AbstractAt the end of the Twentieth Century, as the theory of legalism in the common law lost its grip, it had been suggested that the idea of Parliamentary Sovereignty was an outdated model for British constitutionality, and that the practice of Judicial Activism should be permitted to expand. Based upon this premise, this thesis proposes that the Courts should adopt the legal title of Sovereign, based on evidence of their actively both making and overturning laws and statutes in the United Kingdom.
Based on accounts gathered from case law from both the United Kingdom and other jurisdictions, and interviews with Judges of the Supreme Court of the United Kingdom, it shall be shown that Parliament’s relationship with the courts has changed radically since Parliamentary sovereignty was first popularised, and that in the United Kingdom Parliament is subject to the will of the judiciary, and not the other way around.
However, this thesis will also demonstrate that this system is not without its own flaws. Examples of judicial corruption, widely criticised decisions and a lack of democratic transparency in jurisdictions can be found across the world; all tarnish judicial sovereignty as a viable alternative to that of Parliament, and erode the public’s trust in the Courts to protect and defend the ideals of justice and the Rule of Law. Without these principles, the courts become a black-robed agency of the Government or worse, a publicly funded old-boys network that principally protects its own interests and its grip on authority.
Though the ideals that the courts claim to uphold are virtuous, history has shown the worrying consequences of Judicial complacency as Governments ignore the rule of law and the concept of Justice, most prominently observed in the dictatorships of Nazi Germany and the Soviet Union. If Judicial Sovereignty is to survive, it must learn from, and overcome, the mistakes of the past, and harmonise their role as appointed public figures with ideas of popular democratic government. To do this, it must accept Parliament’s rule-making capacity, but doing this in a way that preserves their Legal Sovereignty is the central challenge the Judiciary must face
|Date of Award||2014|
|Supervisor||Richard Ireland (Supervisor) & Noel Stanley Cox (Supervisor)|