Since Pericles and Ephialtes in 462 BC carried through the Athenian
Assembly an act formally depriving the Areopagus – the ancient court of
the Archons – of much of their jurisdiction and political influence, the
relationship between the judiciary and the legislature has been near the
heart of constitutional government in democracies. What are the proper
limits on judicial power and how far may the judiciary call the legislature
to account? This book with its study of the judicial review of legislation in
three jurisdictions shines a light into that heart.
The three jurisdictions studied are well chosen. On the one hand, there
is the United Kingdom with its sovereign Parliament that admits no challenge
to its authority. So, in principle, in the UK there can be no judicial
review of legislation (apart from subordinate legislation made under delegated
powers). But there is also the Human Rights Act 1998 which does
not allow the courts to quash legislation but does allow the court to scrutinise
legislation for compliance with fundamental rights and to declare any
incompatibility found leaving it to the elected authorities to remedy the
position. There is also the possibility in the UK that the courts will take
the bold step and assert a power to review legislation in appropriate circumstances.
But this possibility, while supported by some scholars and
the occasional obiter dictum, finds no echo from the elected representatives
of the people. The attempted exercise of such a power would be very
controversial and the political consequences impossible to predict.