PARLIAMENTARY SOVEREIGNTY AND THE SEPARATION OF POWERS
It has been my experience as a practising barrister from the 1960s onwards that the academic discussion about parliamentary sovereignty and its doctrine of the separation of powers has never fallen from the lips of the judiciary.
Even the most recent commentary in Public Law (the December issue of 2012), discussing the famous GCHQ case, did no more than reveal three of the Law Lords agreeing that the Government’s exercise of its prerogative power was judicially reviewable by the courts, while the other two thought that the power, by virtue of its notice, was not reviewable. This was not a rehearsal of the separation of powers, but the correct distribution of that power. I was personally involved in that case - appearing as counsel for the trade unions - and I do not recall any of the academic literature being cited in the relevant quotes by their Lordships in the various judgments. I had invariably based my own point of view, from my earliest days at the Bar, on the apt remarks made by O’Brien J in the Irish Supreme Court in Buckley and others (Sinn Fein) v Attorney-General and another:the manifest object of this Article [Article 6 of the Irish Constitution of 1937] was to recognise and ordain that, in this State [which followed the Westminster model] all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that those powers should not be exercised otherwise.11
So it was thought throughout my career, until Lord Sumption, in the FA Mann lecture for 2011, asked the contrariwise argument, whether it is ‘a fundamental question about the relations between the judiciary and the two political arms of the State, the executive and the legislature’, and answered rhetorically, ‘how far can judicial review go before it trespasses [italics supplied] on the proper function of government and the legislature in a democracy?’ It is the first time that the separation of powers has been thus articulated in the form of an institutional divide among the three organs of government.
Distribution of governmental powers (as I shall show) has never rested upon the institutional separation of the arms of government. The unanswered question is what that distribution of powers should pertain at any time. Has there ever been a dividing line between the organs of government in which it could be said that the ownership of powers could not be trespassed upon?The Courts’ Law-making Powers
Even before the advent of a distinct English administrative law via judicial review in the 1960s, and the establishment of the Human Rights Act 1998, there was in practice no effective separation of powers, in three separate legal developments. It is trite law to say that Parliament makes the law, and the courts give effect to that law. In practice, law-making is a shared occupation in a number of ways. The courts do not simply enforce the laws on the statute book, but are actively involved in their interpretation. Where, as is often the case, a statute is ambiguous or obscure in its parliamentary language, the courts will seek to find the intention of Parliament by interpreting the statute, sometimes (often) years after the statute has [15] first appeared. Time alone requires protective action in the courts, while Parliament fiddles. Any statute must, by definition, be ambulatory and require replenishment meanwhile. It will be conditioned by both time and space. Here the courts are recognisably the secondary legislators. That quite apart, any decision of the courts ‘makes law’. As Lord Reid stated extracurricularly at the SPTL conference in 1972, no one nowadays believes that judges do not make the law; such a thought is like Alice in Wonderland. Similarly Lord Radcliffe pooh-poohed the notion that judges do not make the law. They palpably do. No one suggests otherwise. The common law of England, moreover, proceeds upon the assumption that, barring increasing statutory intervention, it can act like a legislature. When in the case of Shaw in 1962 the House of Lords established the right to create a law of morals, and many years later affirmed Lord Lane CJ’s decision to render husbands liable of rape against their wives, the judges were engaged in making new laws.
And anyone reading the speeches of the Law Lords in R (Jackson) v Attorney-General[16] cannot avoid the contemplation of the common law in action at a future date. The judicature alone cannot be expected to bear the whole burden; as the late Arthur Chaskalson, Chief Justice of South Africa, said:Courts cannot be expected to carry the full burden of what might be required. In a democracy parliament and civil society [the legislature and the executive] are also defenders of the rule of law and it is essential that they should play their part in its protection.[17]
Lord Bingham in his Rule of Law claimed that that was what makes the difference between good and bad government.
The development of an English style of administrative law in the 1960s marked a clear case of judicial creativity. By amendment to Order 53 of the Supreme Court Rules - written incidentally by the legal profession through its Rules Committee - the courts were able, English-style, to fashion the ancient prerogative writs (later, orders) into an application for judicial review. Since then the judges, with no assistance from the legislature, have developed the greatest growth industry in our legal system. This was achieved by the exercise of legalistic growth of the common law. If judicial review has not transformed the legal landscape, the Human Rights Act 1998 gave further impetus to the judicial power to exercise extensive powers over civil authorities. After 2000 the courts were empowered to declare any acts or decisions by Ministers and civil servants incompatible with Articles of the European Convention on Human Rights and Fundamental Freedoms. Incompatibility was an open invitation to the legislature to reform the violation into legislation that would render the law compatible. The compromise with parliamentary supremacy in legislation was ingenious. It affirmed the constitutional arrangement of apportion of powers, not their separation.
The courts’ powers to engage in law-making were not limited to activity as a secondary legislature, as indicated. A deluge of litigation, delegated by Parliament to respective Ministers, rendered such delegation supervised by the courts. Judges were able to declare the statutory instrument, drafted by ministerial officialdom, as ultra vires the primary legislation, thus conferring a further control by the courts over the scope of parliamentary legislation.
None of this answers the question: what then are the limitations on the power of the courts over acts of government? Is there such a thing as a judicial restraint that operates to restrict the ambit of judicial power over executive and (in certain circumstances) legislative actions? If so, where is the boundary line to be drawn? The question is often asked, yet never given a definitive answer. It was first discussed in the House of Lords in the Fire Brigade case in 1987 - most informatively in the dissenting judgment of Lord Mustill.
The judgment of Lord Mustill in 1984 (the date is important) in R v Home Secretary, ex parte Fire Brigades Union[18] - the fact that it is a dissenting judgment is of no consequence, since it accords with judicial expression of the need to observe the precise nature of our constitution - is of immense significance. If, on the face of it, it discloses a traditional approach to our constitutionality, on close analysis it bears usefully in the present-day view of the constitution. His opinion (actually it is a peroration) suffices to explain the purpose that lay behind 300 years of developing democratic rule.
I quote the words of Lord Mustill:
It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain.[19]
While the phrase ‘sovereignty of powers’ is the familiar expression of the lawyer and the constitutionalist, the use of the final word ‘domain’ is instructive.
The separation is of all three. It is thus institutional, not a matter of their functioning. The word does not purport to express any operational or functional activity of the institutions. It is heritable property held in possession, lands or dominion. It is an institution, an area of influence or rule. The meaning of the sentence is that all three parts of the constitution are separate institutions, while their powers (as I will demonstrate) are shared and not distinct or discrete. No dissociation of the two ‘political’ arms from the judicature (presumably, but inaccurately described as non-political). They are all three concerned with ‘good government’; the fact that the trio are complementary in membership (parliamentary and executive officers) and the third unelected is of no significance in terms of their functioning. The three are institutionally separate: their powers are complementary. What those powers constitute was the subject of professional discussion in 2014.Lord Mustill then explains the separate functions of the three institutions in familiar traditional form, and adds that
it requires the courts on occasion to step into the territory which belongs to the executive [institution], to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended [fairness or proportionality being a power shared by all the branches].
He ends the paragraph with the words
it is the task of Parliament and the executive in tandem, not the courts, to govern the country. In recent years, however, the employment in practice of these specifically Parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law, and with the minimum standards of fairness implicit in every Parliamentary delegation of a decision-making function.
And then there is added:
To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago.
- a description of the residual powers in the common law. That clear allusion to the development of administrative law by Lord Reid and his colleagues in the 1960s demonstrates the pre-existing separate institutions, but their separate powers lay fallow and uncultivated, if not actively dormant in the previous years. The need now (as we shall develop) is some guidance as to the proper distribution of the powers of government as properly allocated to the three institutions.
Absent a written constitution that marks out the boundary line between executive action and court intervention in the exercise of the powers of government, the distribution of powers must be clear. Lord Mustill concludes his observation of the unwritten constitution by stating - pre-Human Rights Act 1998 and devolutionary powers - that the political and social landscape has changed beyond recognition, but the boundaries [note the plural] remain; ‘they are of crucial importance.’ What then are the boundaries of power that are not separate but complementary in 2014?