Using American Jurisprudence to Resolve the British Separation of Powers Following the Human Rights Act 1998

Abstract

This essay will argue that the constitution of the United Kingdom is converging with that of the United States and other countries in terms of judicial review and the separation of powers. This is due partly to waning deference to Parliament by the courts, but most significantly by the enactment of the Human Rights Act 1998 (HRA). When the new separation of powers in the U.K. is compared to that of the U.S., especially by applying judicial review reasoning, the change in the British Constitution by the HRA can more clearly be seen. Beginning in antiquity first, this essay will address the foundations of the political system in England, and discuss the early development of the idea of judicial review of parliamentary legislation. Several elements emerge from this historical inquiry: the nature of the unitary political system and the very political basis of the constitution. Then this essay will move to the U.S. where judicial review flowered, to examine Marbury v. Madison and develop the premises within that decision that allowed Chief Justice Marshall to conclude that the court had the power to strike legislation. The Marbury thesis is then coupled with the stare decisis of the common law to produce the judicial review as known in the U.S. Following this interpretation of Marbury and U.S. judicial review principles, this essay will describe the powers of judicial review in the U.K. before the HRA, and after. There will be a specific application of the judicial review reasoning developed in the U.S. to the situation in the U.K. under the HRA. Considering the political nature of the British constitution, this essay will argue that entrenchment of constitutional principles in the British constitution is possible. We will see that the HRA has formed a real possibility of the de facto judicial power to strike legislation. Therefore, in both in the U.S. and in the U.K., the need to have a "modern democratic nation" which balances democratic rule and constitutional principles has resulted in structural arrangements both political and legal, which give much of the ultimate constitutional authority to the judiciary.

Keywords: constitution, United Kingdom, U.K., United States, U.S., Human Rights Act, judicial review, parliament, Marbury v. Madison, common law, stare decisis, entrenchment, separation of powers, judiciary, European Convention on Human Rights

JEL Classification: K10, K19, K33, K39, K40, K41, K49