Saturday, August 26, 2006

Separation of Powers

  • Fundamental principle idea, doctrine: conventional, legal, quasi-legal aspects.

  • Purpose: Separation of Powers explains the distribution of power but is largely power-limiting.

  • The control of power depends on its fragmentation (Harlow).

  • Classical view: 3 government functions : legislative, executive – administrative, judicial.

  • Separation of Powers may be approached as descriptive or as prescriptive (it requires).


Constitutional theory: no single doctrine or model, but many (vile); for example:


  • Separation of Persons: Constitution forbids different branches to consist of the same people (prevent over-concentration of power) (Montesqui; Locke).

  • Isolationist or non-participation model: constitution assigns one function to one institution and forbids interference by others in its exercise. E.g. Vertical: Roman Catholic Church – Canon Law: three hierarchys (power confined).

  • Participation of control model: checks and balances: institutions in different branches are empowered to control exercise of power by bodies in other branches (e.g. Horizontal: US constitution: congress, president supreme court); Marshall suggests this is the most sophisticated of the SOP models.


Constitutional practice in the UK debate amongst theorists (e.g. DeSmith v Munro).


  • Separation of persons: Composition laws illustrate this in its prescriptive form e.g. House of Commons Disqualifications Act 1975: e.g. Judges civil servants barred from membership of HC as legislature (compare e.g. Monarch : fusion).

  • Isolationist Model: (a) authorisation to tax assigned to legislature (parliamentary statute authorises executive to levy), executive cannot levy without statutory authority (Wiltshire Diaries); (b) parliamentary sovereignty; law – making (by statute) assigned to parliament, courts cannot dis apply statute. (Diplock in Duport); (c ) Royal Prerogative (mainly executive functions courts cannot question exercise (classical idea); but, at the same time e.g.: executive may be empowered by parliamentary statute to make secondary legislation.

  • Control Model: e.g. Royal prerogative: executive act of dissolution of legislature Parliament administrative law: judicial review of executive action; but the judges are the legislators of the common law (Munro: e.g. Shaw, Knuller) (exceptions to isolationist model represent illustrations of the control model).



Case study: illustrates the difficulties in identifying which SP model operates in UK.


  • Haughton v Smith (1975) HL refuses to recognise attempting the impossible as criminal (to do so would unsurp Parliament law-making: Hail sham): isolationist.

  • Law Commission (1980) (executive) recommends change in law (new crime) and reversal of the decision in Haughton v Smith.

  • Criminal Attempts Act 1981, s.1: person is guilty of attempt to commit an offence 'even though facts are such that commission of it is impossible.'

  • Anderton v Ryan (1985) HL: Parliament failed to create a new offence (asinine if guilty only when there is mens rea; dissenting judge (edmund David): new offence created; majority employs control model (and frustrates Parliament).

  • Shivpuri (1987): HL reverses Ryan decision by invoking 1966 practice direction (i.e. Reassertion of isolationist approach).



Possible Conclusion:


The difficulties with the doctrine arise mainly if an attempt is made to regard it as absolute. Certainly the doctrine continues to shape constitutional arrangements, and [it] influences decisions, and in some limited form is necessary both for efficiency and liberty.” (Munro).

Human Rights

The origins of Human Rights


  • Modern view of Human rights starts in the 18th century as a philosiphical concept – rights inherent in being human.

  • Developed as a political doctrine in revolutions C18th against oppressive rulers.

  • French declaration of the Rights of Man (1789).

  • American Bill of Rights (1791).



Human Rights and Democracy


  • Conceived as rights against oppressive rulers.

  • Becomes part of liberal democratic theory.

  • Rights that override even popular will or that of democratically elected government.


Nature of Rights


Civil and political rights

  • e.g. Freedom of the person; freedom of expression; freedom of association: right to a fair trial.

Social and economic rights

  • e.g. Right to employment, right to shelter: right to health care.



Traditional British Approach Civil Liberties


  • Freedom to do anything that is not restricted by common law or statute.

  • Recall Dicey's analysis to the rule of law in the constitution:

  • Entick v Carrington (1765)
    “The great end, for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.” (Lord Camden CJ).

  • Presumptions in interpretation of statutes (see JR (illegality))
    (a) No taxation without parliamentary authority
    (b) Presumption in favour of personal liberty.
    (c) Presumption in favour of freedom of expression.

  • Principles of natural justice (right to a fair trial).


Shifts since Dicey


Limitations of common law in development of new rights in changed society:

  • Malone v MPC [1979]
    If the tapping of telephones by the post office at the request of the police can be carried out any breach of law. It does not require any statutory power to justify it: it can be lawfully done simply because there is nothing to make it unlawful.

  • Rights against discrimination.




Shift to Legislative Protection


Legislative responses to particular political issues:

  • Race Relations Act 1976
    Makes it unlawful to discrimination against a person, directly or indirectly on racial grounds in employment; education; housing; and in the provision of goods, facilities and services.

  • Sex Discrimination Act 1975.
    This Act prohibits direct or indirect sex discrimination against individuals in employment and can apply to both men and women of any age.

  • Disability Discrimination Act 1985
    Legislation designed to encourage provides to offer services to disabled people without discrimination due to their disability. Aspects of the Act impact on the design of premises, licensed hackney carriages and trains and the provision of services.

  • Data Protection Act 1998
    The Act gives you the right to access information held about you by organisations can use information that they hold – including how they acquire, store, share or dispose of it.

  • Freedom of Information Act 2000
    General right of public access to information recorded by state authorities.



Status of Convention in UK law.


  • Dualist and Monist approaches to international law obligations.

  • Before HRA (Human Rights Act) no direct use of convention in UK courts.

  • Referred to: Derbyshire CC v Times Newspapers.
    A local authority brought a libel (A false publication that damages a person's reputation) action against a newspaper which had questioned its handling of a super equation fund.

    Court of Appeal applied Art.10 of the European Convention on Human Rights in finding that a local authority cannot sue for libel.

  • Limits on use of Convention (Malone v MPC; Brind v Home Secretary)


Article 3 – Prohibition of Torture

  • No one shall be subjected to torture or to inhuman or degrading treatment or punishment.



Article 10 – Freedom of Expression


Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and import information and ideas without interference by public authority and regardless of frontiers.


The exercise of these freedoms, since it carries with it duties may be subject to laws and restrictions like:

  • national security

  • prevention of disorder or crime

  • Protection of health or morals

  • Protection of the reputation or rights of others.

  • Preventing the disclosure of information received in confidence.

  • Maintaining the authority and impartiality of the judiciary.



Convention mechanism for enforcement


  • Convention imposes duty on states parties 'to secure everyone within their jurisdiction' the convention rights and freedoms (Art 1).



European Court of Human Rights

  • Petition to the European Court of Human Rights (nothing to do with the ECJ!)

  • Court sits in 3 forms:
    (1) Committee of 3 (admissibility)
    (2) Chamber of 7 (merits).
    (3) Grand chamber of 17 (serious question of interpretation or risk of if judgements).

  • Court gives judgement – may award compensation.

  • Government then bound to take remedial action.

  • Action reviewed by Committee of Ministers of C of E (Nothing to do with Council of Ministers of EU).



Effect of ECHR on Law in UK


  • Decisions of the European Court of Human Rights had a substantial effect.

  • Prisoners rights (privacy of correspondence; access to legal advice and courts: openness of prison regime).

  • Military discipline


  • Corporal punishment in schools.

  • Telephone tapping.

  • Extradition to USA where risk of death row.



Incorporating the Convention in UK Law.


For Incorporation

  • Rights must be enforceable against the state.

  • Parliament not effective to protect the individual and minorities.

  • Judges may hold executive (and legislature?) in check – distanced from politics – will act on principle not political convenience.

  • Better for UK courts to protect rights that European Court of Human Rights (EctHR).

Arguments against incorporation

  • UK home-grown protection of rights better than alien charter of rights.

  • Parliament is the proper protector of freedoms.

  • Incorporation would bring the judges into the centre of political controversy..

  • Judges lack democratic legitimacy.



Human Rights Act 1998


  • Into force 2nd October 2000. (Why the delay? To give the chance to train the judges!)

  • 'Convention Rights' enforceable in the UK courts.
    - set out in schedule to the Act.

  • Unlawful for 'public authority' to act incompatibly with convention rights.


Decisions on Compatibility


  • A victim of an unlawful act (s7). May bring proceedings or rely on the convention rights in any legal proceedings.

  • It may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (s8)

    S7.-(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful.
    (a) Bring proceedings against the authority under this Act in the appropriate court or tribunal, or
    (b)Rely on the convention right or rights concerned in any legal proceedings but only if he is (or would be) a victim of the unlawful act.






Public Authority

  • Section 6(3) includes:
    (a) a court or tribunal, and
    (b) any person certain of whose functions are of a public nature.



R (on the application of Heather and Others) v Leonard Cheshire Foundation and another (2002)

  • Local authorities had duties to disabled people to provide residential accomodation.

  • They placed applicants in LCH home.

  • LCF announced change of use of home; alternative accommodation.

  • Breach of Article 8?Respect for ' private and family life', 'home'



Parliamentary Sovereignty


  • Houses of Parliament not public authorities.

  • Avoidance of conflict statement of compatibility

  • Communications Act 2003.

  • Derogation (Anti-Terrorism, Crime and Security Act 2001).


Interpretation


  • 3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights.


Declarations of Incompatibility – Section 4


  • If the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility.



Declaration


  • (a) Does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

  • (b) Is not binding on the parties to the proceedings in which it is made.

  • When Court is considering a declaration shall give notice to minister.

  • If a Minister of the Crown considers that there are compelling reasons he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility (S.10).



Courts :- England & Wales that may make a declarations


  • House of Lords

  • Judicial Committee of the Privy Council.

  • Court of Appeal

  • Courts Martial appeal court.

  • High Courts.






Monday, August 07, 2006

New material...

I was looking at my past blog posts the other day, and I realised something. I needed new material to write about. Something other than Conan O'brien or the Red Hot Chili Peppers. Something fresh to mix things up a little bit. Something to break the formulaic and linear type of posts that are taking over my blog. The fact that its been two months since I posted anything should help.

The paragraph above is what academics like to call "complete and utter Bullshit". You can never get too much Conan. Here is another clip from a Finnish TV show where he was interviewed by 2 Kids. It is hilarious!