This essay will discuss the impacts on the
judicial reforms that have taken place in the United Kingdom in the past few
years. First, I will explain the principles of separation of power and
parliamentary sovereignty and how these principles are applied in the United
Kingdom. Then I will analyse the impacts to show that the courts are not
similar to constitutional courts elsewhere such as in the United States, and
that parliamentary sovereignty remains supreme today.  

 

Separation of power, is a bedrock for modern
constitutionalism. It is the principle that governs the major institutions of
states, usually in the form the executive, the judiciary and the legislature.
There are two versions of separation of power: a pure separation of power is
that the three branches of governance should be completely separate and
distinct, that no individual should be a member of more than one of them
another.1
The partial separation of power emphasises on the theory of checks and balances
through the overlapping of different branches. Montesquieu stated that
separation of power is a guard against tyranny, even going so far to state that
“everything would come to an end if the legislative, executive and judicial
powers of government were to be exercised by the same person or authority”2.
However, the principle has often been dismissed by English constitutional
writers, as Geoffrey Marshall puts in, it is “little more than a jumbled
portmanteau of arguments for policies which ought to be supported or rejected
on other grounds”3.
The most obvious example of this was the existence of the Lord Chancellor, of which
was abolished through the enactment of the Constitutional Reform Act 2005.

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The lack of separation of power can be
attributed to the emphasis placed on parliamentary sovereignty. The importance
placed upon this principle can be phrased by Dicey. “The principle of
Parliamentary sovereignty means neither more nor less than this, namely, that
Parliament …. has, under the English constitution, the right to make or unmake
any law whatsoever; and further, that no person or body is recognised by the
law of England as having a right to override or set aside the legislation of
Parliament”.4
Under this principle, Parliament could limit powers delegated to the other
branches. While it is clear parliamentary sovereignty is considered as the
“ultimate political fact”5,
the principle of rule of law was deemed the next important6.
The principle of the rule of law is essentially the recognition that power in a
constitutional democracy must not be absolute7.
UK courts, unlike in most countries, do not have the power to strike down
legislation passed by Parliament as they have always accepted Dicey’s hierarchy
of constitutional principle. The function of the courts is simple to implement
and carry out the intention of parliament, and per Elias P, “They are the
handmaidens of Parliament, expounding, explaining and giving effect to the
statutes that come before them.”8

 

However, we can see the courts increasingly
questioning Diceyan view of Parliamentary sovereignty. After Marbury v Madison9,
the UK courts also adopted the principle of judicial review. When Parliament
tried to include a clause precluding judicial review in the Foreign
Compensation Act 1950, the courts interpreted the clause narrowly and
specifically to preserve existing rule of law and judicial review.10
The enactment of the European Communities Act (ECA) 197211
and Human Rights Act (HRA) 199812
has delegated more power to the courts. In Factortame13,
the courts ruled that EU legislation is supreme over domestic laws, as per
section 2(1) of the ECA 1972.  In HRA
1998 s(3), it states 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 right”14.
In Ghaidan v Godin-Mendoza15,
even if the words of the statute are seen as unambiguous, the courts interpret
certain words in the way to make the statute convention compliant. The words
‘as his or her wife of husband’ were to be interpreted as to mean ‘his or her
wife or husband’. This can be seen as the
courts performing a legislative function, they reworded legislation to have a
different effect than the original intention set out by Parliament when it
passed the act. As Lord Millet said in his dissenting argument,
section 3 interpretations do not require the courts to decide “questions of
social policy …… which ought properly to be left to Parliament.”16

 

There is also the declaration of
incompatibility made available under section (4) of the HRA 1998. Although the
declaration has no legal effect, with the law in question remains as good law,
political consequences might have derived from it. As “parliament does not
legislate in a vacuum”17,
political considerations also serve as limitation to parliamentary sovereignty.
The effect is seen in Belmarsh18
case, the courts declared a clause in the Anti-Terrorism Act 2001 to be
incompatible with convention laws. In light of the declaration and severe
public backlash, the parliament repealed the legislation.

 

In the Constitutional Reform Act 2005, there
was a significant constitutional change to the court system of the UK since the
19th century19.
With the CRA 2005, separation of power was increased in 3 ways.  It abolished the post of the Lord Chancellor,
a Judicial Appointments Commission (JAC) was created, and the Supreme Court was
established as the final court of appeal instead of the House of Lords. These
reforms are seen as taking a step forward towards a much-needed judicial
independence and increasingly adhering to the principle of separation of power
by removing the fusion of powers between the three branches of power. In recent
years, the UK has focused more on the courts’ autonomy not only in upholding
the rule of law, but also in protecting human rights and in “preserving the judge’s
impartiality whatever the case in which he or she has to deal and whatever the
circumstances.”20

 

However, it is important to remember that
any powers the courts might have, would be of the will of the parliament. In Factortame, Lord Bridge said that
“……whatever limitation of its sovereignty Parliament accepted when it enacted
the European Communities Act 1972 was entirely voluntary” 21.
Essentially, Parliament can do anything but bind its successors. This is
supported in the case of Blackburn v Attorney
General22,
where the courts rejected that it would be an illegal surrender of sovereignty
to join the European Community. As per Lord Salman in Blackburn, Parliament
“can enact, amend and repeal any legislation it pleases.”23
The idea that Parliament Sovereignty can be refrained by choice, in sense
successfully binding its successors, dubbed the “revolution view” is led by Sir
William Wade. In analysing the decision for Factortame,
he argues that Parliament remained sovereign in the sense that it retained the
power to repeal any act, but as long as Parliament remains in the European
Union, it remains tied to the terms of the statutes in ECA 197224.
Professor Allan and Sir John Laws, hold differing opinions. They argue that
these changes in shifting parliamentary sovereignty is not “revolutionary”, as
it is similar to other statutes and acts enacted25.
Hence, the courts gaining more power can be either as “revolutionary” in which
parliament has allowed itself to self-bind, or that it was merely
“evolutionary”, understanding that parliament enact statues all the time that
limits its powers.

 

In light of all these, there are two
questions to answer: (1) Has the courts obtained a role similar to constitution
courts in other nations and (2) If so, is it no longer subordinate to
Parliament. For the first question, my answer would be no. The primary power of
a constitutional court is the constitutional review of laws. While the UK
courts enjoy some form of judicial review, constitutional courts wield stronger
form of judicial review that allows them to repeal laws26.
The only option for UK courts is to apply the principle of statutory
interpretation to make them consistent with superior law27,
or release a declaration of incompatibility.28
While UK courts have obtained increasing, UK courts still lack the primary
power of repealing laws for it to be similar to other constitutional courts.

 

For the second question, personally, I think
it would be inaccurate to say Parliament Sovereignty has not been affected.
However, Parliamentary Sovereignty is still very much intact. If Parliament
still decides to pass legislations that infringes on certain rights, it will
still remain as “good law”. In Hirst v UK29,
even though the blanket ban of prisoner voting was in breach of the ECHR,
Parliament refused to change it, the law still remained. The ruling of R (on the application of HS2 Action
Alliance) v Secretary of State for Transport30.
It was held that when a “constitutional statute” of national law conflicted
with an area of EU law, the national law would take precedence. Constitutional
statute in this situation meant the Bill of Rights 1689. Other example would be
in the case of R v Secretary of State for
the Home Department ex parte Simms31.
Lord Hoffman stated that “Parliament must squarely confront what it is doing
and accept the political cost”32
as being the only limitation placed upon parliament.

 

  In the future, there might be more change to
come, we can see from the cases explained above and from Jackson33,
that there are limits to sovereignty where constitutional fundamentals were at
risk34.
However, parliamentary sovereignty still remains supreme today, as courts still
show that they lack sufficient authority to truly subvert parliamentary
sovereignty. The existing relationship between the legislative branch and the
judicial branch requires a careful compromise that “depends upon a sense of
restraint on the part of both the judges and of Parliament.”35

 

1
M.J.C. Vile: “Constitutionalism
and the Separation of Power” (1967) Chapter I

2
Baron de Montesquieu: “The Spirit of the Laws” (1748) p 397

3
Geoffrey Marshall: “Constitutional Theory” (1971), p 124

4
A.V.  Dicey: “The Law of the
Constitution” (1885) p 39-40

5
H.W.R Wade: “the Basis of Legal Sovereignty” 13 Camb. L. J. 172. 188 (1995)

6
A.V. Dicey: “Introduction to the Study of
The Law of the Constitution” (10th edn, Macmillan, Basingstoke, 1959)

7
 D. Oliver: “The Changing Constitution” (5th edn, Oxford University Press,
2004) p.5

8
Elias P: “The
rise of the Strasbourgeoise: judicial activism and the ECHR” (Annual Lord Renton London
Lecture, London 2009)

9
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)

10
Anisminic Ltd v Foreign Compensation
Commission 1969 2 A.C. 147

11
European Communities Act 1972

12
Human Rights Act 1998

13
R v Secretary of State for Transport Ex
parte Factortame Ltd (No. 2) 1991 1 AC 603

14
Human Rights Act 1998 Section 3

15
Ghaidan v Godin-Mendoza 2004 UKHL
30

16
Ghaidan (12) p 65

17
R v Secretary Of State for the Home
Department (ex parte Pierson) 1997 3 W.L.R. 492, p 573

18
A v Secretary of State for the Home
Department 2004 UKHL 56

19
Professor Le Sueur: “The Changing Constitution, 5th Edition” (2004)
p 323

20
Lord Hope of Craighead: “Judicial independence” 2002 S.L.T. 105

21
Factortame (13) p 659

22
Blackburn v Attorney General 1971 1
W.L.R 1037

23
Blackburn (22) p 1041

24
Sir William Wade: “Sovereignty – Revolution or Evolution?” (1966) 112 LQR 568

25
Sir John Laws: “Law and democracy” 1995 Public Law 72 p 89

26
Mark Tushnet: “Weak Courts, Strong Rights: Judicial
Review and Social Welfare Rights in Comparative Constitutional Law” (Princeton UP 2008)

27
Human Rights Act Section 3

28
Human Rights Act Section 4

29
Hirst v United Kingdom (74025/01)
(2006) 42 E.H.R.R. 41

30
R (on the application of HS2 Action
Alliance) v Secretary of State for Transport 2014 EWHC 2759

31
R v Secretary of State for the Home
Department ex parte Simms 2000 2 A.C. 115

32
Simms (26) p 131

33
R (on the application of Jackson) v
Attorney General 2006 1 A.C. 262

34
Jeffrey Jowell: “Parliamentary sovereignty under the New Constitutional
Hypothesis” (2006) Public Law 562

35 Professor Vernon Bogdanor: “Human Rights and the New British
Constitution” (Justice Tom Sargant memorial annual lecture 2009) 

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