Jan 12, 2018 in Law

Constitutional and Administrative Law

In order to maintain both democracy and the legal system within a state, separation of powers is necessary. Fundamental to the essence of the principle of governing conduct, is a sovereign judiciary. Subsequent to the enforcement of the Human Rights Act in 1998 and the Constitutional Reform Act in 2005, the judicial rule was taken away from parliament. However, more power was granted to Judges than had been in their possession before, the most significant two facets of authority being that the court may make a declaration of incompatibility of Act of Parliament and the Growth of Judicial Review which, should there be a need, may interfere with a government decision. Be that as it may, however, because of the UK government structure, control over the court still belonged to the British parliamentary government. Nevertheless, when seen in a prudential light, this is a more constitutionally desirable arrangement because it is able to balance the power among the three branches, and overall, the court can guarantee the rule of law by keeping the other two organs in check. This is the very meaning of the separation of power and rule of law.

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The impact of the Human Rights Act 1998

The doctrine of parliamentary sovereignty is one element of the British constitution. Dicey defines it as follows:

“Under the English constitution, the right to make or unmake any law whatever; and further no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”.

Legally confirmed in Madzimbamuto v Lardner-Burke, legal rule which regulates the liaison between the courts and governing body is the main constituent of this doctrine. Here, Lord Reid established that:

It is often said it would be unconstitutional for the UK 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 could not hold the Act of Parliament invalid.

Since 1951,the UK has been a part of the European Convention of Human Rights. This convention allows the courts of this country to refer to the requirements of the Convention to helpdecipher vague laws. Following the enforcement of the Human Rights Act of 1998 in 2000, the need for additional courts rose. Section 3 states:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights.”

Agreed upon by the courts is the fact that more than the ordinary constitutional reading is obligatory, in which case courts would quit the common language of the decree to steer clear of ridiculous consequences. A judge, if required, could interpret words of a statute to suit desired compliance with the Convention. As said by Lord Strey, in R v A (Complaint’s sexual history):

“The techniques to be used would not only involve the reading down of express language in a statute but also the implication of provisions.”

The most significant power given to judges by this act is the ability to make a “declaration of incompatibility” according to S4. This means that if there is a clear breach of a Convention Article and it is not possible to interpret legislation in a manner which is consistent with Convention rights, although the court has no power to declare the Act void (Parliamentary Supremacy), the courts are allowed instead to make a declaration of incompatibility. All that is required is for the courts to the state the “incompatibility” of the Act of Parliament in question with human rights. However, this privilege is restricted to the High Court and above. After such a declaration, Parliament then has a choice on whether to modify or rescind the offending Act. This authority was given after the declaration of incompatibility in R (on the application of H) v London North and East Mental health Review Tribunal. Here the argument of the court was that, to place the burden of proof on a restricted patient to demonstrate that he was no longer challenged with mental disorder deserving confinement was a breach of Article 5. It should be noted that such a declaration does not affect the validity or operation of primary legislation s4 and as such, it is not binding on the parties.

The Impact of the Constitutional Reform Act 2005

Another element of the British constitution is the rule of law, which, to convey the essential adequacy of Britain’s constitutional arrangements, is often invoked as is democracy. The main idea behind the rule of law in summary is that all acts of government must be legally authorised. A classic illustration is found in Entick v Carrington. Nevertheless, no written constitutional document exists to support the UK constitution and there is no formal separation of power. Any decision made by the House of Lords as the highest court in UK, would be binding in the all other courts. The House of Lords was also one of the two houses carrying out legislature function in Parliament. Life titles were given to the senior judges to make it possible for them to be members of the legislature as “Law Lords” in the House of Lords.

Fusion of legislative and judicial functions was halted by creating a Supreme Court for the United Kingdom, separate from the House of Lords through Constitutional Reform Act of 2005. Under this act, there would be no life peerages given to Supreme Court justices, and there would be disqualification from sitting or voting in the House or a committee of the House, of any serving judge who also happened to be a member of the House of Lords. In addition this, although the Lord Chancellor would not preside over the House of Lords in its function as the final court of appeal, he would remain a Cabinet minister, though not the head of judiciary. This may not seem to be a very noteworthy modification at first glance, but in practice, it has a deep-seated impact.

In a constitutional democracy established upon the rule of law, judicial review of executive action is an essential process. In such cases, it is needful that all decision makers exercise proper adherence to procedure, as well as the full extent of their powers, regardless of the constitutional stipulation made in appealing against official decisions. In this way, decisions made by public authorities will conform to the law and the court can ensure this, as well as the observation of standards of fair procedure. Judiciary independence is key to the realisation of this idea.

Before the Act of 2005, judges sat both in the House of Lords and court, and the Lord Chancellor was even member of government. The Judiciary had restricted independence because they had direct involvement in interest conflicts between the legislature and executive branches. This could be the explanation for the overturning of a number of judiciary review cases on appeal to House of Lords. For example, in the case of an unreasonable traditional judicial review ground, the court could neither give an accurate definition nor supply any assistance. Furthermore, Associated Picture House Ltd v Wenesbury Corporation assessment established an absence of structure and too high a standard to achieve. For many years, it has been under criticism. Proportionality has clear structure and is another ground which also has an exact definition and a reasonably achievable test. The Court of Appeal allows a number of cases on the ground of proportionality, e.g. R (Daly) v S o S Home Department, R(Alcombury) v S o S Environment. At R (Association of British Civilian internees) v S o S Defence, the judge stated that justification for the retention of the Wednesbury test is difficult to see. All are overturned by House of Lords. In my opinion, the decision made by the House of Lords was sufficient for policy reasons. Therefore, separation of the House of Lords from judiciary system ensures that there would not be any apparent bias involved. That could be one reason why judiciary review cases and part increased rapidly in recent years.

The Executive still has stronger power than any other branch

In 1867, Bagehot wrote about the “efficient secret” of the British constitution. He described it as “the close union, the nearly compete fusion, of the legislative and executive powers.”Fifty years ago, a senior politician wrote:

“Government and Parliament, however closely intertwined and harmonized, are still separate and independent entities, fulfilling the two distinct functions of leadership, direction and command on the one hand, and of critical discussion and examination on the other.”

Some formal significance still remains although the theory of an earlier age is mirrored, rather than the reality of the Westminster-Whitehall relationship. The only formal position is that of the Queen, and the ministers belong to one part or another of the House of Parliament. The parliament is responsible for their acts as ministers, and as long as the Commons are in full support of the cabinet, the cabinet possesses vast control of the work of the House. The Select Committee in 1978 concluded that:

“The balance of advantage between Parliament and Government in the day to day working of the Constitution is now weighted in favour of the Government to a degree which arouses widespread anxiety and is inimical to the proper working of our parliamentary democracy.”

The effects, which include weakening the government’s accountability to Parliament, are not limited to facilitating legislation. An assured majority in the Commons goes hand in hand with the presence of cautious MPs whose work is to scrutinise the executive, and the system of select committees has supported such inspection since 1979, although this gives no certainty of the achievement of government accountability.

The executive exercises legislative functions most extensively with regard to secondary legislation. Parliament can delegate legislative powers to the government at will, since no legal limit is in place, and the ability to supplement or modify primary legislation by making regulations is a welcome convenience for ministers and other departments.

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