SQE 1 Separation of Powers - Public Law and Legal Systems

What does the concentration of all types of state power into the same hands lead to?

Inefficient government.

Constitutional theorists argue that, for an efficient constitution, the three branches of state (judiciary, executive & legislature) should be arranged into different bodies or persons.

This theory has deep roots in ancient political theory eg. Aristotle and Montesquieu (liberty best protected in a state when there was a separation of powers into judicial, executive and legislative branches - De l'esprit des lois).

Describe the separation of powers

Primarily an ideal - practice varies greatly eg. there is complete separation between Executive and Legislature in the US - the US constitution does not allow a simultaneous membership of the government and Congress, thereby establishing a form of 'checks and balances' between the two political wings of the state.

Describe the separation of powers in UK

Contentious topic - powers tend to be fused, product of the organic development of the UK constitution and the UK's attachment to the principle of parliamentary sovereignty.

Lack of design to the UK constitution means that there have historically been significant functional overlaps between all three bodies.

The fusion of powers & responsibilities between the three bodies of state in the UK means that an accommodation must be reached between them to establish a balance that can be seen as constitutionally appropriate & healthy.

There is not an equal balance of power, unlike the US, due to parliamentary sovereignty.

Does the UK have a constitutional court?

NO - UK courts do not have the power to quash primary legislation if this is deemed unconstitutional.

Unlike the US, the UK's Supreme Court is not a constitutional court in the sense of being able to review primary legislation for compliance with constitutional fundamentals

What was the ruling in McGonnell v UK

in this case, the trial judge also played a role in the Guernsey legislative assembly & and so was deemed in breach of article 6 for not being sufficiently independent

Section 3 of the Constitutional Reform Act

put the independence of the judiciary on a statutory footing:

1) The Lord Chancellor [..] must uphold the continued independence of the judiciary

2) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary

3) The Lord Chancellor must have regard to:

a) The need to defend that independence

b) The need for the judiciary to have the support necessary to enable them

to exercise their functions

S6 Constitutional Reform Act 2005

Provided for the setting up of an independent Judicial Appointments Commission, intended to enhance public confidence in the judiciary.

The Commission ensures greater conformity with the doctrine of the separation of powers. Independence of the Commission is ensured by 15 commissioners, comprising a mix of professional, lay and judicial members.

s63 Constitutional Reform Act 2005

Judicial appointments are solely to be based on merit & good character.

Act of Settlement 1701

Judicial security of tenure has been enshrined since the Act of Settlement 1701 - protects judges from political removal by the monarch/executive.

This principle has been re-enacted in s11 of the Senior Courts Act 1981 for judges in the Crown Court, High Court and Court of Appeal, and in s33 of the CRA for justices of the Supreme Court.

House of Commons Disqualification Act 1975

Excludes full-time judges from being MPs or members of Lords.

Article 6 ECHR

Open Justice - trials should be conducted in public.

Open justice principle is enshrined in Art 6 ECHR (the right to a fair trial).

What was the ruling in Shaw v Director of Public Prosecutions?

Facts:

Shaw wanted to publish a directory of prostitutes. He was advised by his lawyers that publication of the directory would not amount to a criminal offence. Nevertheless, a conviction of ‘conspiracy to corrupt public morals’ was ultimately upheld (even though there was no such statutory offence, and such a conviction was unprecedented).

Example of judicial activism -

House of Lords held that the courts had 'residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state'.

In this case, the issue was whether the court could effectively 'create' a new offence in its capacity as custos morum (keeper of morals) in the absence of specific legislation by Parliament.

The court's justification was that there was significant case law establishing that conduct calculated to corrupt public morals was an indictable misdemeanour.

The court was therefore simply applying existing principles of law to the facts.

Malone v Metropolitan Police Commissioner

Courts may choose deference - may defer to Parliament by resisting any call to develop the law in a particular area

Gillick v West Norfolk Health Authority

Key points:

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

- 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 the age of sixteen 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 competent 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.

R v R

Judicial activism in House of Lords case - cited as an example of 'judicial activism' because the law lords overturned the long-standing 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 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.

Airedale NHS Trust v Bland

Illustrated the difficulty of the courts in situations where the state of the law was not entirely clear or where legislation had not yet caught up with new societal or medical developments. It concerned the application of a family to lawfully withdraw medical treatment from Tony Bland, who had been left in a 'permanent vegetative state' following the Hillsborough disaster & 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 held that the issues involved (best interests of the patient and the distinction between actions & omissions in the law on homicide) could legitimately be adjudicated upon by the courts.

In this case the law lords emphasised the desirability of Parliament legislating on novel matters of policy - In this instance, the law lords were content that they were working from existing principles in relation to the distinction between acts and omissions.

However, the issue was a narrow one and it is evident that there is a tendency towards deference to Parliament on novel and contentious matters.

Burmah Oil Company (Burma Trading) Ltd v Lord Advocate

During World War II, British forces implemented a "scorched earth" policy in Burma to prevent Japanese access to oil installations. Burmah Oil Company owned the installations and sought compensation for their destruction from the British government. The case reached the House of Lords, where Burmah argued for compensation under eminent domain. The House of Lords ruled that the destruction was a lawful act of war and not a compensable taking of property.

Parliament has a constitutional safety mechanism to hand if it considers that the courts have exceeded their authority in making law.

Statutory law has a higher status than common law & so a legal principle established by the courts can be overridden by Parliament passing legislation - Parliament then passed the War Damage Act 1965, which exempted the Crown for paying compensation for property damage or destruction in war

Summary of above

> Courts will intervene (be active) on issues that are novel and agreed on across public 'i.e. staying with the times.

> The courts will not intervene on matters that are controversial and highly political i.e. matters of war.

M v Home Office

M was to be deported and new evidence arose. Judges wanted a review but the Home Secretary ignored the order. M was never heard from again.

Rule of Law was enforced - the Home Secretary is not above the law.

R (Evans) v Attorney General (2015)

Facts: Supreme Court. Freedom of Information Act tribunal held that letters written by the Prince of Wales should be released to the press. AG issued a certificate to overrule the decision. SC Quashed this 5 to 2

Principle:

Although statute can allow the executive to overrule the judiciary, the wording of the statute must be "crystal clear" in order to allow it.

Sumption criticises this decision to quash, saying it is the court intruding on policy issues with two ramifications: 1) loss of democratic legitimacy 2) judicial resolution of policy issues obstructs accommodating differences between citizens. He mentions Roe v Wade in the US as having caused massive division, whereas the UK's parliamentary act permitting abortion has been comparatively uncontroversial.

R v Secretary of State for the Home Department Ex p. Fire Brigades Union

By announcing that the agreed statutory provisions would not be implemented, the Home Secretary had acted unlawfully.

His decision to introduce a new scheme inconsistent with the statutory scheme represented an abuse of his prerogative power & a bypassing of the clear will of Parliament

R (Miller) v Prime Minister (2019)

Supreme Court found unanimously that the advice was given by the PM to the Queen in late August 2019 to prorogue Parliament was unlawful. It was found that the case was justiciable, as it related to the courts' ability to hold the executive to account.

Wakenshaw v Secretary of State for Justice (2018)

A prisoner was given permission to seek a declaration that the period of appointment and tenure provisions for Parole Board members failed the test of objective independence. It was not acceptable for the Secretary of State for Justice to pressurise the Board's chair to resign because he was dissatisfied with the chair's conduct; that breached the principle of judicial independence.

What are the main issues concerning the separation of powers

Institutional overlaps

The lack of design to the UK constitution has meant that there have historically been significant functional overlaps between all three bodies.

How far does this ‘fusion’ still impact on the efficiency of and balance to the constitution?

The judicial role?

Two main issues impact on the judiciary in particular:

What power does the judiciary have to scrutinise and control the actions of the executive?

To what extent, if at all, can the judiciary ‘make’ law?

The Executive

Executive functions broadly involve formulating or applying general policies to specific situations and making discretionary decisions.

Specific Components of Executive Functions:

Execution of Law and Policy: Implementing established laws and policies.

Maintenance of Public Order: Ensuring societal stability and safety.

Management of Crown Property: Handling government-owned assets.

Direction of Foreign Policy: Guiding the nation's interactions with other countries.

Conduct of Military Operations: Overseeing and managing military activities.

Provision, Regulation, Financing, or Supervision of Services: Involving areas such as education, public health, transport, and national insurance.

Is there a fusion of powers

Traditional personnel and functional overlap in UK state branches.

Legislature selects and contains the political side of the executive.

SMPs are also members of parliament. Parliament through the enactment of primacy legislation, confers powers on the government.

Legislative functions of the executive ?

Can create secondary legislation - also called subordinate, or delegated – legislation takes the form of rules, orders and regulations, largely created as statutory instruments (SIs)

Statutory Instruments

These contain the Secretary of State’s further rules on the specific area identified in the ‘parent’ Act of Parliament.

Henry VIII clauses

Some Acts grant the executive authority to modify or revoke provisions through secondary legislation. The EU Withdrawal Act 2018 allows ministers to use 'Henry VIII powers' to swiftly amend both primary and secondary legislation using statutory instruments, enabling faster implementation with reduced parliamentary scrutiny.

Parliamentary control over subordinate legislation

No scrutiny

Some delegated powers receive no parliamentary scrutiny. For example, an order to close a major road while it is being developed.

Negative instruments

These can become law without a debate or vote in Parliament. They can be opposed and, in theory, rejected but not amended by Parliament.

Affirmative instruments

The most important delegations of power are subject to affirmative resolution. They cannot come into effect until both houses have approved a draft SI in a vote.

Parliamentary committees

Parliamentary Committee Roles:

Scrutinizing Statutory Instruments:

Crucial role in examining statutory instruments.

Scrutiny even if not presented before the House.

Ensuring Legislative Compliance:

Verify delegated legislation aligns with originating Act.

Focus on legality, not government policy merits.

House of Lords Committees:

Delegated Powers and Regulatory Reform Committee:

Examines powers sought in primary legislation.

Precedes parliamentary debate on primary legislation.

Merits of Statutory Instruments

Committee:

Reviews secondary legislation resulting from delegated powers.

Joint Committee:

Joint Committee on Statutory Instruments:

Ensures compliance of each Statutory Instrument with parent Act.

What are judicial functions of the executive

Home Secretary's Judicial Role:

Home Secretary set tariff sentences, particularly for indefinite imprisonment since 1933.

The judicial power of the Home Secretary to set sentencing in these situations was removed in 2000 and is now the responsibility of the trial judge in accordance with the principle of separation of powers.

How have overlaps between the executive and the judiciary been reduced

Tribunals, Courts and Enforcement Act 2007:

Tribunals integrated into the court system.

Introduction of the Upper Tribunal for supervision.

Addressing Overlaps:

Act aimed at reducing clear-cut overlaps between executive and judicial functio

Constitutional Reform Act 2005:

These were at least partially inspired by the reforming effect of article 6 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Article 6 requires courts and tribunals to be impartial and independent from the executive.

What is the role of AG

The Attorney General sits in Cabinet as the chief legal adviser to the government. He or she also has a role in deciding whether to bring a prosecution in individual cases.

The Attorney General continues to sit in Cabinet and to advise on legal matters, and the potential for political influence on governmental legal advice remains...

What is the role of Lord Chancellor

The Lord Chancellor is the government minister with responsibility for the administration of justice including the administration of the court system.

Constitutional Reform Act 2005: Retained as an executive Cabinet post.

A separate judiciary and independent judiciary

> The judiciary is substantially insulated from political influence

> Must be independent

Constitutional Reform Act 2005

> Established Supreme Court as a separate institution from Parliament

> Lord Chancellor no longer makes judicial appointments - Act provided for the setting-up of an independent Judicial Appointments Commission, intended to improve the quality of the administration of justice and enhance public confidence in the judiciary

> Judicial appointments are solely to be based on merit and good character.

> Judges hold office ‘during good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament. Paid a salary by the Ministry of Justice, the amount of which is determined by an independent pay review body.

Political independence of judges

Full-time judges are disqualified from sitting in the House of Commons under the House of Commons Disqualification Act 1975.

Parliamentary rules provide that Members of the Cabinet and MPs should not criticise the character or motivation of judges, although this convention is not always respected.

Courts also lack jurisdiction to inquire into proceedings in Parliament.

What type of immunity do judges enjoy

Judges are immune from legal proceedings for actions that would otherwise be tortious (for example defamation), as long as the action is done in a judicial capacity in a court of justice. - A judge would not be immune when commenting to the media.

Immunity of magistrates is less than that of other judicial office holders, as magistrates may be liable for acts outside their jurisdiction (eg imposing a sentence that they do not have power to impose), if it is proved that they acted in bad faith.

What is open justice

Trials should be conducted in public, given the importance of justice being seen to be done.

Cases should only be heard ‘in camera’ if a hearing in an open court would defeat the ends of justice or if it is necessary to protect the vulnerable.

What hearing are permitted in private

Under Civil Procedure Rule 39.2:

If publicity would defeat the object of the hearing. This ground is commonly used in applications for a freezing injunction or a search order.

If it involves matters relating to national security (evidence may also be withheld, under the ‘closed material procedure’).

If it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.

If a private hearing is necessary to protect the interests of any child.

Do judges make law

Yes, kinda of, Common Law

But mainly interprets Parliament’s intentions in making legislation and develops the common law (legal principles not found in legislation).

Deference

The effective 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.

How have Judges modernise the law

R v R [1992] 1 AC 599 - overturned an apparent, long-standing common law principle that, by virtue of marriage, a woman consents to sexual intercourse with her husband.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.

The purpose of judicial review

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‘ - ie rendered a nullity - by the Administrative Court

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