The Separation of Powers in the Contemporary Constitution Book contents
- Frontmatter
- Contents
- Acknowledgements
- Table of cases
- Introduction
- PART I Separation of powers, the Human Rights Act and the European Convention on Human Rights
- PART II Judicial engagement with the ‘political’ branches
- 4 Justiciability
- 5 Deference and proportionality
- PART III The creative powers of courts
- PART IV The separation of the judicial branch
- Select bibliography
- Index
4 - Justiciability
from PART II - Judicial engagement with the ‘political’ branches
Published online by Cambridge University Press: 10 January 2011
- Frontmatter
- Contents
- Acknowledgements
- Table of cases
- Introduction
- PART I Separation of powers, the Human Rights Act and the European Convention on Human Rights
- PART II Judicial engagement with the ‘political’ branches
- 4 Justiciability
- 5 Deference and proportionality
- PART III The creative powers of courts
- PART IV The separation of the judicial branch
- Select bibliography
- Index
Summary
The extended range of review
Looking beyond the narrow and simplistic view of the separation of powers which holds that the status quo is maintained, and sovereignty unscathed, by the enactment of the HRA, it is apparent that a significant realignment of governmental, specifically judicial, power has occurred. Prior to the implementation of the HRA – and in spite of pressures to the contrary, especially in judicial review cases – the ability of the courts to place reliance on the Convention rights and case law was quite strictly limited. Even in common law cases, where judges were rightly acknowledged to possess a greater creative role, the reluctance of the courts to usurp the legislative function had traditionally been marked. As Francesca Klug has argued, however, under the HRA, the courts have quite clearly been given powers of review which they simply did not possess prior to October 2000:
[as] they can now review the decisions and actions of ministers and officials in substantive, human rights terms and they can even consider the compatibility of primary legislation with the Convention rights in the HRA, something they were effectively constitutionally barred from doing before.
It is the recognition of such a reality, that informs the assertion that the HRA has brought about a significant redistribution of political power which has empowered the judiciary at the expense of the elected branches of government.
- Type
- Chapter
- Information
- The Separation of Powers in the Contemporary ConstitutionJudicial Competence and Independence in the United Kingdom, pp. 89 - 114Publisher: Cambridge University PressPrint publication year: 2010