The Judiciary

When it comes to the judiciary, separation of powers is apparently taken quite seriously, although in England this is obscured by the fact that the upper House of the legislature has the same name as the highest court, and its Speaker (the Lord Chancellor) is the senior judge. In many systems, judges are independent and irremovable. In Russia this is expressly stated, but is a frail novelty. In the USA and UK it is not stated but is the case.

The only topic which merits brief discussion here is the relation between the constitution, the courts, and the legislature. The USA is virtually alone in allowing any court of general jurisdiction to decide matters of constitutionality. Normally such questions are for a Supreme Court or special Constitutional court. The French innovation allows bills to be referred only after they have passed through Parliament and before they are promulgated by the President. In England a court can examine the validity of a duly enacted statute unless it conflicts with the law of the European Community; the same may be true of Scottish courts, although some say they could examine UK statutes for conformity with the Act of Union 1707. Since October 2nd 2000, when the UK Human Rights Act took effect, English courts are able to declare a statute incompatible with the rights enshrined in the Act. This does not invalidate or render the statute ineffective: it is then up to the executive and ultimately the legislature to decide what to do about the offending legislation.

Emergency powers

The greater the constitutional commitment to a Bill of Rights, the more difficult it is to frame emergency powers. On the one hand the executive must be permitted to take emergency action; on the other the emergency power should not be capable of being used to subvert both the legislature and the Bill of Rights. The usual safeguard is to forbid the executive to use emergency powers to suspend, or curtail the power of, either of the other branches of government. Whether such provisions are effective in any given country is a matter of politics, not law. In the UK a permanent statute permits the government to proclaim a state of emergency, but regulations are subject to Parliamentary scrutiny. Special powers to deal with threats to security in Northern Ireland have been on the statute book for most of the twentieth century. The statutes restrict freedom of association and confer wide powers of arrest without warrant and, in Northern Ireland, limit the use of release on bail and jury trial. They are subject to annual renewal by Parliament.

Human Rights

The older pattern of constitutional protection of human rights is usually expressed by a negative: Congress shall make no law abridging the freedom of the press; the right to keep and bear arms shall not be infringed; the right to be secure shall not be violated; no person shall be deprived of life, liberty, or property without due process of law. This century has seen the addition of positive claims on the state - to education, employment and so on - and entitlements against discrimination on the grounds of gender, religion, nationality and the like. Such provisions are often declared to be entrenched and to bind legislature, executive and judiciary. To what extent these Bills of Rights are effective is more a matter of political power, than of legal technicality.