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In countries, such as the US, with written constitutions, courts can strike down laws they consider to be unconstitutional. For example, a law that prohibited people saying "hello" would be struck down in the US court system for violating the first amendment which includes the right to freedom of speech. Of course, in the US, the legislature can attempt to modify the constitution, but this is a highly involved process that is unlikely to succeed in most cases. Hence, the judiciary can use their understanding of the constitution to check the ability of the other branches of government to pass laws.

In countries without a written constution, such as the UK, are there any mechanisms that allow the judiciary to check the power of government to pass laws? If so, what are these mechanisms?

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    As a Brit, I know the UK courts have this power - they have, for example, struck down the government's attempt to deport asylum seekers to Rwanda as being "unlawful" - but I don't really know the specifics.
    – F1Krazy
    Commented Mar 10 at 10:45
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    The courts can (and do) declare a minister's actions unlawful. But they cannot declare an act of parliament unlawful.
    – James K
    Commented Mar 10 at 15:19
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    "In countries, such as the US, with written constitutions, courts can strike down laws they consider to be unconstitutional": in the United States, this power is not established by the written constitution.
    – phoog
    Commented Mar 10 at 20:48
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    Both the US and UK have written constitutions but the US has a codified constitution and the UK has an uncodified constitution. /pedant
    – Lag
    Commented Mar 11 at 8:35
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    @phoog The Constitution of the U.S. says, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." and "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority..." Judicial review is, at a minimum, very heavily implied there.
    – reirab
    Commented Mar 11 at 21:39

3 Answers 3

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The Courts do not have the right to strike down laws. The central principle of the constitution is that Parliament is supreme and can pass any law.

However the Human Rights Act does allow for an element of Judicial Review. While the Supreme Court (and the High Court of Justiciary and Court of Session in Scotland) cannot "strike down" laws. It must interpret laws in a way that is compatible with the Human Rights Act.

If primary legislation cannot be interpreted in a way that is compatible, and so is incompatible with the Human Rights Act, then judges can issue a "Declaration of Incompatibility". The law remains unchanged (and judges must follow the law) but the Government is expected to respond, (by amending the law) as failing to do so could leave the UK open to cases in the EHCR.

Moreover secondary legislation (including regulations created by ministers and actions by local governments) is subject to judicial review and can be overturned if it is incompatible with UK law, including the Human Rights Act.

Primary legislation is laws directly created by an act of Parliament. For example there is a law that says "Theft is an offence". Secondary legislation is when there is an act of Parliament that gives another body the authority to create a law. For example there is primary legislation that says "Dangerous dogs breeds must be muzzelled" and secondly "Ministers may make a list of dangerous dog breeds". THe secondary legislation is the regulation written by ministers that "Pit bulls are a dangerous breed". A court cannot overturn the primary legislation (only make a declaration of incompatibility) but could overturn the secondary legislation.

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    I think you're right in English law, but maybe not in Scotland. As Wikipedia says: "Thus, in MacCormick v. Lord Advocate, the Lord President (Lord Cooper) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law"
    – bdsl
    Commented Mar 11 at 16:15
  • (and Wales generally follows English law, but I have no idea what the position is in in Northern Ireland.)
    – bdsl
    Commented Mar 11 at 16:23
  • I am not clear on the distinction between primary and secondary legislation. Isn't all law in the UK created by ministers?
    – Ben Cohen
    Commented Mar 15 at 23:19
  • No, not at all. Primary legislation is created by Parliament. Most (but not all) will have been drafted by ministers. Some will be from other MPs. And there is a lot more "law" that is not directly created by parliament, because primary legislation may give a minister (etc) the power to make regulations. And then there is a large amount of "common law" that consists of the decisions and interpretation of judges through the ages. Minsters can't create primary legislation. Only Parliament can do that.
    – James K
    Commented Mar 16 at 6:33
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Frame challenge:

The US court has that power not because of the Constitution itself, but because it interpreted the Constitution (in Marbury v. Madison) in a way which gave it that power.

Effectively, the court asserted that power, and it was not challenged (with a Constitutional amendment, for example) because the overall consensus was that it was prudent for it to have it.

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  • Most Supreme Court decisions are based on interpreting the Constitution. You seem to be arguing that the Supreme Court shouldn't have that power or that it's arguable that it shouldn't, whereas it seems completely settled that it does.
    – Stuart F
    Commented Mar 11 at 12:31
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    @StuartF I think before MvM, the expectation was that they would use this interpretation to determine how and whether a law applied to the case, not on the law itself. Maybe the only cases were where the Bill of Rights says "Congress shall make no law that ...."
    – Barmar
    Commented Mar 11 at 14:45
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    @Barmar "how and whether a law applied to the case" would depend on whether, in that case, applying the law would contravene the constitution. If so, then the court would have to follow the constitution by refusing to apply the law. This is just an obvious corollary of constitutional supremacy; it is not the court giving itself an extra power. Now, if the court determines that every possible application of the law would contravene the constitution, they can say so. Doing so doesn't actually wipe the law off the books; it's just an advance warning that the court will not enforce it.
    – Brian
    Commented Mar 11 at 17:40
  • If the Supreme Court had claimed that it had the power to repeal a law passed by Congress or a state legislature because it determined that the law was unconstitutional, then that would be much more difficult to justify. The constitution does not give the judicial branch any such power.
    – Brian
    Commented Mar 11 at 17:41
  • @Brian In the upcoming Trump immunity case, what constitutional interpretation are they being asked to make? There's no law being contested.
    – Barmar
    Commented Mar 11 at 19:18
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In Israel there's no constitution. In the early 1990's a couple of "basic laws" were enacted, and based on them the Supreme Court assumed authority to review legislation:

When the Basic Laws do not state the remedy for the infringement of a constitutional right, legal tradition provides the conclusion that the remedy for an unconstitutional law is abrogation by the courts.

The Supreme Court has on numerous occasions (including the decision quoted above) invalidated laws passed by the Knesset (the parliament). There has been a debate recently in Israel and the Knesset passed a law restricting some of that authority. The Supreme Court rejected that law, and the politicians announced that they will not pursue it further due to the current war (although more likely due to this push to limit the judicial review being hugely unpopular in Israel).

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