The UK Marbury vs Madison?

“As I understand, the role of the federal judiciary, the role of our court system, is to provide justice.”

— Ted Deutch.

UKSC 2019/0193 is the case number for the current case going through the Supreme Court in effort to determine whether or not the advice given by Boris Johnson to the Queen to prorogue Parliament was illegal. This post won’t be offering a view on whether or not the advice was legal. Instead it will look at something far more important for the British constitution, does the Supreme Court assert itself as its own branch of government?

The Supreme Court as an institution is an extremely young one, with its tenth anniversary of its founding being next month. Prior to the Constitutional Reform Act (2005) the highest court in the United Kingdom was the House of Lords which created an interesting situation where the judiciary was also a part of the legislature. In 2009 this changed when finally the Supreme Court was moved into Parliament Square.

Due to its infancy the Supreme Court is not entrenched in the minds of the British public as opposed to the Supreme Court for those within the United States and while it has ruled on a great many cases it has only truly had one case of note that sticks in the minds of those who study both politics and law: Miller vs Secretary of State for Exiting the European Union (2016). For those unfamiliar, this case determined that the Government could not enact article 50 without the approval of Parliament.

While Miller in 2016 was an important case for the Supreme Court to start to assert itself, the case that is currently before it is more so. Regardless of the decision that will be decided by the judges this is setting a precedent, which given the unwritten nature of the British constitution is important. First that decisions that contradict in two different parts of the country will be decided upon by the Supreme Court. Second that the Supreme Court will decide whether or not the advice given by a Prime Minister to the Monarch can be challenged.

The question therefore is how is this related to Marbury vs Madison at all? The power to rule if something is constitutional or not, the power of judicial review, the most powerful tool in the United States Supreme Court’s arsenal was not given to them within the constitution or by any amendments to it. Instead they gave it to themselves in the case of Marbury vs Madison (1803).

William Marbury had been appointed to a position by President John Adams just before he left office, the new President Thomas Jefferson refused to grant him this therefore he petitioned the Supreme Court to force the Secretary of States James Madison into granting it. The Chief Justice John Marshall knew full well that Jefferson would never honour a decision that went against himself as a result Marshall positioned the decision so that Jefferson could not disagree and would firm up the Supreme Court as a true branch of government.

The decision can be broken down as the following:

  1. Does Marbury hold a right to his appointment?  Yes
  2. Was Marbury entitled to a remedy under U.S. law?  Yes
  3. Was Marbury entitled to a writ of mandamus under Section 13 of the Judiciary Act of 1789?  No, as the Judiciary Act (1789) is unconstitutional.

Marshall’s masterstroke to Jefferson was this: If you want the decision to go your way, you have to recognise it all including the new power of judicial review.

So why do I believe that the current case in the Supreme Court could potentially be the UK’s Marbury vs Madison. If the Supreme Court decide that it can rule on advice given by the Prime Minister to the Queen (regardless if the advice is lawful or not) it grants itself the power to decide to rule on any and all advice given to the Monarch in the future. A power it didn’t have before, not a power given to it by any statute and a power that has the potential to be the greatest impact on the British Constitution in centuries.

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