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Separation of Power

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Under the doctrine of parliamentary sovereignty, in theory at least, Parliament has the ability to legislate on any matter and no body including the judiciary can challenge such an Act. However, this traditional construction of legislative supremacy has been questioned due to the apparent supremacy of EU law in our national system as well as the Human Rights Act 1998. The aim of this paper is to assess whether there are limits to Parliament’s power to legislate and if so, whether it is problematic that unelected judges enforce these limitations.

The sovereignty of Parliament is one of the cornerstones of the unwritten British Constitution. The right has been elucidated by AV Dicey as the ability of Parliament to ‘make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’. This traditional notion of parliamentary sovereignty can be broken down into three component parts: Parliament has a supreme power to enact legislation in the UK. Second, no institution is able to question the validity of an Act of Parliament. Thirdly, Parliament cannot bind its successors. Traditionally, there was considered to be no limit on Parliament’s ability to legislate. This was so even where legislation was retrospective in effect or where it directly challenged international law. Furthermore under to ‘enrobed bill’ rule no court of justice was permitted to enquire as to the validity of an Act of Parliament. However, the traditional approach is being reconsidered in light of the UK’s relationship with the EU and the enactment of the Human Rights Act 1998. These two particular threats to legislative supremacy now fall to be considered.

The European Communities Act 1972

The first area where there is an alleged threat to the legislative supremacy of Parliament is in relation to the relationship between EU law and domestic legislation. When the UK joined the EU in 1972 it was already established that European law should have supreme authority in all Member States. However, commentators upheld the traditional view that joining the EU would not be a threat to parliamentary sovereignty. Lord Diplock asserted that where a conflict existed between EU and domestic law ‘the courts of the United Kingdom would be bound to give effect to the Act…notwithstanding any conflict.’ Lord Denning further added that where domestic legislation was passed, the ‘courts will have to abide by the Statute without regard to the Treaty at all’. However, Lord Denning’s approach softened in McCarthys Ltd v Smith when his Lordship indicated that where a conflict existed, the courts had a ‘bounden duty to give priority to Community law’. This important constitutional question would receive an important answer a couple of decades later.


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By virtue of ss 2(1) and 2(4) of the European Communities Act 1972, Acts of Parliament have effect subject to directly enforceable EU law. The operation of the 1972 Act was the subject of intense debate in the seminal case of Factortame (No 2). This case involved consideration of whether the Merchant Shipping Act 1988, which frustrated the aim of the EU by introducing quotas for fishing vessels, could be upheld. Under the doctrine of implied repeal, a later statute brings about the repeal of an earlier statute, to the extent that both are inconsistent. The case was dealt within the High Court, the Court of Appeal and the House of Lords, with the High Court and the Court of Appeal deciding that the courts could apply relief by suspending the operation of the 1988 Act. This was a radical step in that it involved the judiciary setting aside an Act of Parliament. The House of Lords rejected such an approach and given that the issue covered EU law, the House of Lords made a preliminary reference to the European Court of Justice on whether domestic law could be set aside where it conflicted with EU law. The ECJ was emphatic in their response declaring that ‘Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule.’ The House of Lords then reconsidered the case and decided to ‘disapply’ the domestic legislation in favour of EU law. The decision was perceived as ground-breaking and a blatant withering of parliamentary sovereignty. Parliament apparently could not legislate in matters that were contrary to EU law. Furthermore, the courts were empowered to set aside or ‘disapply’ an Act of Parliament. This was an attack on the dual notions of parliamentary sovereignty as elucidated by Dicey.

There are two schools of thought on what the impact of Factortame (No 2) was on the hallowed doctrine of parliamentary sovereignty. Wade opines that the outcomes was a constitutional revolution. The author contends that the courts by creating a new notion of disapplying legislation that ’it was natural to suppose that something drastic had happened to the traditional doctrine of parliamentary sovereignty’. The author submits that by providing for the subordination of domestic law a revolution had occurred in that the Parliament of 1972 had successfully bound the Parliament of 1988 – something which was previously though impossible under our constitution. The second school of thought asserts that the judges, in disapplying the 1988 Act, were engaging in a constitutional evolution only. Allan asserts that what was happening was a ‘far from dramatic, let alone unauthorised, change’ and that ‘the House of Lords merely determined what the existing constitutional order required in novel circumstances.’ This constitutional order being that Parliament could at any time repeal the ECA 1972. Therefore, the Factortame (No 2) case was properly perceived as introducing a rule of construction only. Sir John Law also argues that what happened in the case was merely a concession of power to Europe, but not a concession of sovereignty. This evolutionary view has been recently cemented by Section 18 of the European Union Act 2011 which declared that the operation of EU law was through an Act of Parliament. Explanatory notes to the 2011 Act suggested that Section 18 had been included to ‘counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU treaties’. This confirms that an evolution, not a revolution has taken place.


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Constitutional Statutes

In the later case of Thoburn v Sunderland City Council the court added a further gloss to the debate. In this case, Laws LJ held that constitutional statutes, defined as legislation which supervises the relationship between the citizen and the state in some general way, cannot be subject to implied repeal whereas other statutes can. This applied to a range of constitutional statutes, not just ECA 1972. Constitutional statutes can therefore only be repealed expressly which adds weight to the argument that such statutes are entrenched and limit legislative supremacy.

The Human Rights Act 1998

The next issue is to explore whether human rights legislation has impacted on Parliament’s ability to legislate. The Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law. Section 3(1) of the Act declares that ‘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.’ Section 3(2)(b) indicates that any interpretation by the courts ‘does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.’ Such legislation, if it cannot be interpreted in a way that permits compliance with the ECHR can be declared incompatible by the courts under section 4(2) HRA 1998. Section 4(6)(a) provides that any declaration of incompatibility does not affect the validity or continued operation of any provision. Therefore, and crucially, a court has no authority to disapply any legislation as was done in Factortame (No 2). To put this in Diceyan terms, Parliament is permitted to legislate on any matter that it wants, even where to do so would result in a violation of the rights enshrined in the ECHR. This position was emphasised by Lord Irvine in his assessment of the Human Rights Act, two years after it had been enacted. It should also be noted that just as Parliament has the ability to repeal the ECA 1972, it also has the ability to repeal the HRA 1998. In that sense, Parliamentary sovereignty is unaffected.

However, the discussion in Thoburn should be noted. If we accept, as the court did in Thoburn, that the Human Rights Act is a constitutional statute then it can only be repealed by express words. Construed this way, the legislation can be interpreted as a fetter on the supremacy of Parliament. However, Young doubts whether Thoburn can sit easily with the interpretative duty of the courts as per section 3(1) of the 1998 Act. She argues that a later Act that is inconsistent with the HRA 1998 does not even trigger considerations of implied repeal as such an Act would be inconsistent with the interpretative duty under section 3(1).

Furthermore, , it appears that in relation to human rights the constraints on Parliament’s
power is political, not legal in that the government will not want to be seen to have
enacted legislation which threatens fundamental rights and freedoms.


The Judiciary

Is it problematic that the limitations to sovereignty, if we accept that they exist, are enforced by unelected judges. One argument is that the doctrine of parliamentary sovereignty itself is a creature of judge-made law. Lord Hope expanded on this, writing extra-judicially, when he posited that ‘[A] law does not simply exist. It has to come from somewhere. It is either enacted law, for which Parliament is the source, or it is a product of the common law by the judges. There is, as Lord Bingham says, no statute to which the principle [of parliamentary sovereignty] can be ascribed.’ As the judiciary have created the doctrine, they should be entitled to enforce it. Larkin agrees with this conclusion stating that ‘Given that Parliament derives its powers from law, we have a normative reason to erase the concept of sovereignty from our constitutional landscape ... [This perspective] demands that Parliament may only exercise power in accordance with the principles – whatever they may be – that justify that power’. However, this argument has not subject to trenchant criticism. Eakings argues that any claim that legislative supremacy is a judge-made creation is ‘historically false’ and ‘jurisprudentially absurd’. He postulates that sovereignty has been created because of acceptance by all three branches of government and while judges accept the rule, they cannot be said to have created it and lawfully change it.


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The judiciary have declared that there may be certain instances where they will question the validity of an Act of Parliament. Previous cases had indicated this was not possible. The case of Jackson revealed some interesting dicta from the Law Lords on this issue. Lord Bingham endorsed the traditional review by indicating that Parliament could ‘make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority’. Lord Steyn was at the other end of the spectrum, trumpeting that the ‘European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order’ and that the courts could in exceptional circumstances circumvent the doctrine – for example, where a statute attempted to abolish judicial review. Lord Hope urged that ‘[s]tep by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified’. While the ability to strike down legislation in exceptional circumstances is largely hypothetical, it is also welcome. For as Lord Hope declared in Jackson the principle of parliamentary sovereignty is based on the assumption that Parliament represents the people whom it exists to serve’.

Diceyan legislative supremacy in its traditional form is questionable. However, the ECA 1972 has caused an evolution, not a revolution, of the principle in that the process of ‘dispplying’ a statute is done with the will of Parliament and the ECA 1972 can be repealed at any time. Furthermore, the HRA 1998 has limited impact on the principle in that the courts are restricted to issuing declarations of incompatibility. While judges hypothetically challenge an Act in exceptional circumstances, after Jackson, this in unlikely, although certainly desirable if the courts attempted to abolish judicial review or fundamental freedoms. Are there limits to the ability of Parliament to legislate? The answer is that there are now limits, but they have not represented a wholesale attack on the principle of sovereignty. Is it problematic that these limits are enforced by unelected judges? If we subscribe to the school of thought that parliamentary sovereignty is a creation of common law, this is not problematic. Furthermore, judges can act as a check and balance on legislative excess if Parliament decided to legislate contrary to democratic principles such as abolishing judicial review.


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List of Cases and Statutes

UK Cases

Burmah Oil v Lord Advocate [1965] AC 75
Cheney v Conn [1968] 1 All ER 779
Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & Fin 710
Felixstowe Dock and Railway Co v British Docks Board [1976] 2 CMLR 655
McCarthys Ltd v Smith [1979] 3 All ER 325
Pickin v British Board of Rail [1974] AC 765
R (Jackson) v Attorney General [2005] UKHL 56
R v Secretary of State for Transport, ex p Factortame Ltd (No 1) [1990] 2 AC 85
Regina v Secretary of State for Transport, ex parte Factortame Ltd. and Others (No. 2) [1991] 1 AC 603
R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115

EU Cases

Case 6/64 Costa v ENEL [1964] ECR 585
Case C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd [1990] ECR I-2433

Statutes

European Communities Act 1972, c. 68
European Union Act 2011, c. 12
Merchant Shipping Act 1988, c. 12






























Bibliography


Textbooks

Young A, Parliamentary Sovereignty and the Human Rights Act (Hart Publishing 2009)


Journal Articles

Ahmed F and Perry A, ‘The Quasi-Entrenchment of Constitutional Statutes’ (2014) 73(3) Cambridge Law Journal 514
Allan TRS, ‘Parliamentary Sovereignty: Law, Politics and Revolution’ (1997) 113 Law Quarterly Review 443
Eakins R, ‘Acts of Parliament and the Parliament Acts’ (2007) 123(1) Law Quarterly Review 91
Larkin S, ‘Debunking the Idea of Parliamentary Sovereignty: the Controlling Factor of Legality in the British Constitution’ (2008) 28(4) Oxford Journal of Legal Studies 709
Lord Irvine of Lairg, ‘The Impact of the Human Rights Act: Parliament, the Courts and the Executive’ [2003] Public Law 308
Laws J, ‘Law and Democracy’ [1995] Public Law 72,
Lord Diplock, ‘The Common Market and the Common Law’ [1972] Law Teacher 3
Wade HWR, ‘Sovereignty: Revolution or Evolution?’ (1996) 112(8) Law Quarterly Review 568

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Article published 25/05/2017

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