Public law 1: separation of powers

What are the three dimensions of the separation of powers?

The legislative (makes legally binding ules which apply to people generally), the executive (foreign relations, military action, developing national policy) and the judiciary (applies law to resolve civil disputes and criminal trials).

In its institutional form the idea is that these 3 functions must be exercised by different institutions ie the legislative = parliament, executive = government (ministers/ civil servants) and the judicial function (courts)

In its personnel form, the separation stressed that a single person should not exercise more than one of the functions ie one which is a legislature should not be a judge or member of executive

How does the UK not fit with the personnel separation model?

Ministers (executive) are required to be members of the legislature (parliament)

Whats a main aim of the separation of powers?

It tries to ensure that there are checks and balances within the constitution so that power is not overly concentrated in one insititution.

What is the point of separating powers?

1) it may be thought of as a template for the design of a constitutional system ie it offers guidance on allocating legislative, executive and judicial functions

2) the separation of powers protects liberty ie if there is too much power in one institution theres a greater risk that this will be abused so need a system of checks and balances

3) if the various types of power are allocated sensibly to the right kind of institution, its more likely to be exercised efficiently

What is professor tomkins approach to the separation of powers

He takes issue with the traditional approach and puts forward a crown versus parliament thesis. His main objection is that the tripartite division does not reflect the historical development of the English consitution ie he claimed that the separation model was developed by Montequieu which was influential in planning the US consitution, but isnt fit for the uk

Why does Tomkins claim that historical events are important? - A. Tomkins, Public Law (2003, Oxford: OUP), pp. 46–7

He claims that in the civil war in 1641-51, it was fought between 2 (the crown and parliament). He argues that the separation of powers in England today does reflect is 17th century heritage.

What evidence does Tomkins provide to support his theory?

1) he cites parliamentary supremacy that acts of parliament represent when parliament and the crown come together and agree (A. Tomkins, Public Law (2003, Oxford: OUP)

2) there is a constitutional convention that ministers of the crown are accountable to parliament, so for this to happen ministers have to simultaneously be parliamentarians

3) Tomkins uses the case of M v Home office to show that the courts have found it hard to subject the crown and sovereign authority to the rule of law

What does Tomkins say about the courts? A. Tomkins, Public Law (2003, Oxford: OUP), p. 55

He claims that the judiciary gets its constitutional power from the crown so there is no independent source of judiciary authority, so its not fully separated from the crown

Academic controversy over the separation of powers: case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union[1995] 2 AC 513, 567

The issue was if a minister acted unlawfully when he decided not to exercise a power to bring into force provisions in an act of parliament for compensating victims of violent crime. The gov instead planned to put a new non-statutory scheme into place as it was cheaper. The majority held that the minister acted unlawfully by deciding that he would not bring into force a provision that had been passed by parliament. Lord mustill in the minority, he said it would be inappropriate for courts to intervene in the situations.

• he said that parliament on occasion have fallen short of what was needed to bring the performance of the executive into line with the law, so the court have sometimes have to take over, but this can be seen as dangerous as judges have not been appointed to administer the country.

Academic controversy over the separation of powers: A v Secretary of State for the Home Department[2004] UKHL 56

Here the issue was if the legal powers contained in the Anti-terrorism, crime and security act 2001 to detain foreign nationals suspected of terrorism, indefinitely without trial breached convention rights, was done in response to 9/11. They held that it was incompatible with convention rights.

lord Bingham said that the more purely political a question is, the more appropriate it will be for political resolution and the less likely it is a matter for judicial decision. He claimed that the question appeared to him on the political end of the spectrum

Academic controvery over the separation of powers: R (on the application of Cart) v Upper Tribunal; R (on the application of U and XC) v Special Immigration Appeals Commission[2011] UKSC 28

The question was if the legality of decisions of the special immigration appeals commission (SIAC) and the upper tribunal could be challenged in claims for judicial review. Both of these bodies were described as superior courts of record and it was contended that this status excempted them from judicial review challenges.

Lord phillips said it should be for the judges to decide if the statutory provisions for the administration of justice adequately protects the rule of law. But in exercising judicial review judges should recognise that even when administration of justice is at stake, resources are limited. Where statute provides a structure where a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted to ensure, in the interest of making best use of judicial resources, that it does not result in a duplication of judicial process that can’t be justified by the demands of the rule of law

Can members of parliament be judges?

Statutory rules state that MPs cannot be full time members of the judiciary and vice versa. But there is no prohibition on MPs holding part time judicial appointments.

Can judges participate in the legislative process?

Until 2009 senior judges who had been conferred with a peerage, were entitled to sit and vote in the House of lords legislative work. Eyebrows were raised when 2 law lords voted against proposals contained in the hunting bill. Because they expressed pro-hunting views in the passage of the bill, they were unable to be members in Jackson v Attorney general (to do with this issue). This is because it would have broken Art 6 (fair trial)

Up to 2009, Law Lord could also take part in political scrutiny work of the house of lords, but all these roles came to an end with the transfer to the supreme court

Judges occasionally appear before parliamentary committees to give evidence on bill and draft them, they also have a role in making delegated legislation about court proceedings

Can judges scrutinize parliamentary matters?House of Lords Constitution Committee, Parliamentary Standards Bill: Implications for Parliament and the Courts, Eighteenth Report, Session 2008–09 (HL 135)

A principle of great importance is parliamentary privilege - this underpins democracy and it is the rights and immunities which the 2 houses of parliament possess to enable them to carry out their function freely. The courts have so constitutionally respected the right of parliament to govern itself and has refused to be drawn into any disputes that may arise about parliament

What was the exception to the idea that judges won’t scrunitize parliamentary matters?

The major exception is contained in the ruling in the house of lords in Pepper (inspector of tax) v Hart [1993] AC 593. This is the case about the interpretation of a tax statute. This permits a judge to receive evidence in the form of extracts from Hansard (records parliamentary proceedings) where the minister responsible for the bill explains what a provision is intended to achieve, but this can only be done if the statutory provision the court is trying to interpret is ambigious and the ministers statement is clear. The house of lords claimed that using Hansard in this way doesn’t breach Art 9 of the bill of rights as the court wasn’t questioning what was said in parliament, but was seeking to give effect to the intention of parliament.

Case of Wilson v Secretary of State for Trade and Industry[2003] UKHL 4

The courts have trued to limit the circumstances in which Hansard may be referred to in legal proceedings. Ie in this case Lord Nicholls of Birkenhead said that the content of parliamentary debate has no direct relevance to the issues the court is called upon to decide in compatibility cases so these debates are not a proper matter of investigation by the courts,.

Can MPs discuss judges and judgements?

parliament try to steer away from undue interference with courts and judges. The sub judice rule requires that MPs should not seek to bring up in debates etc cases that are pending or being heard by the courts. The reason for this rule is that discussion of a case may have prejudicial effect and may prevent them from having a fair trial. “The effective working of the constitution depends on the courts being ever sensitive to the need to refrain from trespassing upon the province of Parliament or even appearing to do so, and on Parliament being similarly sensitive to the need to refrain from trespassing upon the province of the courts.” - Joint Committee on Parliamentary Privilege, First Report, Session 1998–99 (HL 43-I/HC 214-I)

What is the relationship between ministers and the government?

The statutory duties of ministers is to uphold the independence of the judiciary and the role of the Lord Chancellor (minister) is defending that independence. But ministers have occasionally been outspokenly critical of judgements and the judiciary as a whole

What is the role of the executive in Parliament?

In a system of parliamentary government, theres no separation between the legislature and the executive, actually ministers are required to be members of parliament. This arrangement enables Parliament to hold ministers to account on a regular basis but the danger is that those parliamentarians who are ministers will dominate the work of parliament.

What is the issue of the relationship between the executive and the legislature?

The issue is that the executive has dominant roles in making both primary and secondary legislation. Whereas some legislatures take the lead in developing policy and drafting legislation, the role of the UK parliament is mainly reactive ie scrutinise then approve proposals from the government. So theres few opportunities for the legislature who are not members of the government to initiate legislation ad see it through enactment ie few private member’s bills reach the statute book.

What are the legal constraints on the executive?

A cap is placed on the total number of MPs who can serve as ministers. Also a long list of holders of public office are disqualified from being MPs such as members of armed forces police officers etc.

What are the arrangements under the westminister model?

1) the government of the country is drawn from the House of Commons (not a presidential system)

2) the UK parlaiment is at the pinnacle of the constitutional system, with unlimited legislative competence ie no supreme court has the power to strike down acts of parliament

3) there are effective systems for ensuring ministers are politically accountable to parliament between elections

What is the idea of accountability under the westminister model? - A. Le Sueur, ‘Accountability’, in P. Cane and J. Conaghan (eds) The New Oxford Companion to Law (2008, Oxford: OUP), pp. 7–8

The idea of accountability is the principle which requires public authorities to explain their actions and be subject to scrutiny. Effective accountability depends on commitment to open government and rights to freedom of information. The ultimate form of accountability in democracy is through elections, so political accountability between elections is important. Courts may too be regarded as mechanisms for securing accountability as people may use judicial review procedures to challenge the lawfullness of action taken by public authorities ie especially when human rights are at stake.

What are the problems with the Westminster model?

1) The westminster model presents a picture of the government being held in check by parliament. The reality is that recently Parliament has been controlled by the government. Except for the use of private member’s bulls, the government has exclusive use of the legislative procedure to push through its legislation

2) the westminster model assumes a situation where there is strong collective decision making through the cabinet (committee of minister selected by the PM). But in the government under Margaret Thatcher etc its been interpreted as periods of prime ministerial government rather than collective cabinet. In other times the prime minister has had less power over its cabinet ie gordon brown

3) there has been an increase in legislation being made by delegated ministers rather than acts of parliament, so this reducing the amount of scruinising these are subjected to

4) the westminister model can no longer provide a satisfactory comprehensive account of the main features of the modern british constitutional set up ie due to the programme of decentralising executive and legislative powers to new institutions in Scotland, Wales and Northern Ireland as well as the leaving of the EU.

5) the traditional account of the westminster model doesn’t demonstrate the dramatic rise of powers of judges in the constitutional system. Ie judges in the ECtHR and Court of Justice of the EU have influence over the development of public law and the HRA and the European Communities Act require domestic courts to look at the law of these 2 European courts

6) A difficulty of the westminster model is the crisis of public confidence in UK parliament. Ie turnout of voters has decline and the idea of placing the UK parliament as the centre of the constitution is not as attractive as it was in the past.

What is the potential future for the westminster model - reinvigorating the westminster system?

Parliaments roles include sustaining the government and holding it to account. Recently there has been a series of reforms of the ways in which the work of the commons is organised to give them more opportunities to call government to account ie these include

• parallel chamber in westminster hall to allow more time for debates on issues raised by select committees

• topical debates on the floor of the commons to enable MPs to call ministers to account

• reforms to the legislative process ie by allowing committees of MPs to take expert evidence on bills being scrutinised

• the gov pushing some bills in draft form some months ahead of the legislative process to allow better scrutiny

• the constitutional reform and governance act 2010 = gives the UK parliament a more formal role in relation to scrutiny of treaty making

The future of the wesminster model - greater emphasis on popular participation?

This would encourage the general public to better engage in the process of governing the country.

Ie in 2007 one of the themes in the labour govs green paper governance of britain was to get people to participate in decision making ie citizens juries were formed to discuss issues such as children, crime, the NHS etc

The conservative led coalition gov of 2010-2015 also pursued policies aimed at empowering local communities to greater influence policy ie the localism act 2011 this conferred a greater power of competence ie no longer do local authorities have to point to a specific power in an act of parliament authorising them to take action

V. Bogdanor wanted to see a new style of participative democracy where people are able to make decisions for themselves as well as more effectively control decisions made by the government - V. Bogdanor, The New British Constitution (2009, Oxford: Hart Publishing) p 300. He also suggested a greater use of referendums. But direct democracy can have its problems as can reduce complex national policy decision making to simple choices which can result in serious public policy issues in the future - Ministry of Justice, A National Framework for Greater Citizen Engagement: A Discussion Paper (July 2008), p. 11

The future of the westminster model - a more legal constitution?

This would argue for a greater role for law, legal processes and the judiciary in the constitution. Ie this would build on developments such as the Human Rights Acts 1998

This process could mean replacing some constitutional conventions with laws so our constitutional arrangements are clearer and when needed legally enforceable - Sir Christopher Foster, British Government in Crisis (2005, Oxford: Hart Publishing), pp. 263, 274–5

Future of the westminster model - the disintegration of the UK?

Political parties exist in 3 smaller parts of the UK: Scotland, Wales and Northern Ireland. In the first decade of the 21st century, ministers from the separatist parties were members of the devolved parties were members of the devolved governments in all 3 parts of the UK . In 2014 a Scottish referendum posed the question of should Scotland be an independent country? - the vote was 55.3% voting against his, but some people argue that following Brexit the situation has changed making it legitimate to have a new referendum.