Here’s a riddle wrapped up in a paradox: could judges using the power of judicial review strike down David Cameron’s attempts to curb the use of judicial review?
The British Prime Minister has complained at people exercising their right to hold the executive to account. He wants to “reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting”.
Now let us remind ourselves of the chilling threat issued by Baron Steyn, of Swafield in the County of Norfolk. In R (Jackson) v Attorney General (House of Lords case 2006) he said on the supremacy of Parliament:
“The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”
He is saying that if Parliament sought to abolish judicial review, courts would have to defy Parliament even though Parliament is sovereign. The rationale for his position is that there exists in Britain the rule of law. You know the one: the rule that says the Government is subject to the law, just like everyone else. The one the Government, and particularly the Prime Minister, David Cameron, keeps forgetting.