The Lord Chancellors department's role is said to secure the Administration of Justice in England and Wales, but how can this be so if the Lord Chancellor is in effect a tri-partite politician.

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The Lord Chancellors department's role is said to secure the Administration of Justice in England and Wales, but how can this be so if the Lord Chancellor is in effect a tri-partite politician. Is he influenced by Government policy when he sits as judge in the appellate courts?

It can be seen that the Human Rights Act 1998 has modified our constitution, earlier examples of this was the passing of the European Communities Act 1972 which effectively gave up our sovereignty, however the courts have tried to maintain our constitution and sovereignty by interpreting acts of Parliament1.

The court system did continue to do this quite effectively until the late 1980's when along came Factortame litigation2 and more so with Human Rights now a part of English law.

Before 1972, if an Act of Parliament had a clause in it saying that it can not be repealed, yet the same power that made it, Parliament can repeal it3. The concept in Cheney v Conn4 has now changed together with the change in our constitution, which has brought in European Law and so created a hierarchy of law, including Human Rights.

The European Communities Act 1972 effectively disposed of sovereignty, stating that "any enactment passed or to be passed...shall be construed and have effect subject to the foregoing provisions of this section"...(i.e. EC law)5. This effectively bound any future Parliaments for as long as we where part of Europe. The longer we are part of Europe effectively the harder it is to withdraw from it. The same effect has happened with the introduction of the Human Rights Act 1998.

So how far have our laws become entrenched? Some would argue that some of our laws have become entrenched by consequential actions of previous acts of Parliaments, examples being European Communities Act 1972, Human Rights Act 1998. We can see due to our laws being entrenched, this will, in my opinion change our constitution and human rights.

The doctrine of separation of powers is made up primarily of three state powers, these being the legislative, executive and judicial powers. Theories about the separation of powers are concerned with controlling state power, as it has been recognised if powers are concentrated in the hands of one person there would be tyranny. The idea of separation of powers should be exercised by different bodies then they can balance and check each others powers. Lord Irvine stating the success of the separation of powers requires continued public confidence in the political impartiality of the judiciary6. So perhaps he will accept the forthcoming changes which I discuss, emphasised more in ex parte Anderson7. cf. Dr. Bonham's case8.

We have never had had strict system of the doctrine and never had clearly separate systems of government. We have an overlap of function and the regulation of procedures in court. The character of the doctrine is to be changed by the Human Rights Act 1998.
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Dicey's formula9 has come under much scrutiny with recent developments. The rule of law is not a law per se and can not be directly enforced by the courts. It is a concept, a guiding principle. Dicey stated:

'Laws should be regular, ascertainable and certain, punishment should follow the due process, officials must justify their actions in law, no definition without legal authority and condemnation of wide discretionary power'.

These principles seem to defy the law as it stands and it seems certain that Dicey's formula is more likely to be followed with the introduction ...

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