workshop 6 - separation of powers

What is the theory behind the separation of powers?

• concentration of all types of state power into same hands can corrupt/be inefficient

• judiciary, executive and legislature should be separated into different bodies or persons

• Montesquieu: ‘any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution’

‘Separation of powers’ is often cited as a theory or an ideal, what country is most associated with this ideal?

USA

Does the UK conform to any model of separation of powers?

• the degree to which the UK conforms to any model of separation of powers is a controversial question, due to the organic development of the UK’s constitution and due to the UK’s continued attachment to the principle of parliamentary sovereignty

• UK courts do not have power to invalidate primary legislation if deemed ‘unconstitutional’

In the UK is there an overlap between the different branches of state?

• in UK, considerable degree of overlap in terms of personnel and functions between the different branches of the state due to the UK constitution being parliamentary rather than presidential

• in a parliamentary system, the legislature selects and contains the political part of the executive branch, thus parliamentary systems are often seen as a fusion of powers rather than a separation of powers

• in the UK, many commentators have warned of the potential dangers of such fusion, particularly given the general tendency for governing parties to enjoy large parliamentary majorities in the ‘First Past the Post system’

Do roles in government overlap?

• political roles in gov (i.e. at Ministerial level) and in Parliament do overlap

• the relationship between the executive and the legislature can be described as a system of ‘checks and balances’

• senior gov ministers are, by convention, also members of parliament

• parliament, through the enactment of primary legislation, confers powers on the government

What are the legislative functions of the executive?

1. Create secondary legislation, as long as it has the authority to do so from primary legislation (in the shape of a ‘parent’ act of Parliament)

• secondary legislation (or subordinated/delegated) legislation takes the form of rules, orders and regulations, largely created as statutory instruments

• Acts of parliament/primary legislation: has provisions which give the executive (the relevant secretary of state) powers to make secondary legislation in specific areas

• statutory instrument: contains the Secretary of State’s further rules on the specific area identified in the ‘Parent’ act of parliament

What are Henry VIII clauses?

• some acts contain clauses, allowing the executive to amend or repeal provisions in an Act of Parliament using secondary legislation

• particularly significant in the context of Brexit - 2018 EU Withdrawal Act provides that laws and regulations made over 45 years, while the UK was a member of the EU, will continue to apply now that the UK has left the EU

• therefore, the Act gives ministers ‘Henry VIII powers’ to make changes to both primary and secondary legislation using statutory instruments

What are the three 'levels of delegation’ which determine the level of scrutiny given to delegated legislation?

1. No scrutiny (no parliamentary scrutiny)

2. Negative instruments (can become law without a debate or

3. Affirmative instruments

What does ‘ultra vires’ and ‘intra vires’ mean?

-’vires’ means ‘power’

-if an action/legal provision is ‘intra vires’ it means it is done within the given power and is therefore lawful

-if an action or provision is ‘ultra vires’ it is done outside the given power and thus unlawful

-every delegated or subordinate power must be exercised ‘intra vires’

What do parliamentary committees ensure?

-crucial role in scrutinising statutory instruments

-ensure that the delegated legislation is within the power or ‘intra vires’ delegated in the organising ‘parent’ Act

What are the judicial functions of the executive?

-certain aspects of the judicial role can be exercised by members of the executive, most notably in the past by the Home Secretary - this power derived from both statutory and prerogative sources

-e.g. Home Secretary had responsibility for setting the tariff sentence for those convicted to be imprisoned ‘during Her Majesty’s pleasure’ - seen in James Bulger case

-this judicial power of the Home Secretary to set sentencing removed in 2000 and now responsibility of the trial judge

How has there been a reduction in overlap recently?

-until recently, the executive also had the power to decide some legal disputes through a network of tribunals that were funded and administered by the same gov departments against whose decisions they heard appeals

-following the Tribunals, Courts and Enforcement Act 2007, tribunals are now administered as part of the court system with new supervisory body ‘upper tribunal’ - a further ironing-out of some of the overlaps between the executive and judicial functions in the UK

Who is the gov minister with responsibility for the administration of justice/court system?

-the Lord Chancellor

-under the Constitutional Reform Act 2005, the role was reorganised to remove overlaps with the office’s legislative and judicial functions

-After CRA 2005, Lord Chancellor ceased to be speaker or president of HOL and ceased to be head of Judiciary

-official powers of judicial appointment were transferred to the Judicial Appointments Commission

-office of Lord Chancellor has been retained as an executive Cabinet post and renamed ‘Ministry of Justice’ with the position of the Lord Chancellor being ‘Lord Chancellor and Secretary of State for Justice’

Who is the chief legal adviser to the gov?

-the Attorney General

-sits in the Cabinet

Is there a strict separation of powers for the judicary like there is between the exective and legislature in the UK constitution?

-no strict separation of powers between executive and legislature in UK constitution, but different for judiciary

-judiciary substantially protected from political influence

Is the judiary independent in the UK?

-judiciary must be independent for it to be free from political influence

-section 3 of the Constitutional Reform Act 2005 puts this constitutional principle on a statutory footing

What is the Constitutional Reform Act 2005?

-for centuries - HOL=highest court in UK

-fact that highest appeal committee was part of legislature example of overlap in separation of powers model in UK

-following CRA 2005, UK Supreme Court established as a separate institution from Parliament

How are judges appointed?

-appointments of judges prior to CRA made by Lord Chancellor,

-CRA 2005 set up an independent Judicial Appointments Commission which base appointments solely on merit and good character

What is judicial pay and tenure like?

-judicial security of tenure enjoyed since Act of Settlement 1701, important to protect judges from politically motivated dismissal by monarchy/executive

-judges may only be dismissed by monarch following an address presented by both Houses of Parliament

-judges salary determined by independent pay review body (helps prevent judges being bribed)

-judicial officers of other courts such as magistrates, coroners etc enjoy less security and their independence is protected by convention rather than by law

Do judges have to be politically indpenedent?

-full-time judges disqualified from sitting in HOC - HOC Disqualification Act 1975

-parliamentary rules provide that MPs and cabinet members should not criticise character/motivation of judges - convention so not always followed

-courts lack jurisdiction to inquire into proceedings in Parliament - ‘parliamentary privilege’ enshrined in article 9 of Bill of Rights 1689

Are judges immune from civil actions?

-yes

-judges immune from legal proceedings for actions that would otherwise be tortious (e.g. defamation)

-e.g. if a judge makes a harsh statement about someone during a trial that would normally be considered defamatory, they cannot be sued for defamation because it was said in the course of judicial proceedings.

-a judge would not be immune when commenting to the media

-extent of immunity of magistrates less than other judicial officed holders

What does the concept of ‘open justice’ mean?

-trials should be conducted in public, or ‘in camera’ if hearing in an open court is not necessary

-Article 6 of the ECHR says:

1. principle purpose of open justice is to enable public scrutiny; and

2. enable the public to understand how the justice system works and why decisions are taken

Why are some hearings permitted to be conducted in private?

-some hearings permitted to be conducted in private:

1. if publicity would defeat the object of the hearing

2.matters relating to national security

3.confidential info

4.if necessary to protect interests of any child

What is the constiutional context behind law-making?

-parliament makes the laws and the judiciary interpret them

-law in the UK derives from both statute and common law - law developed by the courts over a period of time, based on established, core principles

-reality is that the judiciary has built up a body of legal principles - judges have therefore made law

Do all three organs of the state in the UK have a role to play in making laws?

-Yes

1. The executive - (government) proposes primary legislation to be considered by Parliament and drafts secondary legislation

2. The legislature - (parliament) can propose primary legislation of its own (via Private Members’ bills) and it decided whether executive proposals become law

3. The judiciary - interprets Parliament’s intentions in making legislation and develops the common law (legal principles not found in legislation)

Do judges ‘make’ law?

-the courts are instrumental in the implementation of the law through the interpretation of statute - ‘constitutional responsibility of the judiciary’ - sometimes the courts are accused of excessive ‘judicial activism’ (making the law in inappropriate areas)

What occurred in ‘Shaw v Director of Public Prosecutions (1962)? 

• Facts: Shaw sought to publish a directory of prostitutes. Despite legal advice that this was not a criminal offence, he was convicted of conspiracy to corrupt public morals—a charge with no statutory basis and unprecedented in English law.

• Issue: Could the courts effectively "create" a new offence in their role as custos morum (keeper of morals), even though Parliament had long legislated on public morality?

• Decision: The House of Lords upheld the conviction, affirming that courts have a residual power to protect the moral welfare of the state, alongside safety and order.

• Reasoning: The court argued it was not inventing new law but applying established common law principles. Past case law recognised that conduct corrupting public morals (beyond individual morality) was indictable. Thus, absence of statute did not prevent liability where common law principles applied.

👉 Key Point: The case illustrates judicial willingness to uphold convictions based on broad common law principles of morality, even without explicit statutory authority—highlighting the courts’ claimed residual role in safeguarding public morals

What is the opposite of activism?

-opposite of 'activism' is 'deference'. This represents a more cautious attitude on the part of the courts who may choose to defer to Parliament by resisting any call to develop the law in a particular area.

-In Malone v Metropolitan Police Commissioner [1979] Ch 344 Malone was charged with handling stolen property. The prosecution admitted that there had been prior interception of his telephone conversations. Malone sought declarations against the Metropolitan Police Commissioner ('MPC') to the effect that the police conduct was unlawful.

The Court found for the MPC and held, in summary:

• There was no prohibition on the interception of telephone calls in English law.

• There was no right to privacy in English law. (The European Convention on Human Rights was at that time not directly enforceable in English law).

• "No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right." (per Sir Robert Megarry, VC).

What does the case of Gillick v West Norfolk Health Authority [1986] AC 112 illustrate about judicial law-making?

1. Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.

2. A feature of common law is that it develops with the changing political and cultural climate.

-The court was asked to rule on the question of whether children under 16 could lawfully be given contraception, without the knowledge of their parents.

-The House of Lords decided that in some circumstances they could, if the minor was sufficiently mature to be able to consent to medical treatment, (referred to since as 'Gillick competence').

-There was no prior authority on the point. It was suggested that this was due to that fact that in previous eras, it would have been self-evident that parental authority was required, and the question would not have arisen.

-Lord Denning's view, in another case, that "the common law can, and should, keep pace with the times", was cited with approval.

-Lord Scarman warned against judges 'failing to keep the law abreast of the society in which they live and work'

What other case can a similar approach to that taken in Gillick be seen?

-in a further House of Lords case: R v R [1992] 1 AC 599. This is sometimes cited as an example of 'judicial activism' because the law lords overturned an apparent, archaic common law principle that, by virtue of marriage, a woman consents to sexual intercourse with her husband. R’s case was that he could not accordingly be convicted of the offence of 'marital rape'.

-The judgment contained a comprehensive review of the authorities on the marital exception to the crime of rape and considered whether a change of the apparent common law position was appropriate, in the absence of legislation by Parliament.

The court considered that it was appropriate:

-"_It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment." (per Lord Lane CJ)

-The court went on to conclude that the wording of the relevant enactment could be interpreted in such a way as to overturn the existing, archaic common law principle.

What did the case of Airedale NHS Trust v Bland [1993] AC 789 illustrate?

-The quandary faced by the courts in situations where the state of the law is not entirely clear or where legislation has not yet caught up with new societal or medical developments was well illustrated by the case of Airedale NHS Trust v Bland [1993] AC 789.

-It concerned the application by the family of a young man, Tony Bland, who had suffered serious injury in the 1989 Hillsborough football stadium disaster and had been left in a 'permanent vegetative state’.

-The family applied for a declaration that his medical team could lawfully withdraw treatment and so let him die, given his prognosis showed no hope of recovery. The declaration was granted by the court at first instance and confirmed by the Court of Appeal.

-The Official Solicitor's appeal to the House of Lords was eventually dismissed, as it was considered that the issues involved – namely the best interests of the patient and the established distinction between actions and omissions in the law on homicide – could legitimately be adjudicated upon by the courts.

-It is notable in this case that the law lords emphasised the desirability of Parliament legislating on novel matters of policy, given continuing significant technological advances in the medical field:

-"Where a case raises wholly new moral and social issues, in my judgement it is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges' moral stance when society as a whole is substantially divided on the relevant moral issues.” (per Lord Browne-Wilkinson).

-In this instance the law lords appeared content that they were working from existing principles in relation to the distinction between acts and omissions. They were ‘allowing nature to take its course’ rather than condoning a positive act allowing life to be brought to an end. But the issue was a narrow one and one can see a tendency here towards deference to Parliament on novel and contentious matters.

-“The function of the court in these circumstances is to determine this particular case in accordance with the existing law, and not seek to develop new law laying down a new regimen". (per Lord Browne-Wilkinson).

Is it possible to give a definitive conclusion on whether the judiciary over-step an appropriate constitutional line when it comes to making or developing the law?

-It is difficult to give a definitive conclusion on whether the judiciary over-step an appropriate constitutional line when it comes to making or developing the law. This is controversial politically and within the legal community

-English courts clearly have an important role to play in developing the law, given the common law tradition, but it is fair to say that the courts are conscious of their place in the constitutional hierarchy and so wary of encroaching on parliamentary territory.

-The impression one can take from some of the above cases is that the courts will not feel it right to develop law when there are insufficient existing common law threads to build principles from. They will also be wary of doing so when the matters before them are novel and contentious, especially if they involve matters that are seen as political or ethical in nature.

-In such situations the courts will generally defer to Parliament, as the elected sovereign body, and therefore the appropriate forum for the debate and resolution of such matters.

-Opinions very much differ about whether the courts strike the right balance but, even if they do not always do so, the political wings of the constitution have a fall-back position.

Does parliament (and gov within parliament) have a form of constitutional safety mechanism potentially to hand if it considers that the courts have exceeded their authority in making law?

-yes

-Statutory law has a higher status than common law and so a legal principle established by the courts can be over-ridden by Parliament passing legislation. Parliament, in the words of Professor A.V. Dicey, can 'make or unmake any law whatever'.

-The classical example of this legislative override came in the case of Burmah Oil Company (Burma Trading) Ltd. v Lord Advocate [1965] AC 75.

-Oil fields in Burma had been destroyed by British forces during the Second World War. The law lords decided that compensation should be paid to Burmah Oil, on the basis that the destruction was equivalent to an act of requisitioning in wartime, for which compensation should be payable.

-Following this judgment, however, Parliament passed the War Damage Act 1965, which exempted the Crown from paying compensation for property damage or destruction in war.

What is the constitutional context behind judicial scrutiny of the executive?

-We have seen how the absence of clear delineation in the responsibilities of the three bodies of state in the UK has caused tension between them. This has been most acute in the modern period in terms of the relationship between the judiciary and executive.

As we will see in separate materials, the constitutional principle of the rule of law, of which the judiciary are the acknowledged guardians, has arguably become more pronounced in recent times.

Yet, the judiciary is not elected and does not share an equal place in the constitutional hierarchy to Parliament, and so it is incumbent on judges to defer where appropriate.

The dynamics at work are complicated by the position of the executive which, although not sovereign, is drawn from the sovereign Parliament and, in political terms, is more powerful in most situations (other than when the government does not have a majority).

The degree to which the judiciary can control what the various arms of government do in practice is therefore finely balanced.

Do judges in the UK have power to scrutinise proceedings in Parliament, or, most importantly, to 'review' primary legislation (Acts of Parliament)?

NO

What is the partial exception to judges in the UK having power to scrutinise proceedings in Parliament?

· If an Act of Parliament is incompatible with the European Convention on Human Rights, the Court may make a declaration to that effect pursuant to s. 4 of the Human Rights Act 1998 – but note that the courts cannot invalidate it

In contrast, secondary legislation, (i.e. legislation made in the exercise of powers conferred by or under an Act of Parliament), can normally be challenged – and potentially invalidated or ‘quashed’ – in the courts. The legal mechanism for doing so is judicial review (which is carried out by the Administrative Court, a specialist court within the Queen’s Bench Division of the High Court of Justice.)

The context in which judicial review normally arises is when the actions and decisions of executive bodies are challenged by interested parties

How does the judiciary exercise a check on the executive?

Over the last half century, the judiciary has played an increasing role in exercising a check on the executive through the use of judicial review. The purpose of judicial review is twofold:

· To prevent abuse of power by the executive

· To uphold individual rights or interests

If the executive, or any public body exercising a public function, reaches a decision which is wrong in law, the decision may be 'quashed' - i.e. rendered a nullity - by the Administrative Court. The detail of judicial review procedure, and the various remedies, in addition to quashing orders, are the subject of separate materials.

The fundamental point to understand at this stage is that judicial review examines the legality of a decision (i.e. whether it was made within the powers granted to the decision-making body, following the correct procedure and on a correct interpretation of the law), and not its merits. The merits of a decision are a matter for the executive (or other public body). This approach is intended to respect the doctrine of the separation of powers.

What situations have one of the most clear-cut areas of the case law relating to the relationship between the judiciary and executive?

One of the most clear-cut areas of the case law relating to the relationship between the judiciary and executive has come about in situations where the executive appears to have ignored or over-ridden court orders or decisions. This is viewed by the judiciary, particularly in less deferential modern times, as a form of disrespect for their constitutional role.

What is an example case showcasing situations where the executive appears to have ignored or over-ridden court orders or decisions?

In the case of M v Home Office [1994] 1 A.C. 377 a judicial order was made in the High Court stopping the removal of M from the UK. He was an asylum seeker from Zaire whose application was initially rejected but who had produced new evidence which had not yet been assessed. The Home Secretary ignored the order and M was deported.

The case is notable for the subsequent Court of Appeal finding that an order such at this (in the form of an interim injunction) could legitimately be made against the Crown and that the Home Secretary had been in contempt of court for ignoring it.

This reversed the previous position that an injunction could not be made against the Crown. It also symbolised the important rule of law principle that the Crown, in the form of a government minister, is just as much subject to the law as ordinary citizens are. A a legal order could not be disregarded; only a higher court could overturn it.

What is a more recent case where we can see an extension of the court’s approach in M v Home Office?

R (Evans) v Attorney General [2015] UKSC 21. This case began with a request by a journalist, Rob Evans, under the Freedom of Information Act 2000 (FOIA) for copies of Prince Charles' correspondence lobbying various government agencies. (These were known as the 'black spider memos' on account of his handwriting).

The government departments refused to disclose the letters on the ground that they considered them exempt from disclosure under the FOIA. However, a court of law, the Upper Tribunal, determined after extensive deliberation that many of the letters, referred to as 'advocacy correspondence', should be disclosed.

The Attorney General subsequently issued a certificate, under section 53(2) of the FOIA, effectively overriding the Upper Tribunal's judicial decision. Evans sought judicial review of the Attorney General's decision to issue the section 53 certificate. The case reached the Supreme Court, which found against the Attorney General.

The Supreme Court considered that the Attorney General's conduct had "contradicted the fundamental principle that a court's decision could not be ignored or set aside by anyone, including the executive, and that the executive's actions were reviewable by the court".

Give an example of a case where in some situations, the rationale for the court holding the executive legally to account is that it is protecting and upholding the sovereignty of Parliament in the face of executive encroachment.

This was the setting for the judgment of the Court of Appeal in R v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513.

The Home Secretary announced his intention not to bring into force a statutory compensation scheme for criminal injuries, which had been approved by Parliament, but instead to introduce a new 'radically different' tariff scheme, using his prerogative power. (This is a form of pure executive power, not legitimated by Parliament.)

By announcing that the agreed statutory provisions would not be implemented, the Home Secretary had acted unlawfully. His decision to introduce a new scheme, which was inconsistent with the statutory scheme, when the statutory provisions remained unrepealed, represented an abuse of his prerogative power and a bypassing of the clear will of Parliament.

What recent two very high-profile defeats for the government have heightened tensions between executive and judiciary?

Tension between executive and judiciary has been heightened in recent years by two very high-profile defeats for the government in relation to cases associated with – but not about – the process of ‘Brexit’, both initiated by Gina Miller (alongside other challengers.)

The case involving Article 50 – R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 – will be considered in other materials on prerogative power. More recently, in R (Miller) v Prime Minister/Cherry v Advocate General [2019] UKSC 41 the Supreme Court found unanimously that the advice given by the Prime Minister to the Queen in late August 2019 to prorogue Parliament was unlawful.

It was found firstly that the case was justiciable, as it related to the courts’ historic ability to hold the executive to account for its actions. The effect of the PM’s advice to prorogue would have meant that, for a highly significant period of around 5 weeks in the lead-up to the planned exit from the EU at the end of October 2019, Parliament would have been unable to meet either in session or in any committees. This was a far longer period of prorogation than normal and ‘no justification for taking action with such an extreme effect’ had been put before the court.

What is the significance of Miller 2?

In her summary of the case, Lady Hale, as UKSC President stated that the prorogation would have had:

“the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.”

The prorogation order was therefore declared void.

It is notable here how the UKSC saw its role as providing a constitutional safeguard to protect Parliament, the sovereign body, against an executive over-reaching its authority (and its use of prerogative power).

In ex p FBU the Home Secretary had been seen as bypassing the will of Parliament. In Miller 2, disregard of constitutional norms by the executive was, in the courts’ eyes more acute still, as the effect of its proposals was to prevent Parliament from carrying out its proper ‘constitutional functions’ at such a significant moment.

What is one of the key functions of the judiciary?

to ensure that executive decisions are lawfully arrived at.

Where does tension arise in particular?

When the courts have to decide on challenges involving matters that are at the more political or ‘high policy’ end of the spectrum – in other words the area of competence of the executive rather than the judiciary.

it is important to distinguish between cases where the courts have to address challenges on the basic legality of governmental actions and those where the challenges are based on the reasonableness or rationality of what government does.

In the former instance, it is constitutionally orthodox for the courts to be able to intervene – they are effectively deciding if the executive had the authority to do what it did. In the latter type of cases, the balance is much more finely set, and the courts will apply a more deferential approach accordingly. This relates to the idea of variable intensity of review, that will be encountered in more detail in later materials.

What did the GCHQ case/Council of Civil Service Unions v Minister for the Civil Service [1985] showcase?

Since 1947, staff employed at the GCHQ communications centre had been permitted to join trade unions. In December 1983 the Prime Minister, with no prior consultation, altered the conditions of service, forbidding membership.

In Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 the applicants sought judicial review on the ground of unfairness due to failure to consult. As will be seen in later materials, the law lords established, very significantly, that the courts have the power to review how the executive uses its prerogative powers.

Notably, however, they concluded that in this case requirements of national security outweighed those of fairness, recognising that this was a matter for the executive to weigh up and decide upon.

This illustrates how the courts exercise self-restraint by not interfering in matters of government policy relating to national security. The separation of powers balance also confers responsibility for matters of social and economic policy primarily upon the legislature and the executive, rather than the judiciary.