“There is a principle in the judicial system that sentences must be proportionate”: it seems to me that what is “proportionate” is currently a matter of opinion for judges, what the legal establishment wanted and knew it would be, but should not be. Of course, this time there is no question of a violent revolution, but the principle deserves to be reaffirmed. Courts should decide cases without fear or favour, as judges have sworn in. But this does not mean that Parliament, the ultimate repository of sovereignty, does not have the right to amend the law in response to its decisions. And, as the Osborne case shows, it is sometimes imperative that Parliament do so. This does not mean that a government with a legislative majority should try to reverse all the causes it loses through legislation. Much will revolve around the details of the decisions that the government wants to overturn from Parliament. But at the end of the day, it`s up to our elected officials to say if they think the courts have done something wrong, or if they have a different view than the courts of what the law should look like. In doing so, they would reaffirm the principle of parliamentary sovereignty, “the fundamental primacy of our Constitution.” Democratic autonomy requires nothing less. The legal establishment has spent decades influencing our laws to align them with their unrepresentative views at the expense of parliamentary democracy. This chapter discusses the law and the interpretation of the law, and then draws some conclusions about the role of the judiciary.
The main premise is that the interpretation of the law can be analyzed in two different models: the agency model and the dynamic model. It describes the agency model and takes a brief detour into the rule of law. It then looks at the dynamic model and examines the very liberal approach to the interpretation of legislation under section 3 of the Human Rights Act 1998. This contrasts with the courts` more cautious approach to whether they should ever go beyond Strasbourg jurisprudence, known as the “point of consideration.” The evolution of the dynamic model is one of the factors that has led to a debate about whether judges now have too much power. Not so sure. Remember how you tried to prorogue Parliament so that it would not sit and could vote for Brexit, perhaps the most monumental decision since 1945? There was no majority for Johnson`s overthrow. But if Johnson hadn`t been afraid that Parliament would make the wrong decision, he wouldn`t have had to stop them from voting. With respect to other forms of liability, the “subjudice rule” prevents pending cases from being discussed in Parliament, but subject to this, the decisions and conduct of each judge may be mentioned in the debates of both Houses of Parliament. However, this does not mean that judges are accountable to Parliament for their decisions in certain cases, unless Parliament can pass laws to reverse the effect of a decision or to change the law as established or interpreted by a judicial decision. In saying this, I am not dismissing the whole article: there is, of course, too much political power, even in democracies, and there is also such a thing as legal activism, in which judges intervene in the good work of elected representatives. But the above remark is too simplistic and cannot justify Parliament`s power to override the courts, and certainly not in cases where populist pressure on elected officials would lead to perverse results.
A useful context, but at the end of the day, no judgment can bind Parliament as much as Parliament binds future parliaments. Parliament is therefore already in a position to legislate in response to a court decision. It is not clear why specific legislation is needed to ratify Parliament`s powers to this effect. That suggests that the bill would give that power to the government, which is a very different proposition. I do not think it should be a practice for a government to overturn court decisions on the grounds that the current minister does not agree. If the minister thinks Parliament would share his disagreement, there is a clear path to legislate – but he still has to move in that direction. The judiciary should enforce laws created by parliament, and governments should be subject to their decisions, not just give up when they lose. When a government has a large majority, this may seem a bit sophistry – but it ensures that all MPs have a chance to speak, just as the public has a say in MPs` re-election prospects. Never mind that “a government with a legislative majority tries to overturn all the causes it loses.” What matters is whether she is able to do it, without being embarrassed by someone else. And, apparently, the government is now taking the power to do so, without having to worry about getting laws passed by Parliament.
As we have seen with Brexit, a government with a legislative majority can act openly against the will of Parliament if it is politically expedient. The principle that the government overrides the courts seems more appropriate for the People`s Republic of China than for Britain. Another important difference is whether a judge who appears before a panel does so in his or her individual capacity, is appointed on the basis of his or her particular experience or expertise, or represents the judiciary as a whole. Since the reforms introduced by the 2005 Constitutional Reform Act, committees have become increasingly interested in the latter type of appearance. A parliamentary committee may be an appropriate forum for judges to advise on current issues in the administration of justice and to advise on appropriate matters. More recently, the Supreme Judiciary has responded to invitations to comment on the establishment of the Ministry of Justice. Imagine this scary scenario. An unpopular minority government, which lost the referendum in the last general election, is enacting laws to overturn a unanimous decision by the UK`s highest courts.