When studying the sources of law and the
English legal system it is important to be aware of three main theories:
Parliamentary Sovereignty
The
Separation of Powers
The
Rule of Law
Parliamentary Sovereignty (AKA
Supremacy)
According to AV Dicey in An
Introduction to the Study of the Law of the Constitution 1885,
Parliamentary Sovereignty consists of 4
elements:
1. Parliament may introduce any law it
wishes
2. Parliament can not bind future
Parliaments
3. Laws made by Parliament override all
other forms of
law
4. The courts must apply the laws made by
Parliament.
Until 1972 the UK Parliament held
Sovereignty. Parliament was only limited in its actions by political, media and
public pressure. This contrasts with other jurisdictions where there exists a
Bill of Rights granting the courts powers to advance the rights of the citizens
above that of Parliament. However when we joined the EEC (now EU), Parliament
handed over sovereignty to Europe to the extent that EU law now takes precedence
over Acts of Parliament. Outside the areas of law that EU law operates
Parliament retains supremacy. Most notably Parliament retained Sovereignty in
relation to the European Convention on Human Rights when it introduced the Human
Rights Act
1998.
The
Separation of
Powers
French Constitutional theorist,
Montesquieu introduced the concept of the separation of powers in Spirit of
the Laws 1748. According to Montesquieu, an ideal state should be divided
in to three separate arms; the legislature (parliament), the executive
(Government and Local Authorities) and the judiciary. Each of the arms should
have their own separate function: Legislature - make law, executive - administer
the law, Judiciary - apply the law. Each arm is to remain separate and not
impinge on the others function. They should be balanced and able to check and
limit the power of the other arms. Accordingly, if one arm of the state became
all too powerful this would be indicative of an oppressive state and to the
detriment of citizens.
In the UK constitution we do not strictly
adhere to the separation of powers. The bulk of the law making is carried out by
the executive through delegated legislation and our judges develop the law also.
The theory of the separation of powers is influential in measuring how our
constitution operates. Indeed the Constitutional Reform Act 2005, which among many other
provisions replaces the House of Lords court with a new Supreme Court in Oct
2009, is aimed at strengthening the separation of
powers.
See an interview with Lord Phillips Lord
Chief Justice on judicial independence here.
The Rule of Law
The Rule of law is considered to be fundamental to
all democratic legal systems and dates back to Aristotle, although popularised
by AV Dicey. It encompasses basic freedoms including no punishment without
infringement of the law, freedom from arbitrary power and arbitrary laws. The
laws must be certain, legible and accessible to comply with the rule of law. It
also militates against retrospective laws. The Rule of Law requires equality
before the law ie all citizens are subject to the same law no matter what their
rank or station in life.
