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The judicial review of legislation in the United Kingdom: a public choice analysis

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  • Eric Ip

Abstract

The Human Rights Act 1998 unprecedentedly enabled the senior courts in the United Kingdom to review parliamentary enactments for compatibility with the European Convention on Human Rights. This article seeks to analyze within the framework of public choice economics two phenomena arising from this development that are counterintuitive: What made Parliament voluntarily invite the judiciary to monitor its acts? Why has Parliament consistently complied with rulings of the Judicial House of Lords that challenged primary legislation over the last 10 years? It argues that the Act was designed in a way that fulfilled the electoral commitments of the enacting majority by supplying promised policies to its constituencies, while minimizing agency costs and information problems in favor of Parliament’s corporate interests. Significantly, the Act left intact the veto powers of Parliament and the European Court of Human Rights in Strasbourg. As such, it disincentivized the Judicial House of Lords to risk costly overturns of its rulings by Parliament for straying too far from the range of the ideal policy positions spanned by Parliament and Strasbourg. Drawing from the empirical evidence of the past decade, it will be shown that in nearly all cases the Law Lords have either upheld the compatibility of challenged statutes, reaffirmed parliamentary preferences, or followed the jurisprudence of the Strasbourg Court. Copyright Springer Science+Business Media, LLC 2014

Suggested Citation

  • Eric Ip, 2014. "The judicial review of legislation in the United Kingdom: a public choice analysis," European Journal of Law and Economics, Springer, vol. 37(2), pages 221-247, April.
    • Handle: RePEc:kap:ejlwec:v:37:y:2014:i:2:p:221-247
    DOI: 10.1007/s10657-011-9281-4
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    References listed on IDEAS

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    Cited by:

    1. Constantina P. Tridimas & George Tridimas, 2020. "Is the UK Supreme Court rogue to un-prorogue Parliament?," European Journal of Law and Economics, Springer, vol. 49(2), pages 205-225, April.

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    More about this item

    Keywords

    Public choice and public law; Collective choice; Civil rights; Strategic judicial review; Veto players; D72; D78; H10; K10;
    All these keywords.

    JEL classification:

    • D72 - Microeconomics - - Analysis of Collective Decision-Making - - - Political Processes: Rent-seeking, Lobbying, Elections, Legislatures, and Voting Behavior
    • D78 - Microeconomics - - Analysis of Collective Decision-Making - - - Positive Analysis of Policy Formulation and Implementation
    • H10 - Public Economics - - Structure and Scope of Government - - - General
    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)

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