Separation of Powers – Comprehensive Study Notes

Learning Outcomes

  • Clarify what students must achieve:
    • Appreciate the nature and historical roots of the doctrine of Separation of Powers (SOP).
    • Understand the constitutional role of SOP within the UK framework.
    • Distinguish between categories / forms of SOP (none, pure, weak).
    • Identify & explain the relevant institutions (Legislature, Executive, Judiciary).
    • Analyse relationships among the institutions and how those dynamics affect SOP.

Foundational Quotation

  • Hilaire Barnett:
    • “Separation of powers, together with the rule of law and parliamentary sovereignty, runs like a thread throughout the constitution of the UK.”
    • Highlights the interdependence of three core doctrines in UK constitutionalism.

Historical Development of the Doctrine

  • Aristotle – “The Politics” (384-322 BC):
    • Distinguished deliberative, officials (executive), and judicial elements.
  • FW Maitland (1850-1906):
    • Edward I’s era: Parliament of three estates, King’s Council, courts of law.
  • Henry St John, Viscount Bolingbroke (1678-1751) – “Remarks on the History of England”:
    • Balance of powers vital; confusion of powers tends to destroy government.
    • Quote (1748, pp 80-83): safety of the whole depends on the balance of the parts.
  • Montesquieu – “De l’esprit des lois” (1748):
    • Liberty impossible if legislative + executive united or if judiciary not separate.
    • Stressed independence of judiciary as core guarantee of liberty.

Constitutional Role of Separation of Powers

  • Core idea: diffusion—not concentration—of power.
    • Legislature = law-making.
    • Executive = policy formulation & implementation.
    • Judiciary = adjudication.
  • System of checks & balances prevents excessive power.
  • Directly tied to constitutionalism, legitimacy & accountability:
    • Proper allocation avoids abuse ("absolute power corrupts absolutely").
    • Mechanism for avoiding constitutional conflict.
    • Underpins rule of law by ensuring judicial independence.

Forms of Separation of Powers

  • Professor Wade’s analytical model:
    1. \text{No person simultaneously in more than one organ}.
    2. \text{No organ exercises the functions of the other two}.
    3. \text{No organ interferes with the others’ functions}.
  • Spectrum of possibilities:
    • No separation (fusion of powers).
    • Pure separation (strict adherence to Wade’s 3 rules).
    • Weak / partial separation (UK reality).
  • “Checks and balances” cases:
    • Duport Steel Ltd v Sirs (1980) 1 WLR 142 – Lord Diplock: British constitution firmly based on SOP; Parliament makes laws, judiciary interprets.
    • R v HM Treasury, ex parte Smedley (1985) QB 657 – Sir John Donaldson: convention of highest importance that legislature & judicature are separate.
    • M v Home Office (1994) 1 AC 377 – injunctive relief possible against a minister personally, exemplifying judicial check on executive.

Institutional Architecture

  • Executive:
    • King/Queen (ceremonial head), Prime Minister, Cabinet, Civil Service.
    • Core functions: formulate policy, plan legislative business, inter-departmental coordination.
  • Legislature:
    • House of Commons, House of Lords, King-in-Parliament.
    • Primary law-making body.
  • Judiciary:
    • Court hierarchy culminating in the Supreme Court.
    • Function: adjudicate disputes & interpret law.

Executive ↔ Judiciary Relationship

  • Judicial Appointments:
    • Pre-Constitutional Reform Act (CRA) 2005: Lord Chancellor → PM → Monarch.
    • Post-CRA 2005: Judicial Appointments Commission → Lord Chancellor → Monarch.
    • Supreme Court: Selection Commission → Lord Chancellor (consults) → PM → Monarch.
  • Office-holding guarantees:
    • Act of Settlement 1700 – tenure “during good behaviour”.
    • CRA 2005 s 33 – Supreme Court judges removable only on address of both Houses.
    • Retirement: default age 70 (Judicial Pensions & Retirement Act 1993) extendable to 75.
    • Office for Judicial Complaints handles discipline.
  • Financial & professional safeguards:
    • Salaries charged on Consolidated Fund (protects from executive pressure).
    • Disqualifications: barred from legal practice (Courts & Legal Services Act 1990 s 75 & Sched 11), from paid directorships, and from Commons membership (House of Commons Disqualification Act 1975).
  • Immunity:
    • Sirros v Moore (1975): judges immune for judicial acts done in good-faith belief within jurisdiction.
  • Bias & Recusal Principles (nemo judex in causa sua):
    • Dr Bonham’s Case (1610) – early assertion against self-interest.
    • Dimes v Grand Junction Canal (1852) – pecuniary interest mandates recusal.
    • Pinochet (No 2) (1999) – decision set aside due to Lord Hoffmann’s undisclosed Amnesty International link.
    • Helow v SSHD (2008) – membership in Jewish lawyers’ association not enough for bias; fair-minded observer test.

Executive Prerogative & Law Officers

  • Royal prerogative justiciability:
    • CCSU v Minister for Civil Service (1985) – courts can review prerogative use; non-justiciable areas remain (e.g.
      foreign affairs, honours).
  • Law Officers:
    • Attorney-General (AG) & Solicitor-General are government members; bound by conventions.
    • Dual role: Chief Legal Adviser + Chief Prosecutor.
    • Proposed (but rejected) split: separate Counsel to Government for advisory role.

Judicial Review as a Check on the Executive

  • Purpose: examine legality, procedural fairness, rationality – not merits.
  • Key cases:
    • R v Home Sec ex parte Fire Brigades Union (1995): Home Secretary acted unlawfully implementing alternative compensation scheme; executive cannot ignore Parliament’s will.
    • R v Foreign Sec ex parte World Development Movement (Pergau Dam) (1995): £234 m aid unlawful; misuse of discretionary power.
  • Illustrates tension between SOP and doctrines of Parliamentary Sovereignty & Rule of Law.

Legislature ↔ Judiciary Relationship

  • Mutual non-interference conventions:
    • MPs avoid direct criticism of judges except via formal removal motion.
    • Sub judice rule: ongoing civil or criminal cases generally not debated.
    • Speaker’s discretion where proceedings not yet begun.
  • Parliamentary procedure shielded:
    • R (HS2 Action Alliance) v Secretary of State for Transport (2013): courts reluctant to scrutinise Parliament’s internal affairs; would extend beyond historical limits.
  • Parliamentary supremacy over judicial decisions:
    • Parliament may overturn (Burmah Oil v Lord Advocate 1965 – War Damage Act reversed compensation).
    • May tacitly or expressly endorse court rulings (e.g.
      R v R 1992 – acceptance of marital rape redefinition).

Statutory Interpretation & Use of Parliamentary Material

  • From declaratory fiction to creative but limited construction.
  • Lord Denning criticised for “naked usurpation” (Magor & St Mellons v Newport Corp 1952).
  • What sources may courts consult?
    • Government white papers & reports.
    • Parliamentary debates (Hansard) historically excluded.
    • Davis v Johnson (1978) – Denning used Hansard privately; controversial.
    • Black-Clawson (1975): allowed reference to establish mischief/defect.
    • Pepper v Hart (1992): limited Hansard use where legislation ambiguous/absurd & ministerial statement clear.
  • Reform commissions (Renton 1975; Law Commission Interpretation of Statutes) found Hansard use expensive & uncertain but court practice evolved regardless.
  • Human Rights Act 1998 s 4: courts may issue Declarations of Incompatibility (DOI) with European Convention – leaves final word to Parliament, reinforcing SOP.

Legislature ↔ Executive Relationship

  • Fusion through responsible government:
    • Ministers must sit in Commons or Lords.
    • Bagehot: fusion is “efficient secret” of UK Constitution.
    • Lord Hailsham: warns of “elective dictatorship” where executive dominates legislature via majority.
  • Statutory constraints:
    • House of Commons Disqualification Act 1975:
    • Disqualifies civil servants, judges, armed forces, police, foreign legislators.
    • Caps number of ministers in Commons at 95.
  • Political & procedural checks:
    • Votes of no confidence.
    • Opposition questioning, debates, select committees.
    • House of Lords scrutiny.
    • Electorate at general elections.

Delegated (Secondary) Legislation

  • Made by government under authority of primary Act.
  • Advantages: efficiency, technical detail, flexibility (supported by A.V. Dicey).
  • Concerns:
    • \approx 3,000 statutory instruments yearly; Parliament cannot scrutinise all.
    • Potential for executive law-making creep; limited parliamentary control (affirmative/negative resolution procedures).

Contemporary Issues

  • Declarations of Incompatibility:
    • Starrs v Ruxton (1999): emphasised judicial security of tenure in Scots sheriff courts; invoked Art 6 ECHR impartial tribunal.
  • Devolution of powers complicates SOP allocations.
  • Judges as fact-finders in Public Inquiries:
    • Examples: Arms-to-Iraq, BSE (Mad Cow Disease).
    • Criticisms: political bias / “whitewash”.
    • Inquiries Act 2005 sets statutory framework; still raises separation questions.

Critical Reflections & Conclusion

  • Geoffrey Marshall: SOP principle “infected with imprecision” – a “jumbled portmanteau” used to support or oppose policies on other grounds.
  • Lord Diplock reiterates strength: “cannot be too strongly emphasised” that UK Constitution is “firmly based” on SOP – Parliament makes, judiciary interprets.
  • Take-away: UK exhibits a weak / partial separation balanced by conventions, statutes, and political practice rather than a codified, rigid model.

Comparative Glimpse – Position in the United States

  • Visual references: Washington State Legislature, California Legislature, Israeli Knesset.
  • Implied contrast:
    • US Constitution embodies a pureer separation: fixed term legislature & executive, presidential veto, independent judiciary (with written Constitution & entrenched Bill of Rights).
    • UK relies on unwritten conventions, parliamentary supremacy, & fused executive-legislative personnel (responsible government).
    • Result: US has strong judicial review over legislation, UK courts subordinate to Parliament except under special statutes (e.g.
      HRA 1998).