| Affected by traditional theories of parliamentary sovereignty,both the theoretical and practical circles think that the principle of parliamentary supremacy in the UK is like a sharp sword of Damocles:the parliament enjoys a supreme status in form and essence,so no other authorities have the rights to review parliamentary legislations.In addition,the British unwritten constitution's uniqueness has created an impression that no constitution exists in the U.K or the constitution exists in an invisible form.Neither does the right nor basis for constitutional review exists,let alone the British constitutional review itself.For this reason,the statement that constitutional review exists in the UK is often questioned.Does the UK have constitutional review?Now,proving the existence of constitutional reviews in the UK is a theoretical difficulty for constitutional jurisprudence.If constitutional review exists in the UK,what is the basis for such a review?How should the British constitutional review be defined?What is the authority or subject of British constitutional review?How does the UK constitutional review operate?These questions are not only the research content of the dissertation but also theoretical priorities that should be solved urgently by British constitutional jurisprudence.To answer these questions,scholars should first clarify that the British constitution is the product of historical development rather than a design based on careful considerations.Friedrich Engels once said,"The British constitution was born out of historical development." Indeed,such a historical dynamic further contributed to the British constitution's flexibility.For instance,Albert Venn Dicey held that the British constitution was "the most flexible policy in existence".As the motherland of the world's constitutionalism,the UK first coined the term "unconstitutional" as early as 1628.Besides,it developed common law to continually deepen the "high law" and"natural law" thinking in ancient Greek and German laws.Although the strict and rigid principle of parliamentary sovereignty restrict the constitutional review's development,the reform in the British constitution has never ended.With its historical dynamic and flexibility,the British constitution not only overthrew people's traditional perception of it but also enabled the constitutional review to take root in the UK and stop being a castle in the air.The UK advocated the concept of constitutional review and called on judiciary organs to conduct and expand judicial reviews by criticizing traditional,rigid democracy mechanisms and the principle of parliamentary sovereignty.As state-level administrative intervention intensified,Dicey began to reflect on the Westminster-style parliamentary democracy in Introduction to the Study of the Law of the Constitution,trying to persuade judiciary authorities to solve numerous political disasters.Subsequently,British theoretical and academic circles gradually clarified such reflections as the principle of prudent ultra vires,requiring courts to closely connect the judiciary intervention of administrative affairs and the parliament's will.In 1968,the Anisminic Ltd v Foreign Compensation Commission case brought significant changes to the British judicial power.Before this case,British courts strictly observed their jurisdictions and complimented that the governmental behaviors were within reasonable jurisdictions even though administrative mistakes might occur.After this case,however,courts directly contradicted and abandoned the regulation that judiciary organs mustn't review parliamentary legislation.Besides,British courts also indirectly started the judicial review of parliamentary legislation and made leapfrog development in the reasonable jurisdiction.Almost all mistakes concerning judicial rights,violations against the natural law principle,non-considerations of relevant factors,and improper uses of laws were classified into the scope of ultra vires and constitutional review.In this way,the principle of ultra vires became a broad and flexible concept,which achieved the legislative intent for judiciary review.Following WWII,the British constitutional jurisprudence gradually divided into two schools:political constitutionalism and legal constitutionalism.The political constitutionalism rarely trusts judiciary organs but emphasizes the importance of the political process in controlling public power.The core of this theory lies in democratic thinking:The people's elected representatives in the parliament facilitate the political process and control the administrative power,ensuring that public authorities are accountable to the people.The legal constitutionalism emphasizes courts' roles in controlling power and rights.If any misuse of power occurs,it advocates controlling the public authority through judicial reviews,and personal rights eventually stem from the common law enacted by judges.There have been ongoing debates between political constitutionalism and legal constitutionalism.Besides,the former has dominated British academia for a long time.Nevertheless,the British constitutional reform that started in the 1960s allowed the judicial constitutional review emphasized by the political constitutionalism to increase its presence.A series of reform lists contributed to the "New British Constitution"advocated by British scholars.Two shiniest reforms particularly stand out:Firstly,the Human Rights Act 1988 establ ished the British constitutional review system;secondly,the Constitutional Reform Act 2005 stipulates that the House of Lords' judiciary functions shall be replaced by the recently established Supreme Court.Both reforms had significant impacts on the unwritten constitution and the principle of parliamentary sovereignty.For one thing,the Human Rights Act 1988 cites all basic rights and writes them down in a list.For another,on condition of respecting the parliament,the Supreme Court and Secondary Court achieved the "weak-form constitutional review" referred to by Mark Tushnet through explanatory legislation and the "declaration of incompatibility".Besides,this review model has been promoted and developed in Canada,New Zealand,and Australia to varying degrees.The British constitutional review studied in the dissertation has the following connotations:British courts review objects,including parliamentary legislation and governmental behaviors,according to the Human Rights Act 1998.Such reviews are divided into interpretive review and review of declaration of incompatibility.If possible,the primary and secondary legislations should be interpreted according to the spirit of the European Convention on Human Rights and endowed with meanings consistent with the convention.When necessary,courts can declare that parliamentary legislation contradicts the European Convention on Human Rights.However,the power of such declaration of incompatibility only resides with six categories of organs,including the UK Supreme Court,the Judicial Committee of the Privy Council,the Court Martial Appeal Court,the High Court of Justiciary,the High Court of Scotland and Wales,the High Court of Northern Ireland,and the Court of Appeal.By comparison,county courts and various administrative tribunals have no rights to declare that the parliament violates the European Convention on Human Rights.Once the court considers making a declaration of incompatibility,it should notify relevant cabinet ministers to make third-party claims so that the government can state its opinions and be informed of the results.The declaration of incompatibility does not affect the parliament's continuous validity and further execution.Besides,the administrative decisions made according to the parliament's legislation do not violate laws.Nevertheless,it still exerts substantial pressure and impacts the parliament and government,eventually facilitating efforts to amend or abolish relevant laws.The British constitutional review model,which originated from the Human Rights Act 1998 and developed based on the establishment and operation of the British Supreme Court,is British latest contribution to the world's development of contemporary constitutional jurisprudence.Partly due to the development of the British constitutional jurisprudence affects everything silently,China lags behind European countries,America,and other civil law countries regarding the study of the British constitutional review.Besides,China's research findings and achievements were mostly made before the UK Supreme Court officially started operating on October 1st,2009.It was not until recent years did China make further progress in cutting-edge studies.In this context,the dissertation studies the British constitutional review.Its theoretical and practical significance is listed as follows:firstly,the UK is the motherland of parliamentary sovereignty and broke the spell that parliamentary sovereignty countries "establish the constitution easily yet implement it with difficulties"and set up a feasible judiciary constitutional review.Not only did this have a remarkable demonstrative effect on the British Commonwealth of Nations,but also it enlightened how parliamentary sovereignty countries across the world can build a constitutional review model that suits them.Secondly,due to its uniqueness,the British constitutional review system is honored by the British and American academia as the third path aside from the judiciary supremacy and legislation supremacy.Although the constitutional review of the contemporary world is divided into the review of common courts,the review of legislative institutions,the review of special organs,and compound reviews,their theoretical foundation are confined to the choice over judiciary supremacy or legislative supremacy.The British constitutional review system advocates dialogues and consultation between three powers.Although judiciary organs are implementing effective constitutional reviews,it's only a feeble appearance.Instead,respect for legislative and administrative organs can be found everywhere,which does not lead to severe constitutional crises or social instability.Besides,the British model provided its answer regarding establishing constitutional reviews in countries with unwritten constitutions.Furthermore,the UK has stumbled into the post-Brexit era after numerous trials.Did the British constitutional review play its role amid the Brexit?If the answer is yes,the experience accumulated by the constitutional review in the British exit not only helped the UK tide over its difficulty but also left an indelible mark in the history of the world's constitutional development.To study these theories and practice,the dissertation is organized in the following structure:In the main body,the first chapter focuses on the concept of the British constitutional review and discusses it in the British,American,and Chinese contexts.The first part of this chapter discusses the internal and external motives for generalizing the British constitutional review,believing that long-term accumulation of case laws in the UK and the external impacts of the EU laws shifted and adjusted the principle of rigid parliamentary sovereignty,cultivated the concept of judiciary mobility,and contributed to the final establishment of the British constitutional review.Secondly,another research priority lies in many British scholars'research on the concept of the British constitutional review.Since the UK proposed the concept of constitutional violation in 1628,discussions on the constitutional review have never stopped in the UK The development of the judiciary activism theory in the modern and contemporary eras and the expansion of judiciary power in practice eventually contributed to the disputes between political and legal constitutions after WWII.Due to the leapfrog development of the legal constitution,the British constitutional review theory has become increasingly active.In the second part,compared with extensive debates about the British constitutional review in the UK,the American academia basically thinks that the UK has established a unique review model,despite differences in the concept and name.The most authoritative are theories proposed by American scholars Stephen Gardbaum and Mark Tushnet.The former defined the British model into the New Commonwealth Model of Constitutionalism,while the latter defined the British model into the weak-form constitutional review.The third part thinks that China's academia studies the concept of the British constitutional review more extensively yet lags behind in all aspects.In particular,it rarely involves the theoretical foundation of the British constitutional review and the latest development trends.In the main body,the second chapter introduces the basis for the British constitutional review.By probing into the institutional changes of the British constitution,it is found that the constitutional review has two preconditions—constitution and higher law are standards.It's not too hard to find that the British constitutional review exists objectively and is a product of the British constitution's development.It wasn't until the Human Rights Act 1998 was enacted and formulated that the British weak-form constitutional review system was enacted in statute law.Besides,the Constitutional Reform Act 2005 and the establishment of the British Supreme Court in 2009 set up a matching review institution for the British constitutional review.The second chapter introduces from three perspectives,the concept of the British constitution,the validity of the British constitution(the higher law),and the component elements of the British constitution.The third chapter studies the subjects of the British constitutional review.The subjects of constitutional review in countries with written constitutions are definitely clarified.However,the unwritten nature of the British constitution guides people to probe into the subjects of the British constitutional review from scattered constitutional elements,including constitutional statute laws,case laws,constitutional conventions,and the constitutional principle.The subjects of the British constitutional review can be classified into six categories,including the UK Supreme Court,the Judicial Committee of the Privy Council,the Court Martial Appeal Court,the High Court of Justiciary,the High Court of Scotland and Wales,the High Court of Northern Ireland,and the Court of Appeal.This dissertation divides six subjects into four types:Firstly,supreme Courts,including the UK Supreme Court and Judicial Committee of the Privy Council;secondly,the Court of Appeal,including the Court of Appeal of England and Wales and the Court of Appeal of Northern Ireland;thirdly,local courts,including the High Court of Scotland and Wales,the High Court of Northern Ireland,and the High Court of Justiciary;fourthly,special courts,namely the Court Martial Appeal Court.County courts and Magistrate's Courts are excluded from the subjects of the British constitutional review.Unlike the subjects of American common courts,it accentuates the authority and professionalism of the constitutional review.The fourth chapter of the main body focuses on British courts' constitutional review of parliamentary legislation.In 1998,the first clause of Article 3 of the Human Rights Act 1998 clarified the legislative interpretation:If possible,the primary legislation and secondary legislation should be interpreted and take effect consistent with the convention rights stipulated by the European Convention on Human Rights.The primary legislation refers to laws directly passed by the parliament.According to general regulations,macroscopic principles and policies are superior to secondary legislation.Besides,the formulation right of secondary legislation originates from the authorization of basic legislation.The secondary legislation refers to laws formulated by government ministers(or other governmental institutions)according to parliamentary legislation.It is used for supplementing the details of primary legislation.These details include many methods concerning the application of laws to ensure that laws are faithfully implemented and operate in daily life.Secondary legislation also sets one legislative clause to implement it as an official law or modify existing laws.For instance,as long as the British government identifies the harm of new materials,it will modify secondary legislation and add new materials into the list of Misuse ofDrugs Act 1971.The second clause of Article 4 stipulates the Declaration of Incompatibility:If the court affirms that legislative clauses are inconsistent with convention rights,it can announce the declaration of incompatibility.According to the regulations of statute laws,the UK established two operation modes for the constitutional review:explanatory review and incompatibility declaration review.Given that the British constitution has an unwritten nature and long-standing common law traditions,the establishment,development,and interactions of these two mechanisms depend on the long-term accumulation and changes of the British case law.Therefore,this chapter employs the research method of the British case law and reviews typical British constitutional precedents.Next,it explores how the British practice and theoretical circles set up a delicate explanatory review and declaration of incompatibility review system based on these precedents.The fifth chapter studies British courts' constitutional review of governmental behaviors.This chapter focuses on several important constitutional precedents of the British exit:R(Miller)v Secretary of State for Exiting the European Union,R(on the application of Miller)v The Prime Minister,and Cherry and others v Advocate General for Scotland.These precedents have landmark significance in the UK and play a connecting role.Hence they are the dissertation's significant innovations.By analyzing these classical precedents,this chapter probes into the boundaries proposed by British courts between political and legal issues,the latest development of the content and range of British unwritten constitutions,the prerogative powers and defining of its restrictions,the relations between British laws and EU laws,the power of parliamentary prorogation,and other significant constitutional problems.This chapter's research observes the following sequence:Firstly,explore the background of precedents;secondly,study the process of case trials and dispute focus;thirdly,summarize major constitutional theories embodied in each precedent;fourthly' analyze the priorities of major theoretical issues,proceed from the interior to the exterior,and explore the theoretical and practical significances of these problems.Based on previous chapters,the sixth chapter reviews and explores how the British constitutional review system facilitates the development of British constitutional theories.Regarding the explanatory constitutional theory,the British constitutional review system derived many other elements based on literal,semantic,and systematic explanations,including the theory of fundamental feature and the theory of semantic lottery.Besides,it also developed the theory of parliamentary intent,the theory of express meaning,and the theory of necessary implications.These theories not only laid a foundation for British constitutional interpretations but also distinguished constitutional interpretation from legislative procedures.In the incompatibility declaration review,the dialogue theory advocates following the separation of powers,the strict observation of respective boundaries,and mutual respect.In particular,it's essential to achieve positive interactions and dialogues between judiciary power and legislative power.The conclusion part starts with the British constitutional review system,believing that the global constitutional review experienced three critical historical dimensions in the third democracy trend:parliamentary sovereignty—judiciary supremacy—new model affected by international human right treaties.However,the UK failed to get rid of this historical trend.As a result,the UK constitutional review eventually became a representative model of the third dimension.By studying this dissertation,the author has basically clarified the institutional framework of the British constitutional review and studied the significant theories and practical significance of the British constitutional review,hoping to contribute new knowledge increment for studying the British constitutional jurisprudence. |
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