How far are concepts of the separation of powers and the Rule of law, demonstrated or challenged by recent decisions of the courts since 1990?

The Rule of Law and separation of powers are principles that underlie the British constitution. The British constitution is concerned with the powers and the role of the institution and the state, and with the relationship between citizen and the state. This essay will reflect how far the concepts of the separation of powers and the rule of law is demonstrated or challenged by recent decisions of the courts since 1990.

The Rule of Law is a subjective theory and one that holds many personal values of interpretation. It is based upon philosophical and political theories. The Rule of Law can be seen as protecting individuals’ rights to ensure government powers. Rule of Law is concerned with imposing minimum standards to conduct of behaviours. Where laws do not rule, there is no constitution. This concept is challenging as there are many interpretations by different people, and this makes the understanding of the doctrine difficult to underpin.

The concept of separation of powers is an important doctrine which generates allocation of powers. This concept together with Rule of Law and sovereignty parliamentary is embedded throughout the British constitution. Separation of powers has contributed an important role in the constitution as it has distinguished which powers can be allocated and separated amongst the three essential organs that exist in any society. Montesquieu is credited with formulating the doctrine of separation of powers in the 18th century. These elements are the executive, the legislative and the judiciary. The executive is the branch which formulates policy, enabling to administer the law. The legislature is the law making arm of the state and the judiciary apply the law.

The contemporary doctrine of the separation of powers has established that there should be no isolation amongst the three organs. As if there was then this can bring about unworkable arrangements because each organ is dependant upon another, particularly under a constitution that is dominated by the sovereignty of Parliament. These responses form contradiction to the doctrine as it has been argued that there are restraints which are applied between the different institutions of governments. Checks and balances are in place to protect the abuse to which separation of powers is concerned. This has been demonstrated in recent decisions of the courts. In Easterbrook v United Kingdom (2003) it was necessary for sentencing exercises to be carried out by impartial tribunal. The courts had not fixed the appellant’s hearing and it was under this circumstances that the separation of powers did not satisfy; as members of the executive was guided by judicial opinion. This supports Montesquieu theory that when the legislative and the executive unite in the same body there can be no liberty. The theoretical basis for the doctrine has had growing influence on Article 6 (1) of the European Conventions Human Rights which has reinforced both separation of powers and the Rule of Law.

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The Human Rights Act 1998 has made a significant impact on the United Kingdom constitution. The European Convention on Human Rights integrated the Human Rights Act 1998. The effect of this was to protect and enhance the individual rights against the courts in United Kingdom. Therefore the domestic courts are required to apply all legislation in a way that was eligible to the Conventions. However there was breach of the separation of powers which challenged the concept of the judicature. The most recent case of A and Others v Home Secretary raises the controversial point of the judges making law. The House of Lords held that the legislation by government was disproportionate and incompatible with the Human Rights Act 1998. The real issue is whether by judges making law either by the doctrine of precedent or through the interpretation of statutes the judiciary and the legislature overlapping in the issue of separation of powers.

The concept of separation of powers has been challenged by recent decisions of the courts. The Lord Chancellor has executive, legislative and judicature roles which conflicts the concept of the separation of powers in the British constitution. The classic doctrine of separation of powers reinforces that there should be no single person exercising powers throughout the three organs in society. In McGonnell v United Kingdom (2000) the impact of the Human Rights Act 1998, Article 6 generated concerns whether the Bailiff was impartial to dissent the case. However the courts can agree with the Government that the conventions and Article 6 need not apply any theoretical constitutional concepts. This particular doctrine of constitutional law challenged the impartiality of the Bailiff.

This is in process of reform as in March 2005 the Constitutional Reform Act 2005 was given Royal Assent. This bought about stronger separation of powers to the system. However checks and balances are present to prevent concentration of power amongst the bodies of the government.

Constitutions are necessary to control power in the state. These fundamental principles that underline the British constitution have helped shape they way government exercises power of the state. The rule of law may be interpreted as a political and philosophical theory that lays down fundamental requirements for law. The philosophical debate is concerned with the natural theory. This concept insists that there is need of a system of secular power; in the west sovereignty of law became linked with the Christian faith. However the political arguments contrast with the concept of natural law. For Marxists the idea of rule of law existed in society to inhibit the false idealisation of capitalism.

The concept of the Rule of Law has been challenged by recent decisions in the court. The laws must be sufficiently clear is a characteristics for any legal system to posses. AV Dicey has offered political description to the rule of law. Dicey has established that no one shall be punished except those which represent a clear breach of law. Laws should be open and accessible, clear and certain. However Dicey’s principles have not been demonstrated in Britain. The Rules of Law must be sufficiently clear which is a formal requirement and adds importance to the qualities of the law. This concept has been demonstrated by relatively rare cases in which it conflicts with the Convention right which was found to be unlawful on this basis. It was challenged in Hashman v Harrup v UK (2000) a right to freedom of expression under Article 10, but the relevant domestic law was vague and unclear to agree with the Conventions of Article 10. It should be noted that the requirement of the Convention that law must be clear only applies to laws which corresponds with Convention rights.

Laws which are arbitrary are incapable of justifications was challenged in the case of R v R (1991) because until 1990 rape within marriage was not a criminal offence. However because Human Rights Act 1998 was implemented it had challenged the European Convention on Human Rights. This infringed Article 7 of the Convention on Human Rights.

The justification of the use of judicial review is given by the Rule of Law. Rule of law is concerned with imposing minimum standards to conduct of behaviours whereas judicial review is concerned with the standards being reasonable or fair and intra vires. When a decision or action taken is ultra vires judicial review aims to shame the decision or action as irrelevant and rule out the decision or action made. Judges tend to distinguish between substance ultra vires and procedural ultra vires.

Judicial review aims to maintain the balance between judiciary and the state by separation of powers. The judiciary is separated and remains independent aiming to resolve disputes between the state and the individual. If the judiciary was not independent decisions made could be bias and judges would fear of ruling against and carrying out their duties independently. There is a distinctive importance on the separation of powers towards to judicial review and the executive which makes judicial review so effective.

The judgements of the cases that have illustrated whether these underlying concepts of the constitution have been demonstrated and challenged question the society we live in. We live in a society that is democratic, but some may submit that the democratic society we live in is hybrid. This can be true to some extent as that Marxists argue that we live in a society of false idealisation of capitalism. However most of the cases that concerned in breach of the rule of law and separation of powers focus our attention that United Kingdom does take the constitution seriously. Even though the constitution is not a written document; in effect making it none binding. The constitution is seen as a convention which the United Kingdom has adopted because of the understandings. The recent reform of Constitutional Reform Act 2005 is an explicit example of how important these concepts are in the United Kingdom. Most important of all, the cases that involved the demonstration and challenges of these fundamental concepts had reached the High Courts. This has reinforced the value and importance of them.

The concepts of the separation of powers and the Rule of Law have demonstrated the underlying principle of the British constitution. Even though the United Kingdom does not have a written constitution the major principles of the Rule of Law and separation of powers have challenged recent decisions in the courts. The principles have demonstrated that these unique philosophical and social concepts rely upon each other. The rule of law must succeed equality before the law regardless of individual’s status. This argument supports the political theory stated by Dicey. Correspondence to this, the separation of powers credited by the political philosopher Montesquieu challenges that there is no liberty without separation of powers. Therefore when judges decide cases they are subordinate to the executive who enforce the law. This practically demonstrates that in order for decisions to be made in court they have to correspond to the European Conventions on Human Rights.

Bibliography

Books

Constitutional & Administrative Law, Hilaire Barnett, Fifth Edition, Cavendish Publishing
Constitutional & Administrative Law, Alex Carroll, Pitman Publishing
Blackstone Statues, Public Law and Human Rights 2004-2005

Websites

www.westlaw.com

Electronic Journal Article

Murphy, C (2005) Legislation by notification. New Law Journal. 21 October 05. Full text [lexis nexis] [28th October 2005]

Primary Sources

CASES

A and Others v Home Secretary [2004] Q.B 335
Easterbrook v United Kingdom [2003] All ER
McGonnell v United Kingdom [2003] 30 EHRR 289
Hashman v Harrup v UK [2000] 30 EHHRR 241
R v R [1991] 2 All ER 257

Secondary Sources

STATUTES

Constitutional Reform Act 2005
Human Rights Act 1998

[2003] All ER the courts had ruled that Article 6 of the European Convention on Human Rights had covered proceedings on criminal cases

[2004] Q.B 335

(2003) 30 EHRR 289 recalled uncertainties regarding to separation of powers

(2000) 30 EHHRR 241 The applicants held that their behaviour was a right to freedom of expression

[1991] 2 All ER 257

Was given Royal Assent which bought about stronger separation of powers to the system.

How far are concepts of the separation of powers and the Rule of law, demonstrated or challenged by recent decisions of the courts since 1990?

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