Prof. Jeffrey Jowell QC yesterday gave a JUSTICE lecture on the rule of law and the UK constitutional balance. He had some surprising conclusions: the one that I found most interesting was that the "supremacy of Parliament" is a common law construct that could be undone by the UK courts.
While our Human Rights Act 1998 does not allow judges to strike down Acts of Parliament contrary to the European Convention on Human Rights, the European Communities Act 1972 does indeed allow judges to disapply UK Acts that contravene EU law. Jowell asked: if the courts can strike out laws in the fields of commerce and free trade, surely they should be allowed to disapply laws that offend far more fundamental constitutional and human rights principles? He suggested that the next stage of the UK's political evolution must be to create a written constitution and give the judiciary the power to strike down unconstitutional laws.
My question: the United States has a strong constitution and Supreme Court powers to enforce it. Yet still we see President Bush abolishing habeus corpus, despite the clear constitutional requirement that this may only occur in cases of rebellion or invasion. What type of political arrangement could prevent this happening in the UK?