Lingering with intent: the UK constitutional review

The UK constitutional system is in a transitional stage (e.g. Bogdanor). In this essay, I argue that we have reached the point where we could speculate, with a reasonable margin of error, what steps the UK constitutional system will take in the near future. In particular, I will explain that external factors such as an increased demand for accountability for Parliament are likely to have the effect of enlarging the level of constitutional scrutiny on primary legislation. A series of recent statutory reforms, which include the Human Rights Act 1998 (hereafter HRA), the Constitutional Reform Act 2005 (hereafter CRA) and the devolution settlements, have transformed UK parliamentarism. Some authors, such as Lord Mance, speak about a ‘metamorphosis’ of the Westminster model. This position is rejected by positivist analyses of the UK constitution. Authors, such as Trevor Allan, continue to advocate positivism as the best methodological approach with which to study the UK constitution. Whilst all of these reforms include at least one section – such as 4(2) of the HRA and 27(8) of the Scotland Act 1998 – that reasserts the legislative supremacy of Parliament, a contextual analysis indicates that the constitutional system is in a state of flux. From a contextual perspective, it is possible to appreciate, for instance, the recent changes in the UK constitutional system as part of an evolution of UK parliamentarism. Most unusually, some of the UK Supreme Court judges have spoken publically about the merit of this process (e.g. Baroness Hale), and yet others appear to be holding on firmly to the lingering orthodoxy. The debate over the potential implications of the reform is not confined to the judiciary. For instance, the Conservative Party, one of the present government coalition parties, plans to reduce the judicial implications of the right to a family life, as protected for in Article 8 of the European Convention on Human Rights (ECHR), for convicted foreigners. Given the importance of the reforms that have invested the UK public law system, diverging attitudes are expected. However, their effects are likely to continue. I will explain how firstly, the idea of absolute parliamentary sovereignty has been abandoned, but some of its effects still linger, and secondly, how some senior judges and politicians aspire to establishing an autochthone ‘bill of rights’, but that they have not, for various reasons, managed to do so. Thirdly, the pressure from the judiciary (which is more to do with the present system of rights) and the demands of accountability are likely to establish, in the near future, an extensive constitutional review of UK primary legislation. The paper is divided into two sections, and is preceded by an introduction and followed by a conclusion. The first section explains the factors that influence the adoption of the culture of rights. The second section discusses an objection to the paper’s contentions