Judiciary rising: Constitutional change in the United Kingdom

ABSTRACT-Britain is experiencing a period of dramatic change that challenges centuries-old understandings of British constitutionalism. In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. British academics debate how each element of this transformation can be best understood: is it consistent with political constitutionalism and historic notions of parliamentary sovereignty, or does it usher in a new regime that places external, rule-of-law- based limits on Parliament? Much of this commentary examines these changes in a piecemeal fashion, failing to account for the systemic factors at play in the British system.This Article assesses the cumulative force of the many recent constitutional changes, shedding new light on the changing nature of the British constitution. Drawing on the U.S. literature on federalism and judicial power, the Article illuminates the role of human rights and devolution in the growing influence of the U.K. Supreme Court. Whether a rising judiciary will truly challenge British notions of parliamentary sovereignty is as yet unknown, but scholars and politicians should pay close attention to the groundwork being laid.INTRODUCTIONFor those interested in studying constitutional design and constitutionalism, the twenty-first century has presented ample opportunity-from constitution building in Iraq and Afghanistan to the Arab Spring and related change in Egypt, Libya, Tunisia, and other states. These new constitutional processes and regimes demand attention; they present the possibility of far-reaching democratic expansion in the midst of often violent power struggles. But dramatic constitutional change can also occur in a more orderly fashion and within established democracies. In this set, no country has seen more striking shifts in its constitutional design than the United Kingdom.Staid, comfortable old Britain-with its own Glorious Revolution well in the past and a history of rights protection "from time immemorial"1-is having a constitutional renaissance.2 In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. As Anthony King, a professor of British government, has remarked, "Although few people seem to have noticed the fact, the truth is that the United Kingdom's constitution changed more between 1970 and 2000, and especially between 1997 and 2000, than during any comparable period since at least the middle of the 18th century."3 Subsequent authors identify the critical years as those from 1997 to 2005: the heart of the Blair government's efforts to "modernize" the country and the constitution.4American attention has not been focused on these events; indeed, many are unaware of the extent or nature of recent constitutional change in the United Kingdom.5 But scholars in Britain have debated the meaning of these reforms and their effects on the way British constitutionalism is conceptualized and articulated.6 Two competing normative and descriptive theories structure these constitutional debates: political constitutionalism and legal constitutionalism. Political constitutionalism finds its support in representative democracy and republicanism and gives rise to institutional fidelity to Parliament and the doctrine of parliamentary sovereignty. Legal constitutionalism, in contrast, identifies the primacy of rights protection and the dangers of excessive democracy; legal constitutionalists maintain that external limitations must exist on Parliament, and, generally speaking, they focus their attention on the role of courts and judicial review. In the literature, most reforms are assessed by their perceived connections to either a broader political or legal constitutionalist framework.This scholarly agenda has developed in an ad hoc fashion, due in large part to the fact that the various reforms themselves "have been legislated piecemeal, and . …