International Journal of Constitutional Law Advance Access originally published online on March 16, 2009
International Journal of Constitutional Law 2009 7(2):183-214; doi:10.1093/icon/mop004
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Common law declarations of unconstitutionality
* Assistant professor of Law, University of Copenhagen Faculty of Law; attorney at law (W.Va., Oh.); former lecturer in Law, University of Aberdeen School of Law, Scotland; thanks to Dr. Michael Plaxton for his helpful comments on an earlier draft and to the Aberdeen Law School for its support. Email: david.jenkins@jur.ku.dk
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Abstract |
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This article proposes that British courts have an inherent power to issue nonbinding, common law "declarations of unconstitutionality" when Parliament legislates against constitutional norms. Courts have already recognized higher-order principles as part of an emerging constitutional jurisprudence and will interpret statutes to be compatible with them absent Parliament's clear, contrary intent. When this interpretive process leads to a constitutional conflict (that is, where higher-order principles and statute are irreconcilable), courts then necessarily decide that Parliament has acted unconstitutionally. The logical next step is for a court simply to make a formal declaration to that effect. Thus, the common law declaration is available not only where Parliament violates common law rights but also the conventions and fundamental statutes that regulate democratic, decision-making processes. The courts’ current interpretive approach inexorably leads to this proposed remedy; this article rests on the premise that further theoretical inquiry into the nature of the British Constitution, parliamentary sovereignty, or the foundations of judicial review is, at this point, not only unnecessary but perhaps even unhelpful, to legal practitioners.