Exam Answer Commentary
Would you agree that the notions of the separation of powers and the rule of law are entirely overshadowed in the UK constitution by the doctrine of parliamentary sovereignty? Take account of the impact of the Human Rights Act 1998 and Constitutional Reform Act 2005 in your answer.
This question is very commonly asked. Clearly, the assumption that parliamentary sovereignty is the dominant feature of the constitution should be tested. The question of how far the doctrine has been affected by the UK's membership of the EU should be touched on, but cannot be considered in detail if the other two main issues are to receive adequate coverage. Obviously, it amounts to a very important issue in itself (which is considered in Chapter 2), but it would not be appropriate to examine it in detail here. In considering the doctrine of the separation of powers, comparisons can usefully be made with other jurisdictions, such as the USA. Mention of specific aspects of the Human Rights Act 1998 (HRA), specific European Convention on Human Rights (ECHR) Articles and relevant case law is essential in dealing with the final pArt of the question.
Essentially, the following matters should be discussed:
- the concept of the rule of law as put forward by Dicey;
- the extent to which the rule of law finds expression in the constitution;
- the doctrine of the separation of powers as propounded by Montesquieu;
- instances in which the doctrine is breached or observed;
- the impact of the HRA and the Constitutional Reform Act on both of the above;
- the meaning of the doctrine of parliamentary sovereignty;
- the weakening of the doctrine that has taken place due to Britain's membership of the EU.
The question presupposes that parliamentary sovereignty is the main basis of the UK constitution and that the two other doctrines mentioned do not represent a constraint on it. It will be argued that both of these assumptions are overstated, although it will be accepted that parliamentary sovereignty is the most significant feature of the UK constitution. It will be argued that while the HRA has strengthened aspects of both the rule of law and the separation of powers, its enactment has not affected the basic subordination of both to parliamentary sovereignty.
This paragraph reinterprets the question so that the propositions contained within it are more clearly defined. It also provides a series of signposts to show the examiner where they will be taken during the essay.
Before determining whether the rule of law can be said to be overshadowed by parliamentary sovereignty in the British constitution, it must be decided what is meant by the concept because the interpretation adopted will clearly affect the issue of relevance to be addressed. The concept of the rule of law as influenced by Dicey (The Law of the Constitution, 1971) appears to encompass the following notions: first, that powers exercised by government must be founded on lawful authority as opposed to being arbitrary; second, that citizens should be equal before the law; and, third, that the law should be clear. Can it be said that these notions find expression in the UK constitution?
This first substantive paragraph provides a definition of the key concepts, so that the examiner understands what the writer believes them to mean. This is essential in many essays, where terms could be argued to mean different things. It is also useful to define terms early on, so that the writer is also clear on what they mean by the key points raised through the propositions in the essay.
Historically, constitutional lawyers in this country have prided themselves on their adherence to the rule of law, as upheld by judges in a number of famous cases.
This sentence introduces the point being made in this paragraph.
One of these is Entick v Carrington (1765), in which agents of the King, acting under a warrant issued by the Secretary of State, broke into the house of Entick, alleged to be the author of seditious writings, and removed certain of his papers. It was found that because the action was justified by no specific legal authority, it was a common trespass, for which the Secretary of State was liable in damages.
This sentence provides evidence for the point being discussed.
If government is under the law, in the sense that any actions it takes must be authorised by law, then since the courts are empowered to make the authoritative determination of what the law is, this must mean that the government is in a sense under (and therefore obliged to obey) orders of the courts, expressed in the form of injunctions. The normal sanction for failure to obey an order of the court is a finding of contempt of court. Perhaps surprisingly, it was only in the case of Re M (1993) that it was settled that ministers of the Crown were obliged to obey court orders and risked a finding of contempt if they did not. The notion, expressed in both of the above cases, that exercises of governmental power, pArticularly those that impact upon the liberty of the citizen, must have a basis in law, has now found a powerful reinforcement through the incorporation of the ECHR into UK law through the HRA.
The writer includes the HRA here, as it is pertinent to the point being made AND it is also important in relation to the question. The writer has linked the point to the question, which is important for marks in the higher classifications.
The Convention rights are now binding on all public authorities, including courts, which act unlawfully if they act incompatibly with them (s 6(1)). Under s 3(1) of the HRA, “So far as it is possible to do so, all legislation must be construed compatibly with the Convention rights”, although if any primary legislation cannot be so construed, it remains valid and of full effect — the courts are given no strike-down power. Certain Convention rights permit interferences with them in limited circumstances: Art 2 (right to life); Art 5 (personal liberty); Art 8 (privacy); Art 9 (freedom of religion); Art 10 (freedom of expression); and Art 11 (freedom of assembly and association). In order for such interferences to be lawful under the ECHR, the government must first show that the interference was ‘prescribed by’ or ‘in accordance with the law’ — that is, that it had a basis in existing domestic law.
These two sentences provide more evidence to allow the point to be expanded.
In other words, an identifiable legal basis authorising the interference must be shown: mere Executive discretion cannot suffice.
This sentence provides the writer's analysis, based on his or her evidence, about the point being made.
It was on this basis that the UK was held to be in violation of Art 8 of the ECHR in the case of Malone v UK (1985). The Constitutional Reform Act 2005 states in s 1 that “it does not affect the existing constitutional principle of the rule of law”, thus giving statutory recognition of its constitutional importance, for the first time.
This sentence concludes the paragraph by demonstrating that the rule of law has an important place in the UK constitution and has been given statutory protection in the recent Constitutional Reform Act 2005. This is important as The CRA 2005 forms part of a central proposition in the question.
It could be said that arbitrary power, although apparently contrary to the rule of law as expounded by Dicey, is exercised by ministers in the sense that legislation is often enacted conferring on them a broad discretion to act as appears appropriate in any particular circumstance. Section 365(5) of the Communications Act 2003 (replacing the similar power under s 10 of the Broadcasting Act 1990) provides an example of a very widely drafted discretion: the Home Secretary can order Ofcom, the independent broadcasting regulator, by notice to direct broadcasters to “refrain from including in their licensed services any matter or descriptions of matter, specified in the notice”. Once a discretion of this width is granted to a minister, might it be said that he can act in a manner that is unregulated by the law? Clearly, in a narrow sense, the minister is acting within the law because the discretionary power is lawfully granted. However, such an answer begs the question at issue. To some extent, it may be said that the minister is indeed able to exercise arbitrary power in the sense that any specific action has no specific legal authority; the only check on such actions is represented by the availability of judicial review. Where the exercise of the power in question would impact on a right protected by the ECHR, as in the example given above (Art 10) then, under s 3(1) of the HRA, the courts will be obliged to construe the power granted narrowly, so that it no longer authorises interference with Convention rights, if that is possible, and to strike down actions that do infringe Convention rights (s 6(1)) unless the statute in question clearly mandates or authorises such infringement (s 6(2)). This will considerably reduce the broad discretion that is
In the Harvard system, the writer would normally provide full citations in a bibliography at the end of the essay.
Many constitutional law scholars are concerned that there should not be recourse to arbitrary use of power, and wide unchecked discretion has the potential to lead on to arbitrariness. Consequently, the breadth and depth of discretion, and the mechanisms to control the exercise of discretion are central to the rule of law. The question appears to argue that parliamentary supremacy overshadows the rule of law and thus discussions about discretion, the rule of law, parliamentary supremacy and courts checking executive power are pertinent.
Statutory references below have been emboldened for ease of reference.
What of the notion that the law applies equally to all citizens, which implies that no one is above the law? The notion could be attacked by citing numerous exceptions to it. Members of Parliament enjoy complete civil and criminal immunity in respect of words spoken during ‘proceedings in Parliament’ by virtue of the Bill of Rights 1688, while judges also enjoy various legal privileges. Diplomatic and consular immunities arise under the Diplomatic Privileges Act 1964 and the Consular Relations Act 1968, and these have been left undisturbed by s 16 of the State Immunity Act 1978.
These statutory references provide evidence for the point being made, namely the extent to which the law applies equally to all. The writer does not explain each of these statutes in detail, but instead provides them as illustration for the point that diplomats have certain immunities not enjoyed by the rest of us.
However, it might be suggested that these examples of exemptions granted and recognised by law support the argument that the rule of law exists in the UK constitution, as they imply that there is a need to create exceptions to a general principle that would otherwise apply to all of the groups mentioned. It is notable that in A v Secretary of State (2004), one of the key grounds for finding the legislative scheme allowing for detention without trial in Belmarsh prison of terrorist suspects incompatible with the Convention, was that it unlawfully discriminated between nationals and non-nationals.
The third key element of the rule of law is equal application of law to all. This paragraph seeks to provide evidence in a UK context both for and against this proposition, including a court ruling that suggests that unlawful discrimination may be viewed as contrary to the rule of law. This paragraph is full of evidence to allow the reader to consider both sides of the argument.
Can it equally be said that the doctrine of the separation of powers is of some relevance to the UK constitution, even though it is possible to find instances where it is clear that the doctrine is not being applied? The doctrine, mainly developed by Montesquieu and his followers, encompasses the notion that the three main organs of government are the legislature, the Executive and the judiciary, and that only one class of function should be in the hands of each body. For example, the judiciary should apply, not create, law. Thus, a system of checks and balances between each branch of government will be provided. It is not hard to find examples of the violation of this doctrine. Judges can create law, in the sense that they can declare and develop the common law. Declaring the common law clearly means creating it, as the common law often has to meet fresh situations that have never previously been addressed. In Shaw v DPP (1962)
Case names have been italicised to distinguish them from standard text
For example, the House of Lords declared that the common law included a doctrine known as ‘conspiracy to corrupt public morals’, although no precedents were cited demonstrating that it had ever existed except as a variant of the power exercised by Star Chamber judges to punish offences against conventional morality.
This paragraph moves on to the next part of the question, namely the place of the separation of powers in the UK constitution and the extent to which it may be overshadowed by parliamentary supremacy. The writer begins some background explanations (backed up with evidence) to put the following separation of powers paragraphs in some context.
Ministers, who are members of the Executive, sit as members of the House of Commons, which is the legislative body. The Lord Chancellor used to be a walking contradiction of the separation of powers, as a Cabinet minister, head of the judiciary and a Law Lord, and Speaker of the House of Lords in its legislative capacity. However, the case of McGonnell v UK (2000), in which the Bailiff of Guernsey, an official with mixed functions similar to the Lord Chancellor's, was found to have violated Art 6 of the ECHR when he sat in judgment in a case involving legislation in the passage of which he had been involved as Speaker of the legislature, spelled the end of the Lord Chancellor's days as a judge, as confirmed in the Constitutional Reform Act 2005, discussed further below, which also removed many of his other roles.
The writer provides a very, very brief summary of the case, explaining only those facts that are essential for the reader to know in order to understand the point being made.
More importantly, it is well accepted by constitutional observers that the Executive can effectively determine the legislative output of Parliament, theoretically a separate body. As Calvert puts it, with perhaps a little exaggeration, “before the formally dramatic part of the legislative process even begins, almost all the terms of almost all (government) Bills are settled” (British Constitutional Law, 1985).
This paragraph provides some examples of how the separation of powers operates in a UK context, backed up with evidence including a quote. The Harvard citation method is being used in this essay.
It seems clear, then, that the separation of powers, if interpreted as connoting a rigid compartmentalisation of the functions of government, hardly exists in the British constitution, and indeed it appears that government could hardly be carried on if it were. However, if the doctrine is not interpreted literally, it may be argued that some aspects of government do reflect a recognition of its existence. Under the House of Commons Disqualification Act 1975, civil servants must resign their posts if they wish to stand for election to the House of Commons, as must professional full-time judges. Further, the number of government ministers permitted to sit in the House of Commons is limited to 95. Moreover, the growing significance of judicial review does not suggest that the separation of powers is irrelevant.
This analysis provides an introduction to the next sub-point being made in this paragraph.
Judicial review is generally recognised as an important and necessary check on the exercise of official power. Here again, the HRA has clearly had an impact: s 6(1), which makes it unlawful for a public authority to act in violation of a Convention right, represents a significant shift in power from the Executive to the judiciary. This is not, as some on the Right have complained, a shift in power from Parliament to the judiciary because, under the HRA, there is no power given to judges to strike down primary legislation. However, there is a shift from the Executive to the judiciary, because for the first time, the courts will be able to strike down actions not because they are outside the powers used to justify the actions or did not follow a fair procedure, but on the substantive basis that they violated human rights: ex p Limbuela (2005) is a striking example. The freedom of action of the Executive — the area of discretion that it enjoys — is, as a corollary, substantially curtailed. Again, however, this shift in power will occur only in relation to areas of law that touch on Convention rights.1
This paragraph concludes a point started in the previous paragraph, namely that the definition that one gives to the separation of powers (rigid or liberal), affects one's view of its operation in the UK. It also demonstrates that the concept is not fixed and is changing in the light of the HRA 1998, a key issue raised by the question.
The HRA has already had a more specific impact in terms of the separation of functions between the Executive and the judiciary. An example of what Stevens refers to as “the casual British attitude to the separation of powers” ((1999) OJLS 366) was the power of the Home Secretary to set sentences to be served by juvenile killers.
Harvard reference to the Oxford Journal of Legal Studies articles from which the quote comes. Some institutions will also want you to provide the author's surname too, to complete the reference.
Under the Crime (Sentences) Act 1997, the Home Secretary set a ‘tariff’ — that part of a sentence designed to satisfy the demands of retribution and punishment — and upon its expiry, the prisoner became eligible for release by the Parole Board, and would be released unless it was thought that he or she still constituted a danger to society. In effect, therefore, a sentencing function was being performed by a party politician and powerful member of the Cabinet. A challenge to the Secretary's power to set such tariffs was launched before the European Court of Human Rights, in reliance upon Art 6(1) of the ECHR, which provides: “In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” In T v UK; V v UK (2000), the Court found that the Secretary, as a party politician, could not be considered an ‘independent’ tribunal. The UK was obliged to implement that judgment as a matter of international law. A very similar decision was made by the House of Lords under the HRA in Anderson (2003), in which the incompatibility with Art 6 lay in the like involvement of the Secretary of State in sentencing adult life prisoners. Indeed, the Scottish decision in Starrs v Ruxton (2000), finding that the scheme for appointing temporary sheriffs was unlawful under Art 6(1) because it failed to guarantee their impartiality and independence from the Executive, indicates the bolstering effect which that Convention right may now have on the independence of the judiciary, a vital aspect of the separation of powers. However, it must be recalled that a statute (say) clearly granting a judicial function to a politician (as with the Home Secretary, above) or setting up a scheme for appointing judges that similarly violated Art 6(1) could not be struck down by the UK courts (ss 3(2) and 4(6) of the HRA).
This paragraph develops the role of the HRA 1998 within the British constitution and concludes the discussion on this part of the question.
A more systematic reorganisation of the UK constitution, in line with separation of powers principles, has been brought about by the Constitutional Reform Act 2005 (CRA), when it comes fully into force.
This sentence introduces the next proposition that is being considered.
This relates back to the question. The Act brings in a number of reforms designed to rationalise the UK's hitherto rather
The writer uses his or her own words to summarise the ideas within sections 17 and 18 of the CRA.
Perhaps most importantly, the Act puts in place a new system for judicial appointments, designed to bolster judicial independence. Previously, the most senior judiciary (the Law Lords, the Court of Appeal judges, the President of the Family Division and the Master of the Rolls) were appointed by the Queen on the advice of the prime minister. High Court, circuit and district judges were appointed by the Queen on the advice of the Lord Chancellor, as were recorders. In relation to the most senior positions (Law Lords and Court of Appeal judges), there was a system of ‘secret soundings’, whereby the Lord Chancellor would consult confidentially with existing judges at this level as to the merits of possible candidates for promotion. This system had been subject to widespread criticism for its lack of transparency and for its tendency to limit membership of the senior judiciary to a small elite of senior barristers, overwhelmingly, white, male and upper class (see, for example, K. Malleson, (2004) PL 102).
This reference provides support for the point being made, as well as providing a further reading pointer for the reader.
Prior to the CRA, a limited, non-statutory reform was undertaken by way of the creation of a Commission for Judicial Appointments, which, despite its name, did not make appointments, but oversaw the process. The CRA is a much more thorough going piece of reform, creating a full Appointments Commission, with a carefully balanced membership. Lord Mance, an existing Law Lord, has described its composition as “more nuanced and subtle than any found in any other European jurisdiction” ((2006) 25 CJQ 155).
The Commission does not actually appoint, but makes recommendations to the Lord Chancellor, who, in the case of the most senior appointments, then puts these to the Queen, or to the prime minister to put to the Queen (the Law Lords). Thus, formally speaking, senior politicians are still involved in the process; however, the Lord Chancellor's power to reject names put to him is highly restricted; Lord Mance has commented (
Latin abbreviation to indicate that the reference is the same as the one directly above.
the Lord Chancellor's powers to reject or require reconsideration [of names put to him] and his obligation to give reasons are restrictive to the point where it seems in practice to be almost inevitable that he will accept the Judicial Appointments Commission's recommendations.
Long quotes are usually indented.
The somewhat complex provisions of the Act indeed only allow the Lord Chancellor to ultimately reject one candidate recommended by the Commission. The Act therefore considerably strengthens the independence of the judiciary, both symbolically and practically, and, it is to be hoped, may lead to greater diversity in appointments.
The writer has provided his or her analysis of what the CRA provides in this context. This view is backed up by the evidence discussed earlier in this paragraph.
Moreover the Act specifically provides that the Lord Chancellor and other ministers have a duty “to uphold the continued independence of the judiciary” (s 3(1)) and, specifically, “must not seek to influence particular judicial decisions through any access to the judiciary” (s 3(5)). It is valuable to have so important a principle both of the separation of powers and of the rule of law (which is heavily dependent upon the independence of the judiciary) enshrined in statute.
This paragraph concludes the discussion of the CRA 2005 in the context of the separation of powers.
Nevertheless, overall, it must be acknowledged that the separation of powers in Britain is less clearly apparent than under some systems. In America, for example, the President and his Cabinet cannot be members of Congress, and the President may veto legislation but may not dissolve Congress. The courts can declare legislation enacted by Congress invalid on the ground that it is unconstitutional. In contrast, it is clear that the UK judiciary will refuse to hold legislation enacted by Parliament to be invalid (as a matter of the UK as opposed to EU law), as demonstrated in Pickin v British Railways Board (1974), although it did show itself willing in R (1991) to ignore a word used in an Act of Parliament. Furthermore, Parliament is free to enact legislation nullifying a decision taken in the House of Lords, as it did in the War Damage Act 1965, which followed the decision in Burmah Oil Co v Lord Advocate (1965). Article 7 of the ECHR, now binding on all public authorities save Parliament under s 6(1) of the HRA, states: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.” This Article reinforces the protection against non-retroactivity in criminal law but, since it is incorporated through the HRA, could simply be overridden by Parliament and therefore makes no formal difference to the separation of powers.
This paragraph considers evidence for and against the dominance of parliamentary supremacy, a key part of the question and the link between that and the separation of powers.
The reluctance of the judiciary to depart from the will of Parliament flows from the doctrine of parliamentary sovereignty, which — it should be acknowledged — is the most prominent feature of the UK constitution in a way that marks it out from other constitutions. Parliament can legislate on any subject and therefore could pass laws severely curtailing civil liberties without facing the possibility that such legislation might be declared unconstitutional. The HRA specifically declares that the incompatibility of any legislation with the incorporated Convention rights will not render that legislation void or deprive it of effect (ss 3(2) and 4(6)). Parliament's full powers to invade civil rights are thus maintained, at least as a matter of law.
This paragraph considers evidence for and against the dominance of parliamentary supremacy, a key part of the question and the link between that and the rule of law.
The potential for parliamentary sovereignty simply to overwhelm other principles of the constitution may be seen in the saga of the Regulatory Reform Bill 2006. As originally introduced, the provisions were startling: they “empower[ed] any Minister by order to make provision amending, repealing or replacing any legislation, primary or secondary, for any purpose, and to reform the common law to implement Law Commission recommendations”.
A quote, with the reference before it, namely the Regulatory Reform Bill 2006.
The Bill thus would have given Ministers “a … general power to legislate”
(House of Commons Regulatory Reform Committee, 1st Special Report, 05–6, emphasis added).
In this instance, Parliament's unlimited power would have enabled it effectively to hand over the power to legislate to the Executive. The episode thus reveals the potential for the separation of powers to be legally — but at the same time shows its potency as a political principle. Although passed by the Commons, the Bill raised widespread protests, in and out of Parliament: the powers were amended in the Lords so that such Orders could be made only for the purpose of “removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation”. This, while still a very wide power, at least avoided the wholesale transfer of law-making power to the government that the original proposals had allowed for.
The lack of legal restraint upon Parliament has both a positive and a negative aspect. It means that while Parliament can legislate on any subject, it cannot bind successive Parliaments. If it could, then obviously each successive Parliament would not be free to legislate on any matter. This aspect of sovereignty means that where there is inconsistency between a previous and a subsequent Act, the latter impliedly repeals the former to the extent of its inconsistency. Authority for this proposition derives from Ellen Street Estates Ltd v Minister of Health (1934), although it may now no longer be true as regards implied repeal of ‘constitutional statutes’ (Thoburn (2002)).
This paragraph takes another aspect of parliamentary supremacy and considers it in the light of the question.
This footnote provides further information that is not strictly necessary to answer the question, but may be of interest.
However, it may be argued that parliamentary sovereignty has been weakened by Britain's membership of the EU . After the ruling of the European Court of Justice in Factortame v Secretary of State for Transport (No 2) (1991), the House of Lords accepted that where Community law was clear, it must prevail over domestic law subsequent or previous, although it did not deal with the (still hypothetical) instance in which Parliament in a statute expressly instructed the courts to apply domestic law in preference to EU law. It reaffirmed this position in Secretary of State for Employment ex p EOC (1994). Theoretically, Parliament could repeal s 2(4) of the European Communities Act 1972, which gives primacy to Community law; in practice, it would almost certainly refrain from doing so, at least whilst the UK remains part of the EU.
This paragraph considers the impact of membership of the EU on parliamentary supremacy and thus, by implication, the effect on the British constitution.
It may be concluded that despite some diminution in the constitutional force of parliamentary sovereignty, it still is the dominant feature of the constitution, and therefore to an extent undermines the doctrine of the rule of law and of the separation of powers, although it is submitted that it is far from rendering them irrelevant. The HRA and the CRA have strengthened both of these doctrines to a significant degree, but of course both remain subject to the doctrine of parliamentary sovereignty.
This paragraph provides a final conclusion to the question, mentioning each of the key concepts raised in it, to provide a final answer to the propositions.
This answer has been taken from the latest edition of Constitutional & Administrative Law within the Routledge-Cavendish Questions & Answers Series.
- Students could note that the HRA may paradoxically be said to undermine the rule of law by adding further uncertainty to the law. The Act requires all legislation to be read and given effect in such a way as to be compatible with the Convention rights “So far as it is possible to do so”. Potentially, therefore, all legislation that touches on ECHR issues is now open to re-interpretation; a considerable period of uncertainty will thus ensue. The case of A (2001) is a good example: the statutory provision in question, s 41 of the Youth Justice and Criminal Evidence Act 1999 was given a radically different meaning from that which appears on its face; it is difficult to know in advance which other statutory provisions might be thus judicially re-shaped, thus rendering their meaning uncertain until so determined.
- Further support for this argument could be given, such as this statement from Sir Robert Megarry VC in Manuel v Attorney General (1983): “Once an instrument is recognised as being an Act of Parliament, no English court can refuse to obey it or question its validity.”