The Evolution of Constitutional, Administrative Law and Human Rights - Research Paper Example

The theoretical for justification for the separation of powers centres on its fundamental importance to the operation of democracy. Indeed, Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.1” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely2”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power. A central part of this is the sovereignty of Parliament, which is the central focus of this paper. It is submitted that the central cause for concern within the codified constitution is the current operation of the separation of powers and the potential for abuse by an “elected dictatorship3” Conversely, the 1688 settlement between the incoming king and Parliament enshrined the independence of the judiciary under the Bill of Rights, however required them to implement the will of the Sovereign Parliament. However, the supremacy of Parliament itself has been attacked on limits of judicial review4. The 1688 settlement introduced checks and balances in restraint of autocratic power. Theoretically, the Crown, House of Commons and the House of Lords could not pass any legislation to support a course of action unless they were accepted by the other bodies involved. However, the gradual erosion of the power of the House of Lords means that there is effectively no check on the House of Commons5. For example, the executive clearly carries out legislative functions and a prime example is the Law Commission. Additionally, the judiciary obtain their power from the Crown and there is a distinct overlap of functions between the powers, which should be separated for the effective application of the separation of powers and the efficacy of Parliament as check on the executive6. This is further compounded by the fact that the Prime Minister and Cabinet ministers are Parliament members and part of the legislature and the Prime Minister is head of the executive. This obfuscation of the theoretical separation of powers has ramifications for the procedure of passing Acts of Parliament. Parliament is essentially the legislative section of the British political system. As such, through the executive Prime Minister and the Cabinet, Parliament sanctions executive sovereignty in a party governmental system. Theoretically Parliament is a policy influencing body, relying on the executive to formulate policy and reacts to it and therefore the party machine reinforces power of the executive to initiate policy. Parliament is not therefore involved in the policy making process and has minor powers of initiation. Whilst government controls Parliament the passing of an Act of Parliament ultimately depends on control, possession of majority, loyal voting from supporters, the curtailing of debate and the control of drafting. This undermines the symbolic purpose of Parliament as a check on the executive, which is further highlighted by David Davis’ dramatic resignation in protest at Labour’s 42 day detention plans The speed with which the legislation was passed through Parliament suggests that Parliament is effectively a tool to rubber stamp politically motivated reform as opposed to ensuring transparency in the executive7. A parliamentary bill has three stages namely; initiation, formulation and implementation. If the most relevant MPs are likely to support the bill, then the second part is Parliamentary formulation and drafting, which is often according to how government want it to appear on statute. At this stage, MPs have little or no influence. As such, whilst Parliament is a public arena and supposed to justify its bills, there appears to be little difference in the bill during the various stages through Parliament, with an often assured passage. This is further highlighted by the affect of the Parliament Acts of 1911 and 1949. The Parliament Act 1911 highlighted the supremacy of the House of Commons by limiting the suspensory veto powers of the House of Lords. As such, provided the provisions of the Parliament Act are complied with, legislation can effectively be passed without the approval of the House of Lords. Additionally, the Parliament Act 1949 further signified a reduction in the power of the House of Lords by reducing the timeframe within which it could delay bills from two years to one. Additionally, the Parliament Acts of 1911 and 1949 both permit amendments and constant constitutional reform through an Act of Parliament. To this end, it is argued that the sovereignty of Parliament enables Parliament to be the only body with power to effectively amend the constitution8. Additionally the constitutional convention of Royal Assent whilst theoretically granting the right to withhold and veto a bill; is rarely ever invoked9. Under modern constitutional convention, the Sovereign acts upon the advice of the minister, who in turn rely on the support of Parliament, further rendering it highly improbable that the Sovereign would withhold assent. This was indeed acknowledged by John Major’s response on the Modernisation of Parliament10 where he asserted that “the main reform we need to change is the relationship between Parliament and the Executive, which has become imbalanced over the past 20 years11”. To this end, it is submitted that the fusion of the Executive and Legislative has undermined the democratic ideal of separation. Nowhere was this more evident than the fusion between Executive and Legislative, where the Executive is drawn from the Legislative, indeed from the leadership of the majority party in Parliament12. Furthermore, the Executive actually sit as members of the central legislative body of the House of Commons, effectively resulting in Executive domination of Parliament13and that it is precisely this relationship that needs to be addressed in any agenda for constitutional reform. Furthermore, the presence and role of Law Lords in the House of Lords questioned the practically applicability of the separation of powers. By virtue of convention, Law Lords hear appeals and the Supreme Court of Judicature Act 1875 confirmed the role of the House of Lords as the highest jurisdictional body for appeal. This duality of purpose of the House of Lords as Legislature and Judiciary clearly supported Lloyd of Berwick’s assertions that “we do not in this country have what is often referred to as the separation of Powers”, which further asserts the sovereignty of Parliament. Conversely, the tension between European Community law (EC) and national law is arguably the most debated topic of constitutional law14. The convention of Parliamentary supremacy is rooted within the British constitution as a fundamental limb of the separation of powers doctrine15and Dicey argues that there is no limit to the legislative competence of Parliament and that it is absolutely sovereign16 However, the incorporation of community law through the implementation of the European Communities Act 1972(the ECA), which expressly gives legal effect to EC law has led to the creation of what has been described as “a new legal order17”, directly attacking traditional constitutional convention of national sovereignty18. Section 2(4) of the ECA provides that “any legislation passed or to be passed… shall be construed and take effect subject to” the enforcement in the United Kingdom of directly effective rules of Community law. Section 3 further provides for a direct duty for UK courts to determine questions of community law in accordance with principles laid down by the case law of the European Court of Justice (ECJ). The threat to Parliamentary Sovereignty and the separation of powers from EC initiatives has further been fuelled by the implementation of the Human Rights Act 1998\(HRA), which has been argued to exercise an extreme force over the entire political and legal system within the UK19 and as such, an Act of fundamental constitutional importance. The HRA incorporated the European Convention on Human Rights (ECHR) into UK law and the preamble to the HRA states that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”20. The HRA has been labelled as one of the most important domestic legal developments for a generation21. Furthermore, section 2(1) of the HRA asserts that “A court or tribunal, determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights22. Moreover, section 3(1) imposes a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Conversely, the established convention that Parliament cannot bind its successors has led commentators to argue that theoretically both the ECA and HRA could be repealed by Parliament and as such, do not in reality change the relationship between EC law, national supremacy and the separation of powers23. Whilst this may be so in theory, the political machinations of Government demonstrating a bias for cohesion and collaboration with the EC renders it highly unlikely that Parliament will repeal the ECA and the HRA on policy grounds. For example, the sentiments of supremacy were reiterated in the case of Transport, ex p Factortame (No.224), where it was held that the principle that an injunction could not be obtained against the Crown could be set aside if it prevented the granting of interim relief in a dispute governed by EC law. This major shift saw the House of Lords expressly acknowledging primacy of EC law over national legislation and demonstrated the limitations on Parliamentary intention being implemented if legislative provisions contravened rights under EC law25. In addition to the radical shift in constitutional convention, the Factortame decision also highlighted the conflict between established constitutional rights and widening concepts of democracy imported through the primacy doctrine26. The Factortame decision was further significant due to the House of Lords’ effective entrenchment of the ECA in fettering continuing supremacy of Parliament, which contradicts the convention that Parliament cannot bind its successors27. In fact some commentators have treated the Factortame interpretation of ECA as empowering the doctrine of implied repeal28. Sir William Wade described this as a constitutional revolution, whereby “Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible”29. Additionally, if we consider these developments regarding the tension between Community law and national sovereignty in context of the HRA, the UK courts have a positive duty to apply Convention rights. As such, section 3 of the HRA requires UK judicial authorities to interpret any legislation whether primary or subordinate in a manner which is compatible with Convention rights. Prior to the implementation of the Act, the function of the courts in relation to Parliamentary legislation was limited to the interpretation and application of that which was placed before them30. However, notwithstanding the implications of the decision in Factortame regarding the supremacy of EC law, whilst the legal position regarding the impact on sovereignty remains open to debate, the direct incorporation of the ECHR into national law arguably goes further whereby the role of the judiciary is to act as guardian to individual human rights. This clearly obfuscates the role of the legislature and the judiciary, which forms part of the fundamental constitutional convention of separation of powers. To circumvent this obvious constitutional problem, Lord Irvine of Lairg’s comments during the Parliamentary debate on the HRA argues that the Act retains the classical principle of parliamentary sovereignty, while maximising protection to individuals31. Indeed the debates asserted that section 3(2) of the HRA guarantees that “courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the Convention rights…. It is then for the government and Parliament to consider what action should be taken”32. On this basis, the above analysis demonstrates that whilst the HRA enables courts to rule a legislative provision is incompatible with the rights protected by the Convention; the principle of parliamentary sovereignty prevents courts from holding that provision invalid. As such, this clearly begs the question as to how efficacious the HRA is in protecting the fundamental freedoms guaranteed by the HRA. This is further highlighted by the reluctance of the national courts to undermine the separation of the powers doctrine in reality and questions “democracy” notions under a completely sovereign Parliament. Moreover, there is clearly an inherent tension in the supremacy debate and the fusion of the separation of powers. To this end, whilst the Constitutional Reform Act 2005 was clearly welcome in recognising the need for the UK to redress the inconsistencies and internal contradictions in the previous application of the separation of powers, the Act missed an opportunity to address the “channels of communication” between the three organs and it remains to be seen how far the Act will go to improve the doctrine of the separation of powers in practice, which further perpetuates the current uncertainty regarding the sovereignty of Parliament. Word Count: 2129 Bibliography H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Leyland., & Papworth (2006) Textbook on Administrative Law. Oxford University Press. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. Franz C Mayer (2005) Competences- Reloaded? The vertical division of Powers in the EU after the New European Constitution, 3 the Journal of International Constitutional Law 493. Montesquieu., “The Spirit of Laws” (1748) reported (2002) Prometheus Books, pp.19-28. C. Turpin & A. Tomkins., (2007). British Government and the Constitution: Text and Materials. 6th Edition Cambridge University Press. . H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Lord Woolf., (2005). Singapore Academy of Law A, Constitutional Protection without a Written Constitution. Lord Woolf., (2004) “The Rule of Law and a Change in the Constitution”. Volume 63(2) Cambridge Law Journal. Lord Woolf., (2001). Judicial Law Handbook. 3rd Revised Edition Hart Publishing. Statutes European Communities Act 1972 Human Rights Act 1998 Constitutional Reform Act 2005 European Convention on Human Rights. Websites www.lawcom.gov.uk www.opsi.gov.uk www.justice.gov.uk Read More