There have been debates as to whether the judiciary of various nations should adopt a strong or weak judicial review system to protect rights that are set out in various Constitutions, and Bill of Rights. What should be noted is the meaning of strong and weak judicial review, which type the United Kingdom falls under. The purpose of the Human Rights Act 1998 is to protect human rights, in accordance with English law. Due to Brexit, the requirement for British domestic rights to be observant of the ECHR will cease to exist meaning there might be a potential Bill of Rights implementation in the future.
There is a stressed requirement for an independent and impartial judiciary because without these two important principles, judges would not be able to uphold the rule of law and having the judiciary wield such power to strike down legislation would be considered undemocratic.
Strong judicial review is whereby the courts have the authority to decline to apply a statute in a particular case (even if it plainly applies) or to modify the effect of a statute to make its application conform with individual rights. In the United States, strong judicial review prevails because they have the power to strike down unconstitutional law as the Supreme Court is the highest court in the land, and the judges are allowed to interpret the law based on their own understanding, thus the importance for an independent and impartial judiciary where strong judicial review is involved as it makes rights-based decisions for the people, not with them.
Weak judicial review is where the courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it (or moderate its application) simply because rights would otherwise be violated. In the United Kingdom, courts may review a statute with a view to issuing a ‘declaration of incompatibility.’ Judicial review is weak in the UK meaning even if the judges do not agree with the legislation, they cannot override it which is a positive notion to retain because this ensures the judges will not act in selfish interests, and democracy will be protected.
What will be discussed is Ronald Dworkin’s take on judicial review and the democratic principles that surround it, and Jeremy Waldron’s opinion on judicial review will be discussed as well. A question to bear in mind is whether the legislation is there to protect the people if the judiciary can override it. Looking at this from an objective point of view, if judges could override legislation, would they not be acting in their own selfish interests?
Dworkin and Strong Judicial Review
The first view that will be discussed is that of Dworkin, who is in favor of a strong judicial review system. He wants a community whereby the rights of individual members are respected; there is no better way to achieve this than through strong judicial review. With strong judicial review, the power lies within the judges, of whom Dworkin claims citizens should be able to trust because they act in the best interests of the democratic society.
The view he takes on judicial review is that it is not anti-democratic reason being the judges that are making these decisions are independent and impartial people, who are not influenced by various factors of the legal realm such as pressure groups, the media, voters, to name a few. He sets out two concepts of democracy in which a constitution should be interpreted to that will be further discussed: majoritarian, and constitutionalism democracy.
In a majoritarian democracy, Dworkin suggests that the political processes that the courts adhere to:
Should, at least on important matters, a decision be reached by a majority of or plurality of citizens favors, or would favor if it had adequate information and enough time for reflection.
Here, the people accept that democracy is a concept whereby the government is run by the people for fair outcomes. The issue that is faced is that a majority of citizens will reach a decision in relation to rights would create a minority because in society where there is a majority, a minority must always exist. A system that allows the majority to make decisions about rights is not considered a true democratic society.
The second concept of democracy per Dworkin is that of constitutionalism. He defines this democratic concept as:
The collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect.
There is a democratic element to this concept in a sense that individuals’ rights will be equally protected and respected therefore ensuring that both minorities and majorities have been considered. However, these collective decisions have brought about another phenomenon that Dworkin refers to as ‘moral membership’. There are two conditions of this: structural and relational.
Firstly, in relation to structural moral membership, Dworkin believes that a community as a whole must have some sort of shared culture in order to be considered as a political community. The second is a relational moral membership whereby it is described how an individual must be treated in a community on a day-to-day basis in order that he or she be a moral member of the community. It should be noted that an individual who is considered to have a relational moral membership has a part in collective decision making, has a stake in what happens, and the individual has independence from the decision that is made. Dworkin argues that a concept of democracy will not exist unless the conditions of moral membership are met.
To conclude Dworkin’s opinion, if the judiciary makes the appropriate decision, democracy will continue to prevail. The qualm that I have with this is that even though an independent and impartial body such as the judiciary can make decisions about rights because they are not influenced by outside factors, this cannot be considered democratic because the power in the people is lost when the judges are given the final say on decisions. From researching Dworkin’s take on democracy and protected rights, I can securely claim although Dworkin does have a point that the judiciary should have the final say in how the law should be interpreted, and they have been given the responsibility to protect citizens’ rights, the meaning of ‘democracy’ is stripped because the people do not have a say in decisions that are made in court.
Waldron and Weak Judicial Review
In contrast, Jeremy Waldron disagrees with Dworkin’s opinion on strong judicial review. The UK operates under a weak judicial review of legislation (courts have some power to comment on compatibility of legislation with fundamental rights but cannot invalidate legislation if it is found to be incompatible). A question arises: who will have the authority in determining the disagreements over rights, and who will have the answers? If a person’s answer is the judiciary, then the notion of democracy becomes warped because judges are unaccountable for the decisions they make for society; when they decide, it is binding (in a constituency like the U.S.) therefore the requirement that a democracy requires the people’s voices be heard becomes invalid since they do not have the final say in decisions.
First, it would be ideal to note the four assumptions of a core case society where democracy and decisions about rights are discussed. The first assumption is one of a functioning democracy. This is where the assumption is that the institutions, procedures of legislation are kept under review, and this democratic society has a broadly democratic system with universal adult suffrage, representative legislature; one that is accustomed to dealing with difficult issues that reside in justice and social policy.
The second assumption is one of a functioning judiciary whereby society has a well-established and politically independent judiciary (which is essential as judges who make decisions on individuals’ rights must be impartial). This functioning judiciary is to settle law suits and uphold rule of law. In addition, the assumption is one of the courts being unelected, and they respond to claims brought by litigants, not act on their own motion. Lastly, the assumption is there is a hierarchy of the court system.
The third assumption is one to a commitment of rights (belief in individual and minority rights). The assumption is that society accepts individuals are entitled to certain liberties they should not be denied simply because it would be more convenient for the most people to deny them. They believe minorities are entitled to an obdurate degree of support, recognition that is not necessarily guaranteed by their numbers or political weight (thus, minority) To summarize, the assumption is one of society cherishing the rights to an extent that has led to the adoption of a written bill or declaration of rights (Human Rights Act, U.S. Constitution etc.), and these statutory instruments have been enacted to embody society’s commitment to rights.
The fourth assumption is a disagreement about rights. We would assume there is a substantial dissensus as to what rights there are and what they amount to. These rights define major choices that any society must face in the context of moral and political debates for example, abortion, regulation of speech, etc. An assumption that people may have different conceptions of the same right, and if there is a Bill of Rights, we assume it bears on, but does not resolve the issues at stake in the disagreements.
The theory of who has authority will be discussed, and two reasons that need to be considered in regards to designing a decision-procedure for settling disagreements about rights. The first reason that will be considered is the outcome-related. This is where the decision procedure is designed in a way that will ensure the appropriate outcome will be administered and if this does not happen or if the wrong answer is given by the courts, rights are violated. Waldron says outcome-related reasons “focus on the degree to which a decision procedure ensures appropriate outcomes, i.e. good, right, or just.” The issue with this is they are questionable because the focus is more so whether the decision process has produced a good outcome, which is not the case. These reasons are still acknowledged and are important, but they do not establish a clear and concise case for judicial review.
The second reason that will be considered is a process-related reason. Here, some person makes or participates in making a decision that stands independently of considerations about the appropriate outcome. To apply this reason to everyday situations, an example of a process-related reason is the right to vote, and the right to have one’s vote counted even when others may disagree with that person says. Essentially, the focus is on individuals being able to participate in a decision procedure i.e., elections for the legislature. A way of assessing a process-related decision is by asking whether the decision procedure had included the entities and individuals who are eligible to participate in having their voice heard in the decision-making process.
He goes onto say in the real world, the need for settlement confronts us in the legislative arena. Essentially, the legislature drafts new laws and methods to protect rights but in doing so, it also creates an issue of rights. A method that he paints a picture for this statement is the legislature may create a law in regards to marriage formalities, minimum working hours, or other aspects of individuals’ lives that affect rights. Waldron states:
But what happens is that someone notices its application happens to raise an issue of rights and it is in connection with that issue. Then, is the legislation to be applied according to its terms or not?
By posing this question, Waldron has pointed out the need for settlement where citizen’s rights are involved, and the appropriate body to decide these rights issues are the legislative branch.
Waldron’s view is that process-related outcome is more important in a core case society (in which the four assumptions are met). His take on this outcome is that rights-based disputes should be settled in the legislature, and strong judicial review should not be a factor. The legislature should oversee and determine the compatibility and validity of the law because the legislature is an elected body and are the representatives of the people (concept of democracy rearing its head). The judiciary on the other hand are an unelected body therefore they lack authority where decisions about rights are made. The reason for this belief is because the legislature would be able to debate on the issue and would deal with the rights more sternly as they are acting in the best interests of the people.
To make the point succinct, it should be noted that where the courts are involved, judges cannot have the same response as the legislative because the judiciary has been set in place to interpret the law, it is neither their right nor responsibility to make decisions of fairness. This is so that the judiciary continues to perform the function that was intended for them which was to uphold and protect the law, not deem incompatibility or ensure fairness.
My Opinion
To answer the set question, I do not think the courts should be given the power to override legislation. The reason for this opinion is because the U.K. currently has a weak judicial review system, and it is satisfactory particularly since judges are unelected. Since this is so, they should not be given the power to override legislation otherwise this would invalidate the democratic system set in place for the U.K. Judicial review is suitable for rights in a sense that if a piece of legislation conflicts with the rights set out in the Bill of Rights, it should be scrutinized (as Waldron mentioned that the constitution should be scrutinized, not amended) however, in relation to democracy, judicial review is not ideal because it takes away the element of a true democracy. There would essentially be a tradeoff; trade true democracy in a society to have rights protected when declared incompatible with the Bill of Rights.
From reading Waldron’s Core of the Case Against Judicial Review, an impression can be drawn from it: Waldron believes in a weak judicial review system, but also allowing the legislative branch to have the power to decide the matter on rights-based cases. For example, in his works, he mentioned:
It seems to me that legislatures are much better positioned to mount an assessment of the significance of an individual case in relation to a general issue of rights that affects millions and affects them in many different ways.
Here, he is pointing out that the legislative should have more authority and are better equipped in dealing with rights-based decisions, and individuals’ rights, which in turn would be appropriate as even if the judiciary are the body whom interpret the law and the legislative make the law. In a democratic system, it would be appropriate for the legislative to make decisions for the citizens because they would have more faith in the legislature because they are aware that the decisions that would be made would be in favor for the people. Although this may not be true in reality, the legislature is just as corrupt as the judiciary may be. From an idealistic point of view the legislature should be the rightful decision-makers where rights are involved.
Furthermore, Waldron makes a point against judicial review:
Even if we concede that vexed issues of rights should be decided by these nine men and women, why should they be decided by simple majority voting among the Justices? Majority Decision is appropriate for persons who have a moral claim to insist on being regarded as equals… But I cannot see any moral basis for this claim in the case of Supreme Court Justices. They do not represent anybody. Their claim to participate is functional, not a matter of entitlement.
This excerpt is spot on with my opinion. The fact that Justices can vote on important rights-based issues, especially those that can involve an entire community using the majority decision procedure is inappropriate because of their status in the governmental system. The judiciary are independent; they are unaffected by the pressure that the legislature may be under therefore they can decide on matters without a second thought as to how this decision might appear undemocratic. On the flip side, this argument could be a reason for Justices to have that layer of protection of independence however since the type of society that is being discussed is democratic, it is inappropriate for judges to make decisions on rights since they do not represent anyone. From reading both Dworkin and Waldron’s views, the problem, and or question, that has remained is one of how unelected judges have authority to override legislation which was drafted by an elected body (legislature), who are the very body that represent the citizens of a state.
In conclusion, Dworkin’s opinion on judicial review is one where individual rights are protected and the best method for achieving this is through judicial review. He claims the judiciary is set in place to interpret the laws and therefore, the citizens of a democratic society should be able to trust that the judges will protect their rights, and strike down legislation that would infringe on the rights that are set out in the Bill of Rights. Waldron’s outlook on judicial review is one where the courts should not be given the authority to strike down legislation because they are an independent body and if they are given the power to make decisions about rights involving a community, the essence of democracy would become tainted. He goes onto note that the branch of government that should have the authority to make decisions on rights-based cases would be the legislative because they are representatives of the people thus, the democratic principle being valid. My sentiments lie with Waldron; the courts should not be allowed to strike down legislation.
15.1.2017