The relationship between the executive, legislature and judiciary - Essay Example

 The relationship between the executive, legislature and judiciary Introduction: The separation of powers among the three branches of Government is intended to function as a system of checks and balances to control and evenly distribute power between the three branches of Government. The United Kingdom is a Constitutional monarchy with a bicameral Parliament, comprised of the Houses of Commons and Lords, which lays down the supreme law of the land1. U.K. has no written and codified Constitution, therefore Constitutional practice is largely comprised of the Acts of Parliament and judicial decisions2. There is no separation of powers in the UK, rather Parliament is sovereign and the source of all valid authority3 hence the judiciary will be subordinate to Parliament4. The orthodox approach to judicial review is therefore based upon the absolute and indivisible sovereignty of Parliament rather than the independence of the judiciary5. Oxford Professor A.V. Dicey set out the fundamental principles of Britain’s unwritten Constitution, and the role of judges within the context of those principles by stating that the indivisibility of Parliamentary power requires that all exercise of Governmental power must be authorized by Parliament, since it is the source of all valid authority.6 As a result, the British power of judicial review would not include the power to invalidate Acts of Parliament, rather the Courts may only use their powers to constrain any abuse of powers by the other arms of Government, such as the legislative and executive branches7. However, existing provisions permit the Lords of the Appellate Committee to also participate in the legislative business of the Upper House8, thereby raising the question of validity of judicial independence. This has been addressed in the Constitutional Reform Act of 2005, which aims to strengthening democracy and enhance the credibility of public institutions9 while also recognizing the value of judicial independence and the need to preserve it.10 Furthermore, the separation of powers between the three branches of Government as spelt out by Montesquieu11 is unclear in the context of the British judicial process. In view of present threats from terrorism, the Government has enacted sweeping legislation against terrorists12 tilting the balance of power in favor of the executive and undermining judicial power.13 Moreover, recent European legislation such as the European Convention of Human Rights14, and its incorporation into UK through the implementation of the Human Rights Act of 1998 have only highlighted the need for an independent judiciary, which is proposed to be addressed through the formulation of a Supreme Court with twelve judges. Section 6 of the HRA makes it unlawful for any public body to act in contravention of Convention rights, therefore if the judiciary remains subordinated to Parliament, individual freedoms guaranteed under the ECHR cannot be guaranteed. Separation of Powers: According to Montesquieu, liberty exists only when Government is constituted such that one man need not be afraid of another.15 He believed that power needs to be so apportioned between different players in Government that minimal opportunities exist for the abuse of such power; thus such a principle of liberty will establish the rule of law. He visualizes law making as being confined to the legislature, law execution in executive hands and the exposition of law as being the realm of the judiciary. However, this does not consider the impact of the common law and the system of judicial precedent16 which mainly aid in protecting the people from arbitrary actions and laws of Government. Statutory the rule of sub-judice is applied by the Parliament in refraining from discussing matters under adjudication, however judges have been criticized in Parliament, for example on the issue of rape when they allow reduced sentences or deem the victim guilty of contributory negligence.17 Judicial review of Executive decisions alleged to be ultra vires is permitted to keep it functioning within the legitimate scope of its powers. In a similar manner, while statutory interpretation is required by the judiciary to discern the intention of Parliament18, it cannot extend to usurpation of its legislative function19. As a result, the separation of powers is maintained and as stated by Lord Diplock, “it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them.”20 The Constitutional reform Act of 2005 is a response to the growing imbalance in the power of the executive, which is taking on quasi judicial functions21, that will be in violation of Article 6 of the ECHR that mandates the right to a fair trial. Lord Browne Wilkinson has pointed out that British judges have already used their judicial power in several cases to protect what they consider as fundamental rights22 indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny.”23 However, in view of the increased importance that is being accorded to human rights, the restrictions imposed by parliamentary sovereignty become more apparent. The Rule of Law: However, in reality, it may be the maintenance of an effective system of checks and balances between the three branches that is likely to be more effective in establishing the rule of law. Parliamentary sovereignty mandated constitutional subordination of the judiciary to parliament24 and also means that UK law can override international law25, however the introduction of the Human Rights Act of 1998 was geared towards bringing about a “major constitutional change” within the UK26 to guarantee individual freedoms in national law. The Human Rights Act states that UK Parliament legislation must be read and given effect to in the Courts in a way that will be compatible with Convention rights “so far as it is possible to do so”27 and if domestic legislation is found to be incompatible with individual rights spelt out in the Convention, then the judiciary has been given the power under the Act to declare the incompatibility of such legislation.28 However, as pointed out by Justice Arden, Parliamentary sovereignty is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights.”29 If the faith of the people in the law of the land is to be maintained, then it is vital that the rule of law be upheld by the judiciary. But the system of Parliamentary sovereignty is increasingly being challenged and found inapplicable. For example, in the recent case of Jackson and Others v HMAG30 the validity of the Hunting Act of 2004 was challenged on the grounds that it was based upon the Parliament Act of 1949, which did not possess necessary Parliamentary mandate. The foundation of the British Constitution is the Parliament Act of 1911, whereby any modifications to the Act would require the consent of both Houses of Parliament.31 But unlike the 1911 Act, the 1949 Act was not passed by both Houses, it was passed only by the House of Commons and was therefore challenged as invalid. However, the Court stated that its jurisdiction in such a case would be limited, since Article 9 of the Bill of Rights states that the proceedings in Parliament may not be questioned in any court of law. This case is important because it raises the issue of curtailment of the powers of the House of Lords, which in turn raises the issue of imbalances in the bicameral system and the need to enhance the independence and power of the judiciary. As the British Government has pointed out, “The fact that the law Lords are a committee of the House of Lords can raise issues about the appearance of independence from the legislature.”32 Further proposals being mooted for reform in the House of Lords also include the abolishing of the hereditary peers in the House of Lords33. The move towards the establishment of an independent and separate judiciary appears to be a certain future mandate as individual rights and European Law gain precedence within the UK judicial system as a consequence of the Constitutional reform Act. Case law: Two recent cases in particular have highlighted this tension between the executive and the judiciary. Part 4 of the Anti Terrorism Act does not specifically prevent the indefinite detention of foreign nationals in the UK, however the House of Lords ruled that this would be incompatible with human rights, since it would (a) deprive the individual of his liberty guaranteed under the Convention and (b) discriminate between UK and foreign suspects, in contravention to Article 14 of the ECHR.34 Such a judicial decision raised the question of the legitimacy of the Act passed by the Executive. In the subsequent case of A v Secretary of State for the Home Department35 that came up before the Special Immigration Appeals Commission, the House of Lords declared unanimously that the use of evidence obtained by torture would not be admissible in UK courts. In reference to the qualification sought by the Secretary of State for admission of the evidence, Lord Bingham pointed out that international law36 also mandates that such evidence be ruled out on grounds of unreliability. The rationale of the exclusionary rule37 is that evidence improperly obtained must be left out because a man cannot be forced to incriminate himself38 and the inadmissibility of confessions which are not voluntary are an established principle of English law.39 This decision also raised the issue of propriety of the Government’s anti terrorism legislation and posed a conflict between the judiciary and the executive. Tension between the legislature and the executive may also pose problems in interpretation in the Courts, especially in prerogative powers accorded to the executive. In Laker Airways Ltd v Dept of Trade40 Lord Denning defined the prerogative as a “discretionary power exercisable by the executive government” in cases such as the “war prerogative” or the “treaty prerogative”41 in which case, the law does not interfere with the exercise of the prerogative42 by the official concerned, since it can only be modified by Parliament itself. However, he also clarified that the law can set limits on the exercise of the prerogative, especially if it is “exercised improperly or mistakenly. That is the fundamental principle of our Constitution.”43 Lord Diplock has also stated that where the source of powers is the exercise of the prerogative, judicial reviews of such decisions may properly be undertaken.44 All this highlights the growing tensions between the three braches of Government. Conclusions: In view of the foregoing, it may be concluded that recent Human Rights legislation has been provoking a high degree of tension between the three branches of Government, with the judiciary restricted by Parliamentary sovereignty, in providing justice to individuals faced with inequitable statutes. One example that may be cited is the inability of judicial review in R v Ministry of defence ex parte Smith45 where the policy of excluding homosexuals from the Army could not be successfully contested. Lord Woolf46, in offering his tentative support for the establishment of a Supreme Court has also pointed out that the current system of Parliamentary sovereignty undermines the independence of the judiciary. However, he also mentions possible drawbacks of introducing a Supreme Court, such as the possibility of increased costs to the litigant through such a new system. Another limitation that has been pointed out in the response of the Lords is the fact that the House will be deprived of the valuable contributions made by the law Lords on the administration of justice47. Lord Woolf has also mentioned the concerns about introducing necessarily accountability from judges48 if they are to be provided independence from Parliamentary control through the setting up of the Supreme Court. These are the drawbacks to the establishment of a Supreme Court; however the supremacy of Parliament, of necessity, subordinates individual rights since legislation is framed to suit the majority. Therefore in view of the increasing emphasis on human rights legislation and the need to strengthen the judiciary, the proposal to set up a Supreme Court in the UK appears to be well founded and relevant for future dispensation of law in the light of recent human rights mandates in international law. ………………….2000 words (excluding footnotes) Bibliography Cases: * A and others v Secretary of State for Home Department [2004] UKHL 56 * A and others v Secretary of State for Home Department [2005] UKHL 71 * Cheney v Conn [1958] 1 WLR 242 * Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 951, [1985] AC 374 at 411 * Duport Steel v Sirs (1980) 1 All ER 529 at 541 * Jackson and Others v Her Majesty’s Attorney General (2005) UKHL 56 * Laker Airways Ltd v department of Trade [1977] 2 All ER 182 at 192, [1977] QB 643 * Lam Chi-ming v The Queen, [1991] 2 AC 212, 220 * R v Ministry of defence ex parte Smith (1996) QB 517, (1995) All ER 427 * R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513, paras 1, 7, 27, 45-46, 71 * R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 at 531 * R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769 Books/Journal articles: * Bradley, A.W. & Ewing, K. D. 2003. Constitutional and Administrative Law. (13th ed.), Harlow, Longman, pp 233. * Craig, Paul, 1990. “Public Law and Democracy in the United Kingdom and United States of America”, pp 21-22 * DeSecondat, Charles, 1873 (First published 1748) Baron de Montesquieu: The Spirit of the Laws (Nugent Translation, revised edn). Bk XI, Ch VI, pp 175-179. * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471 * Elliot, Mark, 2001. The Constitutional Foundations of Judicial review, 44-49. * Barnett, Hilaire, 2004. “Constitutional and Administrative Law” * Justice Arden, 2004. The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence Statute Law Review, 25(3):166 * The Law Lords’ response to the Government’ s consultation paper on Constitutional reform: a Supreme Court for the United Kingdom.” [online] available at: http://www.parliament.uk/documents/upload/JudicialSCR071103.pdf * Lord Irvine of Lairg, 2003 “Britain’s programme of constitutional change” IN “Human Rights, Constitutional Law and the development of the English Legal System.” Oxford: Hart Publishing at pp 87 * Lord Falconer DCA: Justice, Rights, democracy Speech. Institute of Public Policy research. December 3, 2003. * Lord Browne Wilkinson. The infiltration of a Bill of Rights. Public Law 397, 1992: 409. * Speech on Constitutional reform, Lord Falconer, 8 December 2003 * Squire Centenary lecture, 2004. “The Rule of Law and a change in the Constitution” [online] available at: http://www.law.cam.ac.uk/docs/view.php?doc=1415 Legislation: * Anti Terrorism Crime and Security Act of 2001 * Criminal Justice and Public Order Act of 1994 * European Convention of Human Rights [online] available at: http://www.pfc.org.uk/legal/echrtext.htm * Gender recognition Act of 2004. [online] available at: http://www.opsi.gov.uk/acts/acts2004/40007--a.htm * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 * International Torture Convention Read More