3 All er 65 at 77–79; r. V. Khan (1996)). The courts will certainly take a

treaty into account where a statue is ambiguous (see Buchanan v. Babco

(1977); Brind v. Secretary of State for the Home Department (1991)).

There is also a broad view, supported by ambivalent dicta that the

courts will interpret all legislation enacted after the relevant treaty in

the light of the treaty on the assumption that Parliament would not

have intended to contradict treaty obligations (see Garland v. BREL

[1983 ] AC 251 at 277; Pan American World Airlines Inc v. DoT [1976] 1

Lloyds Rep 257 at 261; A-G v. BBC [1981] AC 303 at 354; A-G v.

Guardian Newspapers Ltd [1987] 1 WLR 1048 at 1096; cf. Blackburn v.

A-G [1971] 1 WLR 1037 at 1039. Both views rest on the premise that

118 General Principles of Constitutional and Administrative Law

Parliament has recognised the treaty, thus giving the court the key to

enter. It seems, however, that a minister exercising a statutory discre-

tion is not required to take a treaty into account unless required to do

so by statute (Brind (above)).

Summary

5.1 Constitutionalism means limited government and includes the ideas of the rule

of law and the separation of powers as means of restricting and controlling

government. The rule of law in its core sense emphasises the importance of

formal rules, agreed methods of interpreting them and fair procedures, as

binding on government and citizen alike. The core sense of the rule of law is

morally ambivalent since it can be regarded as an efficient tool of tyranny.

5.2 In an extended sense, appropriate to a liberal democracy the rule of law

requires the law reflects certain basic values derived from the notion of equal

respect for individuals. These are translated into rights closely associated

with legal processes such as non-discrimination, freedom of expression, and

access to government information.

5.3 The rule of law as expounded by Dicey has significantly influenced the UK

constitution. Dicey advocated that government discretion should be limited by

definite rules of law, that the same law could in general apply to government

and citizen alike, and that Britain does not need a written constitution because,

in his view the common law made by independent courts with practical

remedies provides a firmer foundation for individual rights. This has greatly

influenced the thinking of the legal profession, but may be unsuited to the

control of modern government. It is also difficult to reconcile the rule of law in

this sense with the principle that Parliament has unlimited power that can be

harnessed by a strong executive.

5.4 Other modern ideas of the rule of law include the increasing importance of

international treaties which attempt to establish codes of fundamental rights

and freedoms that governments should respect.

5.5 The doctrine of the separation of powers means that government power

should be divided up into legislative, executive and judicial functions each

with its own distinctive personnel and processes and that each branch of

government should be checked so that no one body can dominate the others.

A strict separation of functions is probably impracticable. A separation of per-

sonnel is essential in respect of judicial functions but arguably less so in other

cases. In all cases the notion of checks and balances is essential in order to

maintain the rule of law.

5.6 The separation of powers in its several senses plays an important part in the

UK constitution, but there is no coherent theory. The eighteenth-century consti-

tution which provides the framework of our modern system was proclaimed as

a ‘mixed’ or ‘balanced’ constitution. The three ‘estates’ of Crown, Lords, and

Commons shared power, so that each countered the excesses of the others.

This version of the constitution was displaced by the growth of the executive

and its dominance of the House of Commons through the party system. We now

have an ‘unbalanced’ constitution kept in place by an untidy and imperfect set

of checks and separations, which to a large extent preserve the independence

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Constitutionalism: The Rule of Law and the Separation of Powers

of Parliament and the judiciary but where there are certain tensions. Particular

aspects of the separation of powers should be noted throughout the book.

5.7 The separation of powers is most important in relation to the judiciary, where it

requires judges to be protected against interference from the executive, to

interpret the law according to principles that do not depend on the wishes of the

executive but also to restrain themselves from interfering with the executive

too far. The courts have a large degree of independence from the execu-

tive although there are important links with the executive, notably through the

office of Lord Chancellor, particularly in relation to the administration and

financing of the courts and the regulation of the legal profession. Superior

court judges have security of tenure and protection against legal actions but

the protection of inferior court judges varies. Judges are appointed and pro-

moted by politicians, in particular by the Lord Chancellor. Convention requires

that party political factors are not taken into account when making judicial

appointments.

5.8 Treaties made by the executive do not in themselves change the law thus

preserving a separation of powers but the law must, at least where it is

ambiguous or uncertain, be interpreted in line with them.

5.9 The rule of law may also include a right to disobey the law on moral grounds.

This includes a right to advocate disobedience and a right to information so

as to make a properly informed decision which take into account commu-

nitarian reasons for obedience. It is unclear what this means and how the law

should protect this right.

Further Reading

Allan, Constitutional Justice, chapters 1, 2, 3, 4.

Allan, ‘The rule of law as the rule of reason: consent and constitutionalism’ 115 Law

Quarterly Review 221.

Allan, Law, Liberty and Justice, chapters 2, 3, 5.

Barendt, An Introduction to Constitutional Law, chapter 7.

Barendt, ‘Separation of powers and constitutional government’ [1995], Public Law 599.

Craig, P. ‘Formal and substantive concepts of the rule of law: an analytical frame-

work’ [1997], Public Law 467.

Dicey, The Law of the Constitution, Part 2.

Jowell and Oliver, The Changing Constitution, chapter 3.

Lester, A. (2001) ‘Developing constitutional principles of public law’, Public Law 684.

Marshall, Constitutional Theory, chapters V, VI, VII, IX.

Steyn, ‘The weakest and least dangerous department of government’ [1997], Public

Law 84.

Sugerman ‘The legal boundaries of liberty: Dicey, liberalism and legal science’,

Modern Law Review 102.

Tivey (1999), ‘Constitutionalism and the political arena’, 70 Political Quarterly 175.

Waldron, The Law.

Woodhouse, D. ‘The office of Lord Chancellor’, Public Law 617.

Exercises

5.1 Do you agree with Thompson that the rule of law is an unqualified human good?

5.2 To what extent is Dicey’s version of the rule of law of value today?

120 General Principles of Constitutional and Administrative Law

5.3 Is the rule of law any more than an appeal to a particular political ideology?

5.4 To what extent can disobedience to law be justified under the rule of law?

5.5 Does the rule of law have a substantive content in terms of individual rights?

5.6 ‘The principle that laws will be faithfully applied, according to the tenor in

which they would reasonably be understood by those affected is the most

basic tenet of the rule of law’ (Allan). Discuss critically.

5.7 Does the idea of the mixed constitution have contemporary value?

5.8 Distinguish and illustrate the possible different meanings of the separation

of powers. To what extent does the UK constitution embody a separation of

powers?

5.9 It is sometimes said that the UK constitution embodies a ‘fusion’ between the

legislature and the executive. Do you agree? Is it desirable that the composi-

tion of the executive and legislature be separate?

5.10 Is there an adequate separation between the judiciary and the executive in

the UK constitution?

5.11 The Ruritanian government requests the UK to surrender to it, a former

British prime minister now living in retirement in Devon, on the ground that,

during his tenure of office, the UK’s treatment of asylum seekers from a pre-

vious Ruritanian regime amounted to torture contrary to an international

treaty. Advise the United Kingdom government.

6 Parliamentary Supremacy

The conventional basis of the UK constitution is parliamentary su-

premacy or sovereignty. This maintains that Parliament has unlimited

legal power to enact any law whatsoever, without of course denying that

there are many political and practical reasons why a particular Par-

liament may in fact be restricted. In the absence of a written constitution

the foundations of the doctrine, lying as they do in no more than general

acceptance, look frail. Indeed there are three possible contenders for

sovereignty, namely Parliament, the courts and the Crown, although

the latter conceded defeat in the 1688 revolution.

There is no logical reason why there should be a single sovereign

with unlimited powers, although, as we have seen, Hobbes believed

that such an authority was desirable in order to resolve disagree-

ment. For example in the USA power is carefully divided so that no

single entity has unlimited legal power. The doctrine of parliamentary

supremacy and indeed the concept of sovereignty itself has in recent

years been subject to attack from several perspectives as being unreal

and unjust in a modern community which depends on international

consensus and accommodations between competing interests and

values rather than the crude solution of Hobbes (see e.g. McCormick,

1993; Hunt, 1996; Allan, 2001; Barber, 2000). Defenders of the doc-

trine of parliamentary supremacy claim that the doctrine is consistent

with democracy in that it allows the people through their elected repre-

sentatives to have the last word. To this the opponents would rejoin

that, as we saw in Chapter 1, democracy involves wider values concern-

ing the protection of individual rights which the majoritarian principle

does not necessarily respect and which can be policed by the courts.

There is also a middle view which postulates a ‘dual sovereignty’

between Parliament and the courts according to which the courts when

interpreting statutes will assume that Parliament intends to respect

basic values. This view is unclear as to how far ‘interpretation’ can

extend; a problem that arises particularly in the context of the Human

Rights Act.

The foundation of parliamentary supremacy is normally said to be

the 1688 revolution which was a decisive political act establishing the

parliamentary basis of our constitution (Wade, 1955). An alternative

view is that parliamentary supremacy is the creation of the common

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122 General Principles of Constitutional and Administrative Law

law whereby in the interests of democracy the courts have conceded

power to Parliament. This view leaves open the possibility that some

common law principles are so fundamental that the courts would resist

any attempt to override them. Indeed, on one view, parliamentary

supremacy presupposes a law which identifies Parliament and states

how its will is to be expressed. Because we have no written constitution,

the nature of this law is contested. On another view, parliamentary

supremacy may amount to no more than a political practice of obey-

ing Parliament.

6.1 The Meaning of Parliamentary Supremacy

According to Dicey (1915, pp. 37–8), ‘The principle of parliamentary

sovereignty means neither more nor less than this, namely that Parlia-

ment has, under the English constitution, the right to make or unmake

any law whatever; 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.’

This has three aspects. Firstly Parliament has unlimited lawmaking

power in the sense that it can make any kind of law. Secondly, the legal

validity of laws made by Parliament cannot be questioned by any other

body. Thirdly, a Parliament cannot bind a future Parliament. Dicey

tried to split sovereignty into separate legal and political elements,

arguing that Parliament was legally sovereign in the sense that the

courts must obey it, but not politically sovereign. Dicey (1915, p. 70)

described legal sovereignty as ‘the power of law making unrestricted by

any legal limit’ and contrasted this with political sovereignty, as in the

sense of the body ‘the will of which is ultimately obeyed by the citizens

of the state’ (ibid.). He recognised both ‘internal’ and ‘external’ politi-

cal limits on the lawmaker. Internal limits are limits inherent in the

culture of the people who make up Parliament. The political and moral

pressures imposed by constitutional conventions, patronage and party

discipline are internal limits. The external limits consist in what those

subject to the law are prepared to accept. Parliament cannot in practice

pass any law it wishes, and its laws might be condemned as morally

or politically bad or even as unconstitutional in a broad sense. Dicey

thought that political sovereignty lay in the electorate.

Dicey’s distinction between legal and political sovereignty may be

too sharp. Firstly, law derives from politics so that there must be a

political reason why Parliament rather than some other body should

be obeyed by the courts. Secondly, legal rules are powerful political

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Parliamentary Supremacy

weapons since they authorise violence against persons and property.

Thus whoever is able to control the legal sovereign is likely also to

be the political sovereign. Thirdly, parliamentary sovereignty is bound

up with the political issue of national sovereignty. The legal doctrine is

sometimes raised as a reason for not surrendering national sovereignty

in the international arena.

On the face of it, parliamentary supremacy is in the Hobbesian

tradition of an absolute ruler. However, Dicey’s version of parlia-

mentary supremacy differs crucially from Hobbesian thinking. Firstly,

the Hobbesian sovereign exists to protect life, so that, although the

sovereign has unlimited powers, if it fails to protect life there is no

longer a duty of obedience. Secondly, Hobbes did not separate legal

and political sovereignty. Thirdly, Hobbes’s sovereign must be a single

unitary body, either a monarch or an assembly. Dicey’s legal sovereign

is divided comprising three bodies, namely Queen, Lords and Com-

mons. Only in combination can they exercise the power of Parliament.

Thus, Blackstone who defended parliamentary supremacy in the

eighteenth century, linked the doctrine with that of the separation of

powers. Indeed at the time Dicey first wrote (1885), the House of

Lords had substantial power to block legislation. Dicey’s doctrine

does not therefore depend on the doubtful assumption that there must

be a single ultimate source of power. Indeed Dicey denied that there

was a logical need for an ultimate sovereign (1915, p. 143) merely

pointing out that the evidence suggested that we have in fact adopted

the doctrine of parliamentary supremacy.