A curiosity about the separation of powers

One development over the summer months raises a curiosity about the separation of powers.

Suppose the Government loses a case. The Government is convinced that the judge has made an error and has misunderstood or misapplied the law. Naturally, the Government appeals. While the appeal is pending, however, the Government decides that the point of law at issue in the litigation is so important, or so pressing, that we really cannot wait for an appeal. Instead, emergency legislation is needed to reverse the court’s judgment.

Would such a course of action be constitionally appropriate, or would it violate (or bring into question) the separation of powers between adjudication on the one hand and legislation on the other?

This is no hypothetical. It happened in May-July 2011. In May 2011 the High Court made a decision concerning the maximum period of pre-charge detention under the Police and Criminal Evidence Act 1984, s 41 (“PACE”). The Court interpreted s 41 of PACE in a wholly novel way, reversing the effect of 25 years of policing practice. There was an appeal, which was sent directly to the Supreme Court (bypassing the Court of Appeal). The appeal was set to be heard on 25 July. Meanwhile, the Government introduced the Police (Detention and Bail) Bill, which it proposed to fast-track through both Houses of Parliament before the summer recess. The Bill would have the sole effect of reversing the High Court’s judgment, and of returning the interpretation of s 41 of PACE to that which had been accepted before the High Court’s decision.

The Bill was duly passed and it came immediately into force, whereupon the appeal to the Supreme Court was withdrawn (the point having become moot).

The House of Lords Constitution Committee published a short report on the Bill, raising the question of whether it was appropriate in the light of the separation of powers for the Government to invite Parliament to legislate in these circumstances. The Government saw no constitutional objection, and defended itself by saying that parliamentary sovereignty meant that Parliament could make or unmake any law whatsoever, including one that was designed to reverse the effect of a lower court ruling that was itself on appeal to the Supreme Court.

What do you think? A violation of the separation of powers, or a vindication of the sovereignty of Parliament? If the Government is correct, does this mean that it never needs to appeal a first-instance decision that goes against it, because it can simply invite Parliament to legislate to reverse the court’s ruling? Surely not: yet what would be the means of stopping a Government behaving like this if it chose to do so?

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A curiosity about the separation of powers