Tuesday, 23 March 2010

"This is what change looks like" - legal challenges to legislation - could they happen here?

The United States Congress has approved President Obama's health care reforms.  In the U.K. we have had a National Health Service since 1948 and it is taken for granted that everyone will be entitled to some health care in the event of illness.  It is now difficult for U.K. eyes to see why there is any opposition at all the President Obama's reforms but, of course, in the final analysis the opposition is based on money.  Opponents of President Obama's legislation are now saying that they will fight the reforms on constitutional grounds in the courts - perhaps even as far as the Supreme Court of the U.S.    A challenge to legislation on constitutional grounds is possible in the United States - Marbury v Madison 1803 - and the Supreme Court may rule that legislation is unconstitutional and therefore not valid as occurred in, for example, Brown v Board of Education for Topeka 1954.

Under the U.K.'s unwritten constitution, such a challenge would not be possible.  Our traditional legal position is that The Parliament of the United Kingdom is supreme and may therefore make any law it wishes and, whilst the courts are the interpreters of the law, it is Parliament which has the final say about what the law actually is.  The Human Rights Act 1998 handed to the British senior judiciary the power to make a "Declaration of Incompatibility".  This requires the judges to measure any Act of Parliament against the requirements of the European Convention on Human Rights and if the Act is sufficiently contrary to the Convention then the judges may say so.  However, it then remains a matter for Parliament to decide whether to amend the law and, pending any amendment, the legislation remains in force even if is contrary to the Convention.   Some have argued that the Human Rights Act has either "politicised" the judiciary or increased its "politicisation" but the reality is that the judges have not been given power to declare an Act of Parliament unconstitutional and they remain within their traditional role as interpreters of legislation.  They have not become legislators in their own right.

If the U.K. were ever to move to a written constitution then the constitution itself would presumably become the basis of our law and all other laws would have to be measured against it.  If that is right then the judges - especially the Supreme Court of the U.K. - would indeed become a major power in the land.  Is that what we want?  Nevertheless, there are those who argue that we ought to have a written constitution - see Richard Gordon QC The Times 25th March.

Wednesday 24th March - The Times published an interesting article on the American healthcare legislatoin.

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