The Constitution and Separation of Powers:
‘Constitutional’ statute (per Laws LJ, Thoburn v Sunderland CC): a statute that conditions the legal
relationship between the citizen and the state and enlarges or diminishes the scope of fundamental
constitutional right.
Development of ‘legitimate expectations’ rule in 1980s ensuring that a minister/public official does
not alter a decision they had made or implied to make unless there is a good reason.
Entick v Carrington [1765] – not legal for King’s messenger to trespass
Case of Proclamations [1610] – King must make new rules through Parliament
R v Davis [2008] – anonymous witnesses allowed by courts
Cabinet Manuel 2011 identifies constitutional conventions: Sovereign not engaged in party politics;
to be a minister must be member of House of C/L; for troops to be committed, must first discuss
with HofC (bar emergency).
Adam Tomkins believes separation of powers is between the Crown and Parliament
Lord Mustill (dissenting) in R v Secretary of State for the Home Department, ex parte Fire Brigades
Union shows respect for the separation of powers – not judge’s job to administer the country;
should be sensitive when dealing with and maintaining separation of powers.
Lord Bingham in A v Secretary of State for the Home Department noted difference between political
and judicial matters and stresses the importance that they be dealt with separately by the
applicable institutions – Anti-terrorism, Crime and Security Act 2001 clash with Human Rights Act
1998
S.19 of the Immigration Act 2014 outlines what the courts may consider in their decisions-
executive exerts pressures on judiciary.
S.3 of the Constitutional Reform Act 2005 – safeguards to ensure separation of powers and public’s
trust in legal system: Reform to role of Lord Chancellor; creation of Supreme Court with Selection
Commission convened for appointment; Judicial Appointments Commission set up; s.64 outlines
judicial diversity; vacancies and diversity stats published
Parliamentary Sovereignty:
Parliamentary Sovereignty acts as Hart’s rule of recognition for the UK, i.e. it gives legal validity to
the UK Constitution.
AV Dicey on Parliamentary Sovereignty: Parliament can make or unmake any law (positive limb); no
person/body can override or set aside the legislation of Parliament (negative limb)
Lord Reid in Pickin v British Railways Board [1974] – Court not concerned with how an Act was
passed, if a Bill has been made an Act of Parliament through convention then it is legally valid and is
applied. PS not questioned
Lord Hoffman in in R v Secretary of State for the Home Department, ex parte Simms and O’Brien
[1999] (obiter dicta) – If a newer Act contradicts fundamental rights/constitutional law then the
Constitutional Act is applied. Newer law applied when Constitutional Act expressly repealed by
Parliament. (Case: Freedom of speech, prisoners talking to journalists)
Common law: implied repeal shows PS. Statute: Bill of Rights outlining what Parliament can do
shows PS. Goldsworthy: official consensus; mainstream idea of PS.
Laws LJ in Thoburn v Sunderland CC on implied repeal: constitutional Acts are enforced and applied
above non-constitutional Acts; if Parliament expressly intended to repeal the constitutional Act
then the non-constitutional Act is enforced and applied.
The idea of entrenchment limits Dicey’s positive limb of PS. While it is not part of the UK’s
constitutional traditions, an example of attempted entrenchment is in the Scotland Act 2016 which
recognises the Scottish Government as a ‘permanent part’ of the UK’s constitutional system.
In the 1997 White Paper, which regarded issues of human rights, the Government expressed that
courts should not have the power to set aside primary legislation on the ground of incompatibility.
‘Constitutional’ statute (per Laws LJ, Thoburn v Sunderland CC): a statute that conditions the legal
relationship between the citizen and the state and enlarges or diminishes the scope of fundamental
constitutional right.
Development of ‘legitimate expectations’ rule in 1980s ensuring that a minister/public official does
not alter a decision they had made or implied to make unless there is a good reason.
Entick v Carrington [1765] – not legal for King’s messenger to trespass
Case of Proclamations [1610] – King must make new rules through Parliament
R v Davis [2008] – anonymous witnesses allowed by courts
Cabinet Manuel 2011 identifies constitutional conventions: Sovereign not engaged in party politics;
to be a minister must be member of House of C/L; for troops to be committed, must first discuss
with HofC (bar emergency).
Adam Tomkins believes separation of powers is between the Crown and Parliament
Lord Mustill (dissenting) in R v Secretary of State for the Home Department, ex parte Fire Brigades
Union shows respect for the separation of powers – not judge’s job to administer the country;
should be sensitive when dealing with and maintaining separation of powers.
Lord Bingham in A v Secretary of State for the Home Department noted difference between political
and judicial matters and stresses the importance that they be dealt with separately by the
applicable institutions – Anti-terrorism, Crime and Security Act 2001 clash with Human Rights Act
1998
S.19 of the Immigration Act 2014 outlines what the courts may consider in their decisions-
executive exerts pressures on judiciary.
S.3 of the Constitutional Reform Act 2005 – safeguards to ensure separation of powers and public’s
trust in legal system: Reform to role of Lord Chancellor; creation of Supreme Court with Selection
Commission convened for appointment; Judicial Appointments Commission set up; s.64 outlines
judicial diversity; vacancies and diversity stats published
Parliamentary Sovereignty:
Parliamentary Sovereignty acts as Hart’s rule of recognition for the UK, i.e. it gives legal validity to
the UK Constitution.
AV Dicey on Parliamentary Sovereignty: Parliament can make or unmake any law (positive limb); no
person/body can override or set aside the legislation of Parliament (negative limb)
Lord Reid in Pickin v British Railways Board [1974] – Court not concerned with how an Act was
passed, if a Bill has been made an Act of Parliament through convention then it is legally valid and is
applied. PS not questioned
Lord Hoffman in in R v Secretary of State for the Home Department, ex parte Simms and O’Brien
[1999] (obiter dicta) – If a newer Act contradicts fundamental rights/constitutional law then the
Constitutional Act is applied. Newer law applied when Constitutional Act expressly repealed by
Parliament. (Case: Freedom of speech, prisoners talking to journalists)
Common law: implied repeal shows PS. Statute: Bill of Rights outlining what Parliament can do
shows PS. Goldsworthy: official consensus; mainstream idea of PS.
Laws LJ in Thoburn v Sunderland CC on implied repeal: constitutional Acts are enforced and applied
above non-constitutional Acts; if Parliament expressly intended to repeal the constitutional Act
then the non-constitutional Act is enforced and applied.
The idea of entrenchment limits Dicey’s positive limb of PS. While it is not part of the UK’s
constitutional traditions, an example of attempted entrenchment is in the Scotland Act 2016 which
recognises the Scottish Government as a ‘permanent part’ of the UK’s constitutional system.
In the 1997 White Paper, which regarded issues of human rights, the Government expressed that
courts should not have the power to set aside primary legislation on the ground of incompatibility.
