Entick v Carrington (1765), in which agents of the King, acting under a warrant issued by the Executive, the Secretary of the State, broke into the home 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 was a very distinguished and historical case establishing people’s rights. Also in Re M (1993) it was found that ministers of the Crown were obliged to obey court orders and risked a finding of contempt if they did not. These cases were a powerful reinforcement through the incorporation of the ECHR into the UK law through the HRA. The Convention rights are now binding on all pubic authorities, including courts, which act unlawful if they act incompatible with them under s.6(1). Under s.3 (1) of the HRA, legislation must be compatible with the Convention rights. There are some circumstances that legislation is not construed compatible with Convention rights. Certain rights permit interferences with them to certain circumstances such as Article 2 (right to life) Article 5 (personal liberty) Article 8 (privacy) Article 9 (freedom of religion). It was found in A v Secretary of State (2004) that one of the key grounds for finding the Convention right incompatible with the HRA 1998, that they allowed for detention the terrorists in a Belmarsh prison without a trial; unlawfully discrimination between nationals and non-nationals.
3. THE DOCTRINE OF SEPARATION OF POWERS
The Doctrine of Separation of Powers is of some importance to the UK constitution. It denotes the premise that there are three main organs of government, the Legislative, Executive and the Judiciary. There should be a system of checks and balances between each branch to keep each in check. An easy violation in the separation of powers is the judges are allowed to declare and develop common law. This commonly means creating it. Shaw v DPP (1962), in the House of Lords distinguished that the common law included a doctrine of ‘conspiracy to corrupt public morals’, although no precedents were cited demonstrating that it ever existed as a variant. of the power exercised by Star Chamber judges to punish offences against conventional morality. Fenwich, H. and Phillipson, G. (2009-2010).Constitutional and Administrative Law: London and New York: Routledge-Cavendish(pp20-21).
In McGonnell v UK (2000), an official with mixed functions similar to the Lord Chancellor’s, was fond to have violated Article 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. This spelled the end of the Lord Chancellor’s day as a judge, as confirmed in the Constitutional Reform Act 2005.
A more systematic reorganization of the UK constitution, in line with the separation of power principles are brought about by the Constitutional Reform Act 2005. The CRA provides that the Lord Chancellor ceases to the head of the judiciary; that is held by the most senior judge-the Chief Justice. It provides for a new Supreme Court where the House of Lords were simply a committee of upper legislative chamber; this will end the violation of the separation of powers and ends the Lord Chancellor’s role in the judicial and legislative arms of government. The UK appears to have an overlapping with the Legislative and the Executive whereas in the United States the President and his Cabinet cannot be members of Congress and the President may veto legislation but may not dissolve Congress. Parliament will refuse to hold an Act of Parliament ‘invalid” although demonstrated in Pickin v British Railways Board (1974) they did show themselves willing to ignore ‘a word’ used in the Act of Parliament.
4. THE DOCTRINE OF PARLIAMENTARY SOVERIGNTY AND ECHR
There is some reluctance of the Judiciary to depart from the will of Parliament. It flows from the Doctrine of Parliamentary Sovereignty. Parliament can legislate on any matter and therefore can pass laws severly curtailing civil liberties without facing the possibility that such legislation might be curtailed unconstitutional. Parliament can pull out of the ECHR at any time, but is doubted that they would ever do that.
Parliament cannot bind any future Parliaments or be binded by any previous Parliaments. Any judiciary cannot question the validity of any legislation of Parliament. It may be disputed that Parliamentary Sovereignty may have been weakened by its membership to the EU. In Factortame v Secretary of State for Transport (No.2) (191), the House of Lords distinguished that where Community law was clear, it must prevail over domestic law. Theoretically, Parliament can repeal s.2(4) of the European Communities Act 1972, which gives primacy to Community law, but in practice it is likely they would not do so for political reasons.
- CONCLUSION
The HRA and the CRA have strengthed both of these doctrines to a significant degree but both remain subject to the Doctrine of Parliament Sovereignty as being supreme rule of the UK Constitution and probably always will.
References:
Human Rights Act 1998
Constitutional Reform Act 2006
Fenwich, H. and Phillipson, G. (2009-2010).Constitutional and Administrative Law: London and New York:Routledge-Cavendish
The Law of the Constitution, 1971
Entick v Carrington (1765)
Re: M (1993)
s. 6.(1) HRA 1998
s. 3 (1) HRA 1998
A v Secretary of State (2004)
Shaw v DPP (1962)
Fenwich, H. and Phillipson, G. (2009-2010).Constitutional and Administrative Law: London and New York: Routledge-Cavendish (pp20-21).
McGonnell v UK (2000)
Article 6 of the ECHR
Constitutional Reform Act 2005
Constitutional Reform Act 2005
Pickin v British Railroads (1974)
Doctrine of Parliamentary Sovereignty
ECHR
Factortame v Secretary of State for Transport (No.2) (191)
Constitutional Reform Act 2006
Fenwich, H. and Phillipson, G. (2009-2010).Constitutional and Administrative Law: London and New York:Routledge-Cavendish
The Law of the Constitution, 1971
Entick v Carrington (1765)
A v Secretary of State (2004)
Fenwich, H. and Phillipson, G. (2009-2010).Constitutional and Administrative Law: London and New York: Routledge-Cavendish (pp20-21).
Constitutional Reform Act 2005
Constitutional Reform Act 2005
Pickin v British Railroads (1974)
Doctrine of Parliamentary Sovereignty
Factortame v Secretary of State for Transport (No.2) (191)