The Separation of Powers - Lecture 7

R (on the application of Miller); Cherry and others (Respondent) v The Prime Minister (Miller I) on Separation of Powers

Context → This case concerned a legal challenge to the advice of the then Prime Minister, Boris Johnson, to Queen Elizabeth II to prorogue (ie shut down) Parliament for a longer than normal period of time in the run-up to the Brexit deadline.

Issue → The concern was that the government was using the device of prorogation in order silence Parliament and evade parliamentary scrutiny.

Outcome → The court concluded the prorogation of Parliament by the Prime Minister was, in the circumstances, unlawful.The government had not provided any justification for shutting down Parliament for far longer than normal

Secretary of State for the Home Department, ex p Fire Brigades Union on Separation of Powers

Context → The Home Secretary had refused to exercise his power under s 171(1) of the Criminal Justice Act 1988 to bring into force a new scheme for compensating victims of crime. The Home Secretary had also indicated that he had no intention of bringing the statutory scheme into force.

Issue → whether, under the separation of powers, it was appropriate for a government Minister to be allowed to repeal an Act of Parliament and whether it was appropriate for the court to intervene.

Outcome → The House of Lords held that the Home Secretary had exceeded his powers, by reference to the separation of powers doctrine.

Montesquieu’s commentary on Separation of Powers

“When the legislative and executive powers are united in the same person […] there can be no liberty”

Jennings’ commentary on Separation of Powers

“It is democracy and not merely the separation of powers that keeps Britain free”

James Madison’s commentary on Separation of Powers

“legislative, executive, and judiciary, in the same hands […] the definition of tyranny”

Bogdanor’s commentary on Seperation of Powers

• The old constitution was based upon the sovereignty of Parliament.

• The new constitution is based on separation of powers

Lord Steyn in R(Anderson) v SSHD on separation of powers

“The relationship between the legislature and executive is close.”

Eric Barendt on the two distinct types of separation of power

There were two theories -

1. Pure Theory → ‘rigid insistence that each function of government is discharged by a separate institution.’

2. Partial Theory → “Its primary purpose […] is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power. The allocation of functions between three, or perhaps more, branches of government is only a means to achieve that end.”

Eric Barendt’s commentary on the impact of separation of powers

• given teeth by constitutional courts to reinforce the protection conferred by the constitution on individual rights

• prevent one branch of government from accumulating excessive powers

Bagehot on Separation of Powers

‘complete fusion of the Executive and legislative powers’

• Bagehot would disagree that the UK has a separation of powers, and that the exective and legislative overlap, with the executive exerting a powerful influence on the work of Parliament

Cane on Separation of Powers

Cane has noted, ‘a realistic assessment will lead us to the conclusion that all three branches of government effectively perform all three functions’

Barber on Separation of Power

Barber goes as far as to suggest that the traditional ‘tripartite vision of the state’ or ‘three great monoliths’ is a distraction and irrelevant

M v Home Office on separation of powers

Context → M was a citizen of DRC who arrived in the UK seeking asylum. He was in the process of applying for judicial review on fresh grounds, after failing previously. Secretary of State had arranged to deport him, despite Court ordering an injunction to suspend the deportation.

Issue → Whether the Home Secretary could be subject to an injunction? (it was previously thought that the Court did not have jurisdiction to do this)

Outcome → injunctions can be granted against Crown officials acting in their official capacity

Webb’s commentary on M v Home Office

It is a fundamental principle of the constitution that all subjects of the Crown are equal before the law, including ministers.

Not only would this undermine the rule of law

it would also place the executive above Parliament.