Earlier this month, I gave the UK Supreme Court Yearbook Annual Lecture. Delivered in Parliament in Committee Room 1 – the room in which the law lords used to hold hearings – it was based on my article in the Yearbook. The article was titled ‘Parliament and the Courts: Strangers, Foes or Friends?’ It built on an earlier article of mine, published in the Asia-Pacific Law Review, that focused on the relationship in the context of human rights.
In order to make sense of the relationship between the courts and Parliament, I advanced three models of judicial-legislative relationships. (I mentioned these in an earlier post on my APLR article.) The first is the respective autonomy model. Here, there is no notable or sustained relationship between the legislature and the courts. They are essentially strangers to one another. The second is the competing authority model. Here there is a relationship between the legislature and the courts, but it is an adversarial relationship. The third is the democratic dialogue model. Here there is a relationship between the legislature and the courts, but it is not an adversarial one, but one of constructive engagement. The two exist as friends, or at least in a relationship of comity. There is a case for both to be involved, especially in systems where courts can only deal with cases and controversies brought before them.
Historically, the relationship was closest to the first model. Constitutional changes – membership of the EU, devolution, and the Human Rights Act – have created a new and more prominent role for the courts, one in which they render judgments that can be, and in some cases certainly have been, politically contentious. The changes have induced the need for dialogue with Parliament and the executive. The dialogue with Parliament has potential value in creating an ally to resist executive encroachment in areas within the remit of the courts. The position of the House of Lords has been a continuing element in appreciating the role of the courts and in continuing to provide a means by which the courts can speak to parliamentarians (no longer through the floor of the House, but through committees), both formally and informally, and serve as a buffer should the relationship between the courts and the executive take on the characteristics of competing authority.
There has been a shift from the first to the third model. I developed this argument in the article. It is also a view shared by the President of the Supreme Court, Lord Neuberger, when giving evidence to the Constitution Committee. The relationship may, though, come under threat if the Government brings forward a British Bill of Rights. If it supplants rather than supplements the Human Rights Act, then there may be some tension in the relationship. Another case of watch this space.