The of them. This concept differs greatly from other

The doctrine of Parliamentary Supremacy was one of the key doctrines of the UK government. It is perhaps described best by A.V. Dicey, a key proponent of parliamentary supremacy – “Parliament … has, under the English constitution, the right to make or unmake any law whatever” and “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” . While this may have been true in 1885, this essay will show that this is no longer the case –  a “body”, namely the UK judiciary, is now able to “override or set aside the legislation of Parliament” in the 21st century. Traditionally, the doctrine of Parliamentary Supremacy means that an Act of Parliament is the highest form of law in the UK. As a result, no law may be passed that goes against an Act of Parliament. Additionally, the courts are under an obligation to apply any and all Acts of Law, regardless of their opinion of them. This concept differs greatly from other countries – for example, in the USA, where, if a law goes against its Constitution, the Supreme Court may strike it down completely. However, it is clear that over the last few decades, the court’s judicial power has been increasing. Some would argue that perhaps the clearest example of this is the Constitutional Reform Act 2005. The Constitutional Reform Act 2005  had three main purposes – to “modify the office of Lord Chancellor”, to regulate “judicial appointments and discipline” and, perhaps most importantly in this context, to create a new UK Supreme Court. The Supreme Court is the highest appellate court in the UK, replacing the previous House of Lords. First, let us consider why this change was brought about. The key difference between the current Supreme Court and the House of Lords was that the Law Lords, as they were then called, were “able to become involved in debating and the subsequent enactment of Government legislation (although, in practice, they rarely did so)” . It could be argued, therefore, that the main reason for the creation of the Supreme Court was to remove the connection between the judiciary and the executive branches of government. However, the fact that in practice, the judges “rarely” became involved in any part of the executive, could signify that this change was merely a symbolic one. While no practical change came about, it symbolised a greater separation of powers between the judiciary, the executive and the legislature.The purpose of the Supreme Court is to act as the highest court of appeal in the country. It hears cases from all over the UK, however this is not its only function. Cases of judicial review are also held in the Supreme Court. For example, the case of R (Miller) v Secretary of State for Exiting the European Union  was held in the Supreme Court. This was one of the most influential cases of the past few years, and determined that, in order to leave the European Union, the executive would need to pass an Act of Parliament which allowed this. While, on one hand, many would argue that this case reaffirmed the doctrine of Parliamentary supremacy – the country would be unable to leave the EU without the express permission of Parliament, this decision clearly went against the will of the executive, who wanted to ensure a simple exit without the fear of any opposition after the general election. This clearly shows the courts’ increasing confidence when considering matters of extreme national importance. While judicial review is not able to stop the primary legislation, i.e. Acts of Parliament from being enacted, it is able to stop secondary legislation. It is also important to note that there is far more secondary legislation than primary legislation. For example, in 2016, 25 Acts of Parliament were passed, compared with 1,242 pieces of secondary legislation . It is clear, therefore, that judicial review grants the courts a lot of power with regards to scrutinising the government. One example of a recent judicial review case is R (on the application of The Public Law Project) (Appellant) v Lord Chancellor 2016 . Here, Lord Neuberger states that the Lord Chancellor planned to “introduce a residence test for civil legal aid by amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), by means of delegated legislation”. The case was brought before the Supreme Court as the Public Law Project argued that the draft order was both ultra vires, as it was “outside the scope of the power granted to the Lord Chancellor by LASPO to bring forward delegated legislation” , and that the draft order was discriminatory. The Supreme Court unanimously agreed that the order was ultra vires, as the draft was “not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO”. We can clearly see here that the court has sufficient power when considering secondary legislation, which highlights the fact that it is not “sub-ordinate” to Parliament – it has the power to make decisions contrary to Parliament’s will, using judicial review as its tool. It is possible to argue that judicial review goes against Parliamentary supremacy – while in the majority of cases, the government is under no obligation to come to a different conclusion, there are some situations, namely in cases of illegality, where a different outcome must be found. As a result, I would argue that judicial review gives courts additional power to oppose governmental decisions. Even before the 2005 Act, it was clear that courts were slowly accepting that they had more power than was previously thought. One example of this is with regards to the Human Rights Act 1998. According to section 3 of the Act, as far as is possible, courts must read all legislation “in a way which is compatible with the Convention rights” . Additionally, section 4 states that if courts cannot find a way to read legislation in a compatible way, they may “make a declaration of that incompatibility” . As a result of this Act, the courts have become far more powerful in the eyes of Parliament. Since the Constitutional Reform Act 2005, the majority of Human Rights Act cases have taken place in the Supreme Court.Although courts will always try to read legislature in a way which complies with Convention rights, this does not mean that the courts may simply ignore the text completely. It is possible for Parliament to write legislature which cannot be read in a compatible way, but this legislature must be very clear in its intentions. This concept is best described by Lord Hoffman in R v Secretary of State for the Home Department, ex parte Simms and O’Brien 1999 – “Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual” . This passage clearly shows that the only way a court will be unable to read an Act in a way which complies with Convention rights is if the Act uses “express language” to go against these rights. This has only happened a handful of times in the UK’s history, proving that the courts have gained power since 1998.Also, although it may be possible for Parliament to bypass section 3 of the Human Rights Act using “express language”, it must then face a different obstacle – section 4 of the Act. If courts are unable to read legislation in a way which complies with section 3 of the Act, they may declare the legislation incompatible with Convention rights. While the implications of a declaration of incompatibility may not be legal, its political implications make it just as powerful. While Parliament is under no obligation to amend any legislation that has been declared incompatible, all such legislature which has been declared incompatible (and has not been successfully appealed) has been amended to comply with Convention rights. This clearly shows the political impact of a declaration of incompatibility.Although the role of the UK courts will not be as influential as that of the US Supreme Court for a while, it can be argued that its role in the modern day shows similarities with other constitutional courts. For example, the German constitutional court, the Bundesverfassungsgericht, has the power to judicially review decisions, as well as the ability to declare legislation unconstitutional, similarly to the UK courts since the Human Rights Act 1998. However, a key difference between the two is that the German court may also render unconstitutional legislation invalid. This is true of other courts as well– while other constitutional courts hold legal power to invalidate unconstitutional legislation, this power is purely political in the UK. However, it must be noted that this does not necessarily make it any less powerful a tool.While I mostly agree with the original statement, there is one element I disagree with – while I believe that the courts have been taking a role more similar to that of other constitutional courts, I do not believe that this change happened “especially” since the creation of the Supreme Court. As I have previously mentioned, the change from the House of Lords and the Supreme Court was mostly symbolic, and the court was not granted any new power to oppose parliament’s decisions. In essence, its purpose is that of an appellate court, focussing on cases of national importance, i.e. important judicial review cases, and breaches in convention rights. These powers are not new – courts were able to exercise these powers before the Constitutional Reform Act 2005. Perhaps the most influential case of judicial review, Factortame No. 2 1991 , which established EU law’s dominance over UK law, was heard over a decade before the creation of the Supreme Court. As a result, I would argue that this shift in power has been gradually occurring for decades, and that the Constitutional Reform Act 2005 was not an “especially” important step in this journey away from sub-ordination.In conclusion, while the UK courts may not have the same level of power as courts have in counties such as the USA, this does not mean that they are “sub-ordinate” to Parliament. While its powers to invalidate legislature may not be legal, its political consequences render it a powerful force. I would argue, therefore, that although the Constitutional Reform Act 2005 didn’t grant any additional powers to the courts, considering their ability to challenge legislation using the Human Rights Act 1998, as well as being able to judicially review decisions of government, the UK court system is no longer sub-ordinate to Parliament, as it once was.