“O LORD MAKE ME PURE—BUT NOT YET”: GRANTING TIME FOR THE AMENDMENT OF UNLAWFUL LEGISLATION

Abstract

Challenges to the lawfulness of legislation still appear surprising to traditionally-minded English lawyers. The British constitution could once be “summed up in eight words: ‘What the Queen in Parliament enacts is law’”. And that was that. But no longer. The supremacy of European Union law required an exception to such absolute parliamentary sovereignty. The Rubicon crossed, it was no longer unthinkable that other exceptions might follow. But even while the United Kingdom’s membership of the EU enters its presumptive end-phase (at time of writing), difficult questions remain about how precisely the courts should approach an Act of Parliament found to violate EU law. Of major importance is whether the court must order immediate relief. That could be seen as inevitable. For the court to suspend its order would be to continue and adopt Parliament’s illegal Act, apparently compounding the breach of EU law. But in order to respect Parliament’s role in responding to violations of EU law, it may sometimes be appropriate for the court to preserve the Act’s validity while remedial legislation is enacted. This involves some judicial encroachment upon the legislative process. That may provoke unease. But the “logical” approach of immediately holding the legislation invalid (indeed void ab initio) would be more intrusive still.