than an act of the British Parliament. We never had parliamentary sovereignty in quite the same way as it could be said to exist across the pond, but only because this sovereignty was shared among federal and provincial legislative bodies in a federal system. However, for the last nearly 23 years our courts have become increasingly active interveners in the political process, most recently handing down a reference decision on Ottawa's proposed marriage-revision legislation. This empowerment of the courts has its positive and negative features. The positive side can be seen when a government is forced to justify its treatment of citizens protected under an entrenched bill of rights, provided the court is not in the business of inventing new rights or unilaterally changing the constitution. The negative consequences are spelled out in F. L. Morton and Rainer Knopff's The Charter Revolution & the Court Party, as well as in numerous articles in First Things and elsewhere.

Despite the absence of an entrenched British constitutional document, the courts are nevertheless finding a way to review acts of parliament. This is reflected in yesterday's important decision by the nine law lords, who are the active members of the House of Lords in its capacity as the country's highest court of appeal, declaring that the Blair government's anti-terrorism law is incompatible with the European Convention on Human Rights. Although the law lords cannot invalidate a law as such, they can at least put the government of the day in an uncomfortable position. Because Britain is an adherent of the treaties of the European Union, a judicial ruling that it is not living up to these treaties inevitably carries a great deal of weight. Because of Britain's membership in the EU something like an entrenched constitutional document is coming in through the back door, along with the judicial review which it implies.

Is this a good thing? Yes and no. In theory it makes sense to empower the judiciary to check both cabinet and parliament, particularly with respect to protecting the rights of citizens. However, given that constitutional documents spell out those rights in necessarily general terms, they may leave too much room for the courts to fill in the blanks, as it were, and to find rights that were never intended by the drafters. Given, furthermore, that such rights tend to be articulated in narrowly individualistic terms, the courts can rule in ways that subvert basic social institutions, such as marriage, by reducing them to mere contractual relationships. I am inclined to think that one of the failings of the drafters of most constitutional documents, including our own Constitution Acts and the United States Constitution, is that they have imposed insufficient checks on the judiciary itself.

At some point I may post my Christian Courier column from nearly a year ago concerning the courts and the constitution.