The relationship between the separation of powersDocument Transcript
The Relationship Between The Separation of Powers, The Rule of Law AndParliamentary Sovereignty In The British Constitution.by Victor Amadigwe‘Separation of powers’ in simple terms means that the three main organs of the government,namely, the Executive, the Legislature and the Judiciary must be separated and independent fromone another. They should also act as checks and balances to one another. In the other hand, thedoctrine of ‘Rule of law’ is that all are equal before the law, i.e. no man is above the law.The ‘Parliamentary Sovereignty’ or otherwise known as the ‘Legislative Supremacy of parliamentmeans that Parliament has the power to make laws through the enactment of status. These lawsregulate the conducts of the citizens and laws made by the Parliament are interpreted and enforcedby the courts. Together, the separation of power, the rule of law and the parliamentary sovereigntyruns like a thread in the Constitution of the United Kingdom.There are several meanings of separation of power. Aristotle, (384-322 BC) in ‘The Politics’ said:"There are three elements in each constitution in respect of which every serious lawgiver must lookfor what is advantageous to it; if these are well arranged, the constitution is bound to correspond tothe differences between each of these elements. The three are, first, the deliberative, whichdiscusses everything of common importance; second, the officials; and third, the judicial element".The doctrine favoured by Aristotle would divide the power according to class interest, comprisingmonarchy, aristocracy and democracy. However, the most favoured doctrine of separation of poweris that proposed by Montesquiue (De L’Esprit de Lois, 1748), i.e. the government power beingdivided into three different kinds: (1) the legislative power, which enacts the law; (2) the executivepower, which makes policies; (3) the judicial power for settlement of disputes.It is very essential in every democracy that these three arms of the government must be separatedand acts independently. Without the separation of power, there could be real danger of abuse ofpower and injustice being perpetrated on the citizens. Although in the constitution of the UnitedKingdom, it could be said that the separation of power is not absolute. E.g. the appointment of theJudges are done by the Executive through the Lord Chancellor, who himself is appointed by thePrime Minister.
He is a member of the Executive and also sits as a speaker of the House of Lord and also as a Judge.In the other hand by convention, the ministers of the state who are the Executive members of thegovernment are also members of the legislature and therefore there is no complete separation ofpower. Further, the Prime Minister who appoints the Ministers is himself a member of thelegislature.In theory the parliament is supposed to control the executive, however in practice it is the opposite.This is attributed to the fact that the party in power has the majority in the parliament and thereforethe executive enjoys this majority whereby the ruling party uses the party whip to ensure that itsmembers votes in favour of any law or policy proposed by the executive.This is not to say that there are no checks and balances between the three arms of the government.For example, even though the ruling party commands majority in the parliament and appoints theexecutive, the ministers must answer to the parliament, i.e. they are accountable to the parliament.There is also the main opposition party, which on many occasions would criticize the governmentand also oppose the policies of the ministers.History has shown that even though the ruling party may use their whip against any of their partymembers that refused to back the policy of the ministers, there are many occasions where membersof the ruling party will support the opposition to defeat the policy of the minister.Select Committees, which comprise members of all the parties in the parliament, can also call uponany minister to explain himself or any aspect of his policies to the Committee at any time. This isoften done in public. The most recent example of this is the questioning of ministers and otherindividuals regarding the dossier produced by the government to support the war in Iraq, which theBritish Broadcasting Cooperation (BBC) reported to have been fabricated by the governmentpurporting it to be what the intelligence services have produced.The Judges although appointed by the executive, enjoys tenure of office once appointed andtherefore lessens interferences by the executive once appointed. They through the courts providechecks over the executive by means of judiciary review. The judges in the other hand enforce thelaws, which are proposed by the executive and enacted by the parliament. Which goes that they canonly enforce the laws enacted by the government. By enforcing these laws, they also ensure that therule of law applies to everyone and no man should be above the laws enacted by the parliament.The Rule of law is one of the fundamental doctrines of the Constitution of the United Kingdom.Different people give it different interpretations depending on their perspective. However no matter
the interpretation given to it, its essence is that of the supremacy of the law. Both the governmentand its citizens are expected to act in accordance with the law made by the parliament. Failure to doso will bring in the judiciary to enforce, although the supremacy of parliament may mean thatparliament may change the law thereby rendering the enforcement unenforceable.Dicey in Dicey’s Rule of Law: The Orthodox of the Legal Profession 1885 has a practical influence inthe rule of law. Dicey’s doctrine includes that the law is supreme and that no man can be punishedexcept by the breach of the law and that it is only the court of law that can enforce such law. Inpractice this is how the system works within the constitution of the United Kingdom.No one can be arrested except by the breach of the law enacted by the parliament. The arrestedperson remains a suspect or a defendant and is deemed to be innocent until proved guilty by thecourt of law. It is only the court of law that can impose a prison sentence on someone found guilty ofa crime and also only the court of law that can impose the length of the sentence.The latter is very correct these days after the European Court ruled that the Home Secretary shouldnot impose tariffs on prisoners, as this is the duty of the Judge and not the politicians. Although theAnti terrorism Act enacted by the parliament means that suspects can be detained indefinitelywithout trial thereby removing the doctrine of rule of law on foreigners suspected of terrorismactivities.Dicey’s doctrine also advocates equality before the law, i.e. every person is equal before the law ofthe land whether it is the politicians, judges, police officers and whether rich or poor. Althoughwhether this is true in practice is debatable. The Crown Prosecution Services have admitted in thepast that it was wrong not to charge many policemen when deaths occur in custody. This clearlyshows that many in the police force may have been operating above the law. Although recent anticorruption campaign by the Metropolitan Police shows that even the police are not above the law.In recent times many powerful former politicians have received prison sentences even though theyare rich and powerful and know their way through the corridors of power. This was a big messagethat the law will catch any one who breaks it without exception. However we are yet to see the ruleof law catching those who are serving politicians rather than former politicians. Also it is debatablewhether the rule of law applies to politician on the domestic affairs only and not includinginternationally affairs. There have been many debates as to whether some foreign policiesadministered by many governments in power confer with international laws.
Dicey also advocates that the constitution of the United Kingdom is the result of the laws made bythe judges by case by case. Although this is true, but dicey believed that Parliament has absolute andunlimited power to make and unmake laws. He said that ‘the sovereignty of Parliament favours thesupremacy of the law of the land’. This means that there are three bodies that constitute theParliament, namely the House of Lord, the House of Commons and the Monarch and that none ofthe three can act alone in making the laws.In any event, all laws passed by the Parliament must receive the Royal Accent before it becomes alaw. However by convention, it is the executives who now commands influence in the making of thelaws of the land. They introduce the bill in the Parliament and by party whip, the majority of themembers of the Parliament who are party members will vote in favour of the bill. It is also byconvention that the Monarch always accents any bill passed by the Parliament.These days the rule of law includes the access to justice, fairness, procedures and the rule of naturaljustice. There should be right to fair hearing by the unbiased court and access to justice for all. Courtprocedures should be simplified to provide easy access to those who does not have legalrepresentative. Those on low income to be provided with free legal representative so that they willreceive the same equal advice. It is the Parliament that will enact the laws that will ensure that allthese are done. Parliament has the supremacy to make laws and unmake them.In the Constitution of the United Kingdom it is the sovereignty of Parliament or also known as thesupremacy of the Parliament that has the dominant characteristics. It is the function of theParliament to make laws. They do this by enactment and these laws impose obligations on thecitizens. It controls the behaviour of the citizens and the things that they should do or not do. Thecourt usually enforces the disobedience of these rules.According to Dicey, (1915, pp. 37-38), ‘The principles of parliamentary sovereignty means neithermore nor less than this, namely that Parliament has, under the English Constitution, the right tomake or unmake laws whatever; and further that no person or body is recognised by the law ofEngland as having a right to override or set aside the legislation of Parliament’.Although it should be noted that the appropriate word to be used is ‘supremacy’ and not‘sovereignty’ even though both words are synonymous. The latter is mostly used in the internationallaw sphere. The doctrine of supremacy of parliament is not concerned with the parliament as aninstitution but is concerned with the Act of the parliament.
It worth’s to note that an Act of the parliament cannot become a law without the accent of theMonarch. The House of commons can also in certain circumstances pass laws without the consent ofthe House of Lords – Parliament Act 1911. But even with that, the Monarch must accent the Actbefore it becomes a law.The Parliament can make any laws as they wishes and sometimes regardless of whether the majorityof the citizens like it or not. Some laws can be arbitrary and discriminatory; once it receives the Royalaccent it becomes a law. One example is the current bill going through the Parliament, which tendsto limit the trial by the jury. Even though the majority of the public and the legal profession havevoiced concerns over this, but once Parliament passes such law and it receives the Royal accent, itbecomes the law of the land. Some laws are good and some are bad.Sir Ivor Jennings (1959, p. 170) said that Parliament could make it an offence for Frenchmen tosmoke in the streets of Paris. If such law is passed, the United Kingdom Courts must follow it.Parliament although cannot make a man a woman, but can make a law that all men should bereferred as women while all women be refereed as men.Sometimes bad laws cannot be enforced and the citizens can revolt in mass against bad lawsirrespective of the fact that Parliament has passed such laws and that it has entered in the statutebook. One good example of this was when the Government of Margaret Thatcher introduced the‘Pool Tax’. This brought about massive demonstrations and the disobedience of the law, which leadParliament to change that law.Parliament sometimes also rushes and makes laws either for political reasons or to satisfy somesections of the public or to satisfy the public opinion influenced by the press. Some of these lawsmay be drafted very badly that the enforcement of it becomes very difficult. The Dangerous DogsAct is one good example of such law.Recently, Parliament has been pushing to introduce the laws of ‘double jeopardy’. This is wheresomeone will face the court twice on the same offence, which he has been acquitted in the past.Before, this was unthinkable but Parliament intends to satisfy some sections of the public inintroducing such laws. All these are indications that the United Kingdom Parliament is supreme.Whatever laws are enacted by the Parliament must be interpreted and enforced by the Courts. Thecitizens will have to obey it although as I stated above, some laws are unenforceable. It is also worthsaying that laws are made by the Parliament and can also be repealed by the Parliament.
Parliaments cannot bind each other and therefore laws made by one Parliament can be repealed byanother parliament.This is usually the case when another Political Party takes over the majority in the Parliament andbecomes the government of the day. Although some laws will be so embodied in the society that itwould be almost impossible to repeal it without bringing the entire system into jeopardy. Anexample of this is the law that paved way for United Kingdom entry into the European Union in1972.It cannot be said in this recent times that the supremacy of Parliament is not without limitations.Since the enactment of the Human Right Act 1998, the power of the Parliament to make whateverlaws are now limited.Although the United Kingdom courts cannot strike out an Act of Parliament,but they can rule it to be incompatible with the European Convention on Human Right.Once such ruling of incompatibility is given, the Parliament will then change the law in order to makeit compatible with the Human Right Convention. The European Union (EU) laws now take precedentover laws made by the Parliament. Most regulations issued by the EU have direct effect in theUnited Kingdom domestic laws and takes precedent over the Act of Parliament. The United Kingdomcourts are now bound to enforce EU Laws.The European Court of Justice and the European Court of Human Rights can overrule an Act ofParliament. Most recently the court has removed the power of the Home Secretary to fix tariffs forconvicted offenders stating that such powers should be in the hands of the Judges and not thepoliticians.With the trend and the speed the EU is developing its power, it seems that in many years to come,the doctrine of the supremacy of the Parliament may be something of a history. If the UnitedKingdom joins the EU monetary union and the new EU Constitution is adopted, it seems that thedoctrine of the supremacy or sovereignty of Parliament will be conferred to history.