Political Constitutionalism and Legal Constitutionalism: Where does the Judiciary Lie at the Heart of this Tension?

AuthorSarah Pearson
S.S.L.R. Political Constit utionalism and Legal Con stitu tionalism
Political Constitutionalism and Legal
Constitutionalism: Where does the Judiciary Lie at
the Heart of this Tension?
Sara h Pear son
This ar ticle discusses the curr ent tension bet ween political an d legal
constitut ionalism and the position of the jud iciary within this debate. A br ief
historical analysis is used to outline the UK’s traditional political
constitut ional system, before being contrasted with this newly developing
legalistic way of con str aining power. The West minster model of political
accoun tabilit y is discussed as an inad equat e constitutional safegu ard , and
instead, the judiciary are seen to take an activist stan ce towar ds hold in g the
gover nmen t to account . Th e concept of Parliam entary sup rem acy is
con sider ed an d com pared with t he st rength enin g notion of the rule of law. The
jud iciary are h igh lighted as pu shing for a greater r ole in uphold ing individual
rights through the development of judicial review, the implementation of the
Human Rights Act an d the creation of a UK Supreme Court. The article
concludes that th e trad ition al con stit utional model remains important, but
that a shift can been seen wit hin the judiciary as they start to gain m ore
confidence, power and legit im acy. The UK still r et ains its political uncodified
constitut ion and its principle of Parliamentary supr emacy, bu t there is now an
increasing level of legal ch ecks to help bolster the ineffectu al political m ean s
an d an increasing recognition of th e cour ts as impa rtial defen ders of r ights.
n recent years, the judiciary have seen an increased ability to wield power
illustrated th rough the ratification of the European Convention on Hu man
Righ ts, 1 the subsequent enact ment of the Hum an Right s Act, 2 th e
expansion of judicial review claim s, an d th e creation of the Un it ed Kingdom
(UK) Supr em e Court.3 The shift in judicial responsibilities is part of a larger
constitutional change: the move from a polit ical constitution to a legal
constitut ion. The stru ggle between these two constitutional th eories is
mirr or ed by the competing ideas of Parliam entary suprem acy an d the rule of
1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention
on Human Rights, as amended by Protocols Nos. 11 and 14) (ECHR).
2 Human Rights Act 1998.
3 Constitutional Reform Act 2005.

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