Law Sessions With Jennifer Housen’s Podcast

Judiciary vs. Legislature: Who Really Makes the Law?

Subscriber Episode • • Jennifer Housen • Season 2 • Episode 4

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Examining the separation of powers doctrine, we explore the dynamic relationship between the judiciary and legislature, with particular focus on the limits of judicial interpretation and the supremacy of Parliament in the UK constitutional framework.

• Parliament stands as the supreme lawmaking body in the UK, while the judiciary's role is limited to interpreting rather than striking down legislation
• The Picking v British Railway Board case established that courts cannot invalidate statutes even when procedural irregularities in passage are alleged
• Lord Denning's view that courts should "fill gaps" in legislation contrasted with Lord Simons' position that doing so usurps legislative function
• R v R case (1991) effectively abolished the marital rape exemption, demonstrating the courts' ability to develop common law in significant ways
• The UK Supreme Court, unlike its US counterpart, cannot strike down unconstitutional laws, raising questions about its true "supremacy"
• The separation of powers requires checks and balances between the three state organs to prevent concentration of power


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to this final segment of this public law session in relation to separation of powers. Now, we have considered in the earlier segments the overlaps or, in fact, the dynamics which operate as it relates to two particular organs of the state, and we've already considered the executive and the legislature, and we've also looked at the executive and the judiciary, and we ended on that note just before the break. What we are, of course, going to complete with here is to consider the judiciary and the legislative, the legislature's overlap and the dynamics which operate between them, and then, of course, we'll conclude to look at looking at some of the contemporary issues in relation to this area. Now, when you look at the judiciary and the legislature, well, the first point, of course, is that Parliament, stronger of the two, parliament is the supreme lawmaking body. Now, you may be in a jurisdiction, for example, which has a codified constitution, and if that is the case, then that codified constitution stands as the supreme law. In the UK, however, and when you listen to the later lecture of parliamentary sovereignty, of course, you will see that that is not the case in the uk. Parliament is the supreme law making body and, as such, the judiciary merely interprets the law, so it is not within the court's remit to strike down what it might consider inconsistent law, for example and the classic case is a case called peicking and British Railway Board. It is not for the courts, for example, to investigate what it is that Parliament meant, or whether an act had been obtained or went through Parliament in breach of parliamentary procedure.

Speaker 1:

He had, in picking was a claimant, uh, mr picking, he was a railway enthusiast and what he had done was to buy some land which adjoined a disused railway line. And he bought the land for about 10 shillings in 1969. Now, he wasn't doing this without any particular um motive, uh, in mind, or rather, I should say it was not that he wasn't doing it with a motive. It appeared he clearly was doing it with a motive because it appeared from the report that his intention was to gain ownership of part of the railway line when it ceased to be used by the railway company. Now, it was that there was an act in place, the 1836 Act, which actually said that in circumstances where there was this disuse, then railway land would go to the owners of the adjoining land. So he of course, thought, thought, well, it's going to come up, let me try and get this. Well, mr Pickens had made himself such an owner poised to get this land. Well, the British Railways board subsequently claimed that it owned the land by virtue of a private act of parliament which had been passed in 1968, which cancelled the reversion clause of the 1836 Act, and what it did was to vest abandoned lands in the board. So the point was that the 1836 Act said if you're an adjoining landowner and railway lines become disused, you get that part of the land. The 1968 Act says no, if a railway land becomes disused, then ownership of the land vests into the British Railways Board.

Speaker 1:

Well, mr Picking sought a declaration from the court that the 1968 Act was ineffective because the board had misled Parliament and that the standing orders of the House which required that landowners be given a notice, and so on. He said that the standing orders hadn't been followed, they hadn't been complied with, and so he of course didn't know about this. So he of course might have sought to challenge it. The court said that it had to reject his claim because its function was to consider and apply acts of parliament. It was not open to a litigant, for example, to seek to invalidate a statute or an act of parliament. The court says it is not for us to look at the manner in which an act is considered. All we have to do is to see if it's an act of parliament and when we consider that it is an act of parliament we just have to interpret that act of parliament. So when you look, for example, at the development of the common law, we see of course that the courts by and large will take that position. But that is not to say that the courts have not come forward in certain instances to apparently make law. But for the purposes here we see that the court is saying to Mr Pickens yes, we understand that you're saying that certain procedural issues won't comply with, but it is not for us to strike down that statute.

Speaker 1:

Now, when we look at the case of Mager and St Melon's District Council and Newport Corporation this is a 1952 case where we see comments coming from Lord Denning and Lord Simons in relation to this aspect of this principle. And Lord Denning said it's interesting when you get anything from Lord Denning because you know that he's going to go out on a limb and he really is going to say what his views are. He actually said in the case we do not sit here to pull up the language of parliament to pieces and make nonsense of it. We sit here to find out the intention of parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. Basically, he was saying that by applying the literal rule, the intention of parliament could be destroyed. So Lord Denning was one of these.

Speaker 1:

When we look at statutory interpretation, for example in English legal systems, the idea is that we know, for example, legal systems. The idea is that we know, for example, that it is for the judges to interpret law. But Lord Denning says that if it is going to give some sort of view, that is clearly not right or unconscionable, it was open to the courts. When the case was appealed to the House of Lords, lord Simons in the case looked at Lord Denning's approach and said that no, it is not for us to fill the gaps. Lord Simons said that if you take that approach, then it is more or less a naked usurpation of the legislative function under the guise of interpretation. If a gap is disclosed, the remedy lies in an amending act, and that's how he saw it. He said, it is not for a court to fill the gaps. But, as we know and have seen in various judgments or will have seen will come to see, rather, the various judgments of Lord Denning you will see that he does push the envelope a bit and he does consider in certain cases that the court is there to fill in the gaps.

Speaker 1:

Well, let's look at some of the cases that have come on board. When you're looking at the separation of powers, r&r and R&R is a case that cuts across English legal systems public law, criminal law and it has to do with a marital rape, and it looked at the marital rape exemption and it more or less firmly appeared to abolish it by the House of Lords in 1991. Now, when we look at R&R, this was the first occasion where the marital rights or marital rape, in this regard, exemption actually reached the House of Lords. There were about three cases before, but it didn't reach this point and we see that there had been these number of decisions and the question that it was about time that it got to the House of Lords. Now the leading judgment, which was unanimously approved, was of course given by Lord Keith, who said that the contortions being performed in the law courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule, and the court held here that, agreeing with the earlier judgments, it would find that the fiction of implied consent was no longer useful in the law of today. Now it's interesting because R&R shows that, whereas there is no statutory provision at the time which is why the case was brought there was no statutory provision that said that there could be a case made out for rape where the parties were married. But the courts, of course, looked at it here and said, even before any subsequent statutory provision, and said that it could find as such.

Speaker 1:

Now one of the interesting things for me as well and for you to consider is whether or not the fact that Parliament said nothing on the back of that case suggests that Parliament agrees with the court. Because that is one of the points is that when you look at court constructs, when you look at the development of the common law and cases where, by and large, it has come from the courts, the question is whether or not, if they're exercising legislative functions, are they exercising legislative functions or is it that they are allowed by virtue of the court sorry, by virtue of parliament not actually striking it down subsequently. So when you look at two cases Sean the DPP, and Nuller and the DPP interesting cases to do with public morals, and it looks at the offense of conspiracy to corrupt public morals and this was an offense which had not before seen, neither in statute or the case law. But the courts were not restrained by that. They felt that they really could find along those lines and again, arguably, the silence of parliament seems to give some credence to the concept in burma oil and load advocate, which is why I talk about if parliament is not happy. When you look at Burma oil and load advocate, for example, we see the courts taking a position where the legislature then decides that it will certainly not allow it to stand. So when you consider the case of Burma oil and load advocate, certainly we will look at it in depth under parliamentary sovereignty, suffice it to say. For present purposes, what we had was a court decision which was retrospective and therefore nullified a decision that had been made by the courts. Now this, of course, may seem like it goes against, you know, your Article 7 under the ECHR rights, but the point here is for the context of separation of powers. It certainly served to show that parliament remains the supreme lawmaker and the legislature is there to legislate and the judiciary is there to interpret.

Speaker 1:

Now, when you look at the separation of powers, of course there are. There's legislation, for example the disqualification act that provides who can sit uh as an mp and so on, and this, of course, uh includes certainly, um uh, members of the judiciary. We have seen a recent change, uh in 2001 with the house of commons removal of clergy disqualification act 2001, which says that you can have clergy members now sitting. It does have some minor exclusions, but it does allow for it. So, all in all, we have seen some recent changes. So, for example, we see the Constitutional Reform Act. We've now got this new super-duper Supreme Court.

Speaker 1:

Now, when you look at one of the aspects of the Supreme Court, the question to ask is is it a true Supreme Court? Because under the separation of powers, the idea of the judiciary is that if it finds legislation unconstitutional, it can strike it down. So, for example, when you look at the US and you look at certain seminal cases in the US, for example our Roe and Wade to do with abortion rights, or indeed when you look at the Brown and Board of Education, for example, when you look at segregation to do with education, we see the Supreme Court striking down on constitutional laws. Of course, in the UK that is not the case, in that there is a Supreme Court. So a good question to ask is is it that what you have in the UK is the Supreme Court, the Supreme Court, as opposed to a Supreme Court? Because what does a Supreme Court do versus the Supreme Court? So in England, the Supreme Court is the highest court of appeal. Is that what it is? Only or does it carry out functions of a Supreme Court, which is that it guards the constitution? And it is only, or does it carry out functions of a supreme court, which is that it guards the constitution.

Speaker 1:

And it is certainly something to consider when you look at this area because, as I said, it is certainly tied up in the context of this doctrine. Now, there are certainly other doctrines which impact on it, but as we go through those areas, you will see how they impact. Most certainly, you will see, when we look at, for example, parliamentary sovereignty and rule of law, how there is some overlap with the separation of powers. In a nutshell, and to conclude, the idea is that there must be checks and balances as it relates to the three organs of the state, and the idea is, when you look at the executive, when you look at the parliament, when you look at the judiciary, there must be that there is separation to the extent that any one party can certainly scrutinize the other. There are limitations and therefore you must review what those overlaps are. That brings us to the conclusion of separation of powers.