1

Kindly see the boldening below. It baffles me because

  1. the UK doesn't have a SEPARATE Constitutional Court, unlike France or Germany.

  2. Isn't the Administrative Court a Constitutional Court?

The work of the Administrative Court comprises the administrative law jurisdiction of England and Wales. Its varied work is directed at the lawfulness of the acts and omissions of central and local Government, regulatory and disciplinary bodies, inferior courts and tribunals, and other public bodies and officials exercising public functions. The Administrative Court has both a civil and criminal jurisdiction.

This supervisory jurisdiction is exercised in the main through the procedure of Judicial Review (JR) – a wide and still growing field.

Note that I'm quoting from the EWCA judgment, not the UKHL one. Jackson & Ors, R (on the application of) v HM Attorney General [2005] EWCA Civ 126 (16 February 2005).

The reality is that the 1911 Act was a most unusual statute. By that statute the House of Lords, the House of Commons and the King used the machinery of legislation to make a fundamental constitutional change. Nearly 100 years after the event, the court has been invited to rule on the precise nature and extent of that change. We have decided that it was right for the Administrative Court to accept that invitation. The authority of the 1949 Act purported to be derived from the 1911 Act. The latter Act, by s.3, expressly envisaged the possibility that the validity of subsequent Acts enacted pursuant to its provisions might be subjected to judicial scrutiny. The effect of the 1911 Act was undoubtedly susceptible to judicial analysis. However, in considering that effect, the Administrative Court was acting as a constitutional court. There was no precise precedent for the jurisdiction that it was exercising.

2

A constitutional court (with an indefinite article and small "c") here is a court that exercises jurisdiction over constitutional questions.

Under parliamentary supremacy, UK courts do not have jurisdiction to decide on constitutional issues regarding primary legislations (Acts of Parliament).

The latter Act, by s.3, expressly envisaged the possibility that the validity of subsequent Acts enacted pursuant to its provisions might be subjected to judicial scrutiny.

But in the Court of Appeal's opinion, the primary legislation itself (the 1911 Act) contains languages that imply that the court may consider the validity of subsequently enacted Acts

Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law.

even though the Speaker's certificate is conclusive for the court.

The UK courts are supposed to give effects to the will of Parliament, which includes the 1911 Act, a primary legislation itself. In the Hunting Act case, the courts and the Lords believed the case to be a question of statutory interpretation of the 1911 Act, thus not in conflict with parliamentary sovereignty.

However, in considering that effect, the Administrative Court was acting as a constitutional court.

Nonetheless, when considering the validity of a legislation enacted pursuant to the 1911 Act that authorizes an enactment by the House of Commons (and the Monarch) alone, the court is in effect deciding on a constitutional question and acts as a constitutional court, even if the source of jurisdiction supposedly come from an ordinary power over interpretation of statutes.


Isn't the Administrative Court a Constitutional Court?

The High Court (which Administrative Court is a part of) can exercise original jurisdiction over judicial reviews, including constitutional questions (over devolutions or royal prerogatives or Prime Minister's advice to prorogue the Parliament for example), where permitted by the constitution or Acts of Parliament.

However, it lacks the power to review primary legislations and declare them unconstitutional, a core power for constitutional courts in most other countries.

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