Separation of Powers in UK Law - Essay Example

The separation of powers under UK law is founded on principles of constitutional law. It is perhaps best understood by reference to Dicey’s rule oflaw which encapsulates three guiding principles. First and foremost, the law stands supreme over arbitrary powers and this includes broad discretionary governmental powers. Secondly, all citizens, regardless of rank and file, are equally accountable to the laws, as administered in the courts. Thirdly, constitutional laws do not provide the source of the rule of law but is the consequences of the administering of the law via the judiciary.1 Section 4 of the Act of Settlement 1700, comports with Dicey’s concept of the rule of law and sets the basic framework of the UK’s constitution. Section 4 mandates that “the laws of England are the birthright of the people.”2 Dicey’s definition of the UK’s constitution, together with Section 4 point to the significance of the separation of powers under the British constitution. To this end, Dicey formulated what he referred to as the “twin pillars” of the UK’s Constitution which essentially places Parliamentary sovereignty as the backbone of the twin pillars of the UK Constitution. Dicey explains that Parliament: “…has under the British Constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”3 This hypothesis is likewise apparent in Lord Campbell’s address in Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 which reads in part as follows: “...all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a bill has passed both houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, what was done to it previously being introduced, or what passed in Parliament during the various stages of its progress through both houses of Parliament.”4 Similarly, Lord Morris said in Pickin v British Railways Board [1974] AC 63 that the courts’ function is to “administer the laws which Parliament” enacts.5 Although there is an onerous process in Parliament for the passing of a bill, once that bill has been passed into law “there is finality unless and until it is amended or repealed by Parliament.”6 As for the courts, “there may be argument as to the correct interpretation of the enactment” however, there cannot be any discussion as to whether or not the act “should be on the statute book at all.”7 In the UK there is no codified Constitution, such as that found in the US and other Western democracies. The Constitution of the United Kingdom originates from a long history of both statutory provisions and common law principles. This makes it entirely difficult to define the Constitution of the UK, but the mere existence of so many reference points, speaks to its significance. While technically there is no significant difference between the authority of both common law and statute, Parliament has the authority to engage in constitutional reform by introducing Acts of Parliament. In this regard, Parliament has the authority to modify and/or repeal both statutory and common law.8 The UK Constitution is predicated on the theory that all sovereignty belongs to Parliament and cannot be entrenched.9 In Mothenson v Peters 8 F (J.C.) 93 Lord Dunedin also refers to the essence of the UK Constitution in the context of parliamentary sovereignty . Lord Dunedin explained that: “…for us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme and we are bound to give effect to its terms”.10 Lacking uniform codification, much of the UK Constitution is found in Statutory form such as the Parliament Acts 1911 and 1949, the Representation of the People Act 1969 or the Scotland Act, 1998.11 UK Constitutional Law is also found among common law principles which is a consequence of judicial interpretation and application. Common law is a collection of principles of law developed by virtue judicial precedent.12 Historical documents contributing to the development of UK Constitutional law are recordings such as the Magna Carta of 1215, the Petition of Rights 1628 or the Bill of Rights 1689. These historical documents are not statutes but are constitutional in nature and are deeply entrenched in the rule of law in the UK.13 Conventions also form part of the UK Constitution. These conventions include but are not limited to those relating to royal prerogative, collective ministerial responsibility and the vote of no confidence.14 UK Constitutional law is also derived from international Treaties such as the Treaty of Rome, the UN and/or NATO.15 Even so, the UK courts have a tendency to stress the binding superiority of legislative provisions over other provisions in the application of Constitutional law. For instance in Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128 Lord Diplock said, “...in constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation...I entertain no doubt that the courts have jurisdiction to declare [subordinate legislation] to be invalid if they are satisfied that in making it the minister who did so acted out with the legislative powers conferred on him...; and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to it being made (latent defects)”.16 The lack of a clear definition of the UK Constitution renders it flexible, particularly since a lack of clear definition makes it possible for alteration and modification without having to adhere to some rigid process. Any Parliamentary statute, court judgment or foreign treaty may add to and/or change the constitution quite simply because each of them contribute to the formation of the UK Constitution. For example, the Human Rights Act 1998 as well as the Maastricht Treaty 1991 each contribute to the scope and range of the UK Constitution and can therefore be said to form a part of it.17 The UK is a unitary state and as such the ultimate power of sovereignty exists at its centre. Be that as it may, that power can be delegated to other regions within the UK, but Parliament remains at liberty to revoke and retain that power at anytime. Turpin points out, that whenever Parliament delegates its powers “we may say that sovereignty has been lent rather than given away.”18 The power to revoke delegated power however, prevails. Laws LJ explained that “being sovereign, Parliament cannot abandon its sovereignty.”19 The parliamentary system of government in the UK is comprised of the executive members of the Cabinet which are accountable to Parliament. The House of Commons, who are publically elected officials appoint the Cabinet Ministers.20 As a result there is a fusion of powers rather than a separation of powers. Since the Government sits in the House of Parliament the executive members of the Cabinet and the legislature overlap to a certain degree. Royal Assent which originates from the Crown is also a member of Parliament. Ultimately both the Government and the Courts are the Crown’s subjects.21 The UK’s parliamentary sovereignty is primarily concerned with the link between Parliament as legislators and the courts who are responsible for interpreting and applying laws enacted by Parliament. Parliamentary sovereignty is only limited by the face that Parliament cannot bind itself. Put another way, Parliament is omnipotent and as such may not prevent the repeal of its enactments. The consequence of this limitation means that an earlier Act of Parliament can always be nullified by a later act of Parliament. In Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 753, Lord Justice Maugham explained that: “the Legislature cannot, according to our constitution bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal”.22 This tenet of Parliamentary sovereignty and the UK’s Constitution is known as the doctrine of implied repeal. The doctrine of implied repeal was visited in Vauxhall Estates Ltd V Liverpool Corporation [1932] 1KB 733. The relevant statutes in this case were the Acquisition of Land (Assessment of Compensation ) Act 1919 on the Housing Ac t 1925. The wording in Section 7(1) of the 1919 Act could have been interpreted to bind subsequent Parliaments. Avory J ruled that: “…we are asked to say that by a provision of this Act of 1919 the hands of parliament were tied in such a way that it could not by any subsequent Act enact anything, which was inconsistent with the provisions of the Act of 1919. It must be admitted that such a suggestion as that is inconsistent with the principle of the constitution of this country.”23 Avory J went on to state that the relevant provisions of the Housing Act 1925 did not correspond with 1919 Act and as a result “the earlier Act is impliedly repealed by the later.”24 The UK courts have remained entirely committed to the concept of parliamentary sovereignty and the doctrine of implied repeal. Sir Robert Megarry said in Blackburn v Attorney General [1983] CH 77 that: “…and as a matter of the law the Courts of England recognize Parliament as being omnipotent in all save the power to destroy its omnipotence.”25 This approach to Parliamentary sovereignty was exemplified by Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645 who explained that: “…it is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.”26 In the event an Act of Parliament is inconsistent with international law the courts of the UK will not question the validity of the UK Parliamentary provision but will apply it instead. In Cheyney v Conn [1968] 1 ALL ER 779 the applicant argued that funds from tax allotted by virtue of the Finance Act 1964 would be used in a manner that was inconsistent international law. The court ruled that it was not within its jurisdiction to consider the fairness of the UK statute. All that the court could do was apply the statute despite any unfair consequences that might flow from its application.27 Similarly in R v Jordan [1967] Crim L.R. 483 in respect of the Race Relations Act 1965. The appellant submitted that the Race Relations 1965 Act contravened the rights to freedom of expression. Again the courts refused to consider whether or not the Act was fair or not and insisted that it had a residual duty to apply the statute once it had been duly enacted and passed by Parliament.28 This superiority of Parliament approach was again taken in Manuel v AG [1982] 3 All ER 786. In this case Indian chiefs of a Canadian tribe attempted to obtain declaratory relief that invalidated the Canada Act 1982. The applicants argued that although the Act of 1982 had purported to have consulted the people it had not done so and was invalid as a consequence an invalid Act. The Court of Appeal ruled that it no such power was invested in the courts particularly since that Act was passed. Megarry V-C said that “the duty of the court is to obey and apply every Act of Parliament, and the court cannot hold any such Act to be ultra vires”.29 Although the UK courts have displayed a propensity to defer to Parliamentary sovereignty they do have wide discretionary powers for the purpose of interpreting statutory provisions. These discretionary powers are founded on the principle that Parliament is not able to foresee each and every circumstance which might arise under a particular Act of Parliament as a result it is quite common for statutes to contain ambiguous provisions. Ultimately it is up to the courts to interpret and apply the law accordingly. A.W. Bradley explains that: “...once the political decision has been taken to make a change in social or economic policy, and this decision has been expressed in legislation, it is for the judges to decide authoritatively on the extent of the new rights and duties which that legislation creates. In this respect, the courts have an essential part to play in ensuring the government is conducted according to law.”30 In other words, law evolves as a concerted effort shared by both Parliament and the courts. Judges have it within their powers the ability to utilize two tools which effectively confers upon them, the residual power to control the development of the law. These tools are the doctrine of stare decisis or case law precedents and statutory interpretations.31 Precedents are created by the courts but ultimately parliamentary sovereignty reigns supreme because Parliament can legislate against precedents.32 In this regard, Parliament has the last call. Ultimately, the separation of powers under the ill-defined UK constitution ensures a measure of cooperation between the courts and the legislators who are in their own right lawmakers. Although Parliament may have the final say, the courts have the authority of judicial review to ensure that Parliament is accountable to the public.33 In the final analysis, the separation of powers within the ambit of the UK Constitution is divided so that both Parliament and the courts, the twin pillars of the UK Constitution are accountable to the will of the people. In this regard, the public interest is not expressed in a single codifying Constitution but by virtue of various documents, statutes, precedents and conventions. The fact that the UK Constitution is lacking in definition does not take away from the significance of public accountability under the UK Constitution and its resulting separation of powers. Bibliography Act of Settlement 1700 Blackburn v Attorney General [1983] CH 77 Bradley, A.W. (2000) “The Sovereignty of Parliament: In aPerpetuity?”Cited in Jowell, J and Oliver, D (eds), The Changing Constitution. Oxford: Oxford University Press Cheyney v Conn [1968] 1 ALL ER 779 Craig, Paul. (2001) The Executive and Public Law: Power and Accountability in Comparative Perspective. Oxford University Press. Dicey, A.V.(1982) Introduction to the Study of the Law of the Constitution. London: MacMillan. Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 753 Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128. Jowell, J and Oliver, D (eds), (2000) The Changing Constitution. Oxford: Oxford University Press Madzimbamuto v Lardner-Burke [1969] 1 AC 645 Manuel v AG [1982] 3 All ER 786 Mothenson v Peters, 8 F(J.C.) 93 Pickin v British Railways Board [1974] AC 63 R v Jordan [1967] Crim L.R. 483 Slapper, G and D. Kelly. (2001) The English Legal System. London: Cavendish Turpin, C, (2002) British Government and the Constitution: Text, Cases & Materials, Butterworths Vauxhall Estates Ltd V Liverpool Corporation [1932] 1KB 733 Zander, Michael. (2001) The Law Making Process (Law in context) Cambridge University Press Read More