Understand the constitutional role of Separation of Powers (SOP).
Identify categories and forms of SOP.
Explain relevant institutions.
Appreciate and articulate the relationships between the institutions and how these relationships affect SOP.
Thread of Constitution
Separation of powers, together with the rule of law and parliamentary sovereignty, runs like a thread throughout the constitution of the UK (Hilaire Barnett).
The Nature of the Doctrine
Aristotle (The Politics, 384-322 BC):
Identified three elements: the deliberative, the officials, and the judicial.
FW Maitland (1850-1906) (Reign of Edward the 1st):
Described Parliament as consisting of three estates of the realm, the King’s Council, and the well-known courts of law.
Bolingbroke (Remarks on the History of England, 1678-1751):
Argued that the safety of the whole depends on the balance of the parts.
Remarks on the History of England:
Division of powers and different privileges constitute and maintain government.
Confusion of powers tends to destroy the government.
In a constitution, the safety of the whole depends on the balance of the parts (1748, pp 80-83).
Montesquieu (De L’esprit des Lois):
Stressed the importance of the independence of the judiciary.
When legislative and executive power are united, there can be no liberty.
There is no liberty if the power of judging is not separated from the legislative and the executive.
Constitutional Role of Separation of Powers
Diffusion rather than concentration of powers between the Legislature, Executive, and Judiciary.
None should have excessive power.
A system of checks and balances should exist between the institutions.
Directly concerned with constitutionalism, legitimacy, and accountability.
Appropriate allocation of powers.
Limits the possession of particular powers to particular institutions.
Avoids abuse of power because absolute power corrupts absolutely.
Provides a mechanism by which constitutional conflicts can be avoided.
Fundamental to the rule of law because it underpins the independence of the judiciary.
Forms of Separation of Powers
The range of possibilities:
No separation of powers
Pure separation of powers
Weak separation of powers
Prof Wade’s definition:
No person should form part of more than one of the three organs.
No one organ should exercise the functions of either of the other two.
One organ should not interfere with or control the functions of the other two organs.
‘Checks and balances’
Duport Steel Ltd v Sirs [1980] 1 WLR 142, Lord Diplock:
The British Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, and the judiciary interprets them.
R v HM Treasury ex parte Smedley [1985] QB 657, Sir John Donaldson:
It is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature.
M v Home Office [1994] 1 AC 377:
Injunctive relief could be granted in an action against a minister personally.
The Institutions
The Executive:
Formulates policy and is responsible for its execution.
King
Prime Minister
Cabinet Ministers
Formulates government policies.
Plans business of the House.
Coordinates policies between different departments.
Civil Service
The Legislature:
The law-making body.
House of Commons
House of Lords
King in Parliament
The Judiciary:
Adjudicates conflicts.
The Relationship Between the Executive and the Judiciary in the British Constitution
Appointments of:
Lord Chief Justice
Master of Rolls
President of the Family Court
Vice Chancellor
Lord Justices of Appeal
Pre-2005 Act
Lord Chancellor --- PM --- Queen / King
Post 2005 Act
Judicial Appointments Commission --- Lord Chancellor --- Queen / King
Justices of the Supreme Court
Supreme Court Selection Committee – further consultation by the Lord Chancellor – PM – King / Queen.
Lord Chief Justice assumes the Lord Chancellor’s former functions.
Tenure
Act of Settlement 1700 secured a senior judge’s tenure of office during ‘good behaviour’.
In relation to the Supreme Court, the Constitutional Reform Act 2005, S 33 provides:
‘A judge of the Supreme Court holds that office during good behaviour but may be removed from it on the address of both Houses of Parliament’.
Judges can be removed by compulsory retirement if they are incapacitated or unable to resign through incapacity.
Retirement age – 70 (Judicial Pensions and Retirement Act 1993) – may be extended to 75.
Office for Judicial Complaints – investigates and reports complaints.
Salaries
Under a consolidated Fund.
Disqualifications
Barred from legal practice (Courts and Legal Services Act 1990, s. 75 and Sched. 11).
May not hold paid appointment as director / undertake any professional / business work.
Barred from the House of Commons (House of Commons Disqualification Act 1975, s. 1 and Sched. 1).
Immunity from suits
Sirros v. Moore [1975] – every judge is protected from liability in respect of his judicial functions provided that he honestly believed that the action taken was within his jurisdiction.
Bias – No man should be the judge in his own cause – nemo judex in causa sua
Dr. Bonham’s Case [1610]: Lord Coke held that members of a board which determined physician’s fines could not both impose and receive the fines.
Dimes v. Grand Junction Canal Proprietors (1852): No one can suppose that Lord Cottenham could be in the remotest degree influenced by the interest… The Lord Chancellor, a judge who held shares in the Grand Junction Canal company, was found to be biased due to his financial interest in the outcome of the case. Established that any pecuniary interest of a judge in a case necessitates recusal, even if the judge believes they can remain impartial.
Pinochet’s Case: Pinochet’s lawyers complained that Lord Hoffman was a director of Amnesty International Charity Trust and applied for the House of Lords decision to be set aside (decision to not accept that Pinochet had immunity from prosecution as a former head of state).
Helow v Secretary of State for the Home Department (2004): The appellant had applied for, but been refused, asylum in the United Kingdom. She was a Palestinian who had been actively involved with the Palestinian Liberation Organisation. One of the judges hearing her appeal was a member of the International Association of Jewish Lawyers and Jurists. The House of Lords ruled that there was no bias because the Association had not been party to the proceedings (unlike Amnesty in Pinochet) and there was no basis on which the observer would conclude that there was a reasonable possibility that the judge was biased.
The Royal Prerogative
Courts to rule on the existence and scope of prerogative (CCSU v. Minister of State for Civil Service (1985))
Held that courts have jurisdiction to review the exercise of prerogative power.
There are however a wide range of non-justiciable matters.
Law Officers of the Crown
Attorney General and Solicitor General are members of the government.
AG bound by conventions.
AG played the role as Chief Legal Adviser and Chief Prosecutor.
Proposition that was not taken up- Role of Chief Legal Adviser undertaken by a Counsel to the Government.
Judicial Review
Check on the actions of the Executive.
R v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]
R v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd [1995]
Concerned with the process upon which the decision is made, not with the merits of the decision itself.
A paradox of sorts between SOP on one side and Parliamentary Sovereignty and Rule of Law on the other.
R v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]: Michael Howard was admonished for ignoring the will of Parliament by introducing a criminal injuries compensation scheme which was radically different from that authorized by Parliament.
R v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd [1995]: Douglas Hurd was censured for authorizing 234 mil pounds in aid for the Pergau Dam project in Malaysia.
The Relationship Between the Legislature & the Judiciary in the British Constitution
No criticism of judges, other than under a motion expressing specific criticism or leading to an address to the Crown for the removal of a judge.
The sub judice rule
Civil proceedings before the court or awaiting trial – MPs barred from raising them at debates.
Not yet reach court – Speaker decides.
Criminal proceedings – No reference from time of charge until final appeal.
No criticism of Parliamentary procedure.
R(HS2 Action Alliance Ltd) v Secretary of State for Transport and Others (2013): Scrutiny of the workings of Parliament and whether they satisfy externally imposed criteria clearly involves questioning and potentially impeaching Parliament’s internal proceedings, and would go a considerable step further than any UK court has ever gone.
Parliamentary supremacy v. Judicial functions
Sovereign Parliament can overturn a court decision (Burmah Oil v. Lord Advocate (1965))
Judiciary gives effect to the latest will of Parliament.
Parliament may ‘tacitly’ approve a decision.
Parliament may expressly endorse a judicial decision (R v. R (1992): redefinition of marital rape).
Statutory interpretation
Meant to limit judicial creativity.
Fiction of ‘declaratory theory’ abandoned.
Every new meaning and application to a new circumstance creates law.
As long as there is no ‘naked usurpation of legislative function’ as Lord Denning was accused of in Magor and St Mellons Rural District Council v. Newport Corporation (1952).
What can be looked at???
Government publications.
Records of Parliamentary proceedings.
Davis v. Johnson (1978) – Lord Denning privately looked at Hansard.
Renton Committee’s Report on the Preparation of Legislation 1975 and the Law Commission’s Report on the Interpretation of Statutes – both ruled reference was of doubtful benefit, difficult in practice and costly.
Black-Clawson International Ltd v. Papierwerke AG (1975)
Reference could be made to establish the defect in the previous law which parliament was seeking to redress.
Pepper v. Hart (1992) – Limited resort to Hansards
Lord Browne Wilkinson “court will be giving effect to what was said in Parliament”
Declarations of Incompatibility
High Court of Parliament
The Relationship Between the Legislature and the Executive in the British Constitution
Ministers of the Crown must be members of either House of Parliament
Bagehot: The close relationship between executive and parliament represents ‘the efficient secret of the English Constitution’ which: ‘…may be described as the close union, the nearly complete fusion, of the executive and legislative powers…’
Lord Hailsham: calls it an ‘elective dictatorship’ – a situation in which the executive controls the legislature
The constitutional principle that applies to this relationship – ‘responsible government’
Statutory limits on membership
The House of Commons Disqualification Act 1975:
Preserves the separation between the executive and legislature by providing that certain categories of people are disqualified from holding parliamentary office. Under section 2, holders of judicial office, civil servants, members of the armed forces and the police and members of foreign legislatures are debarred from office.
Limits the number of government ministers in the House of Commons to 95 (section 2)
Political and Procedural checks on government
Votes of no confidence
The Opposition
Questions
Challenges
Opposes
Alternate policies
Solutions
Question time, debates, select committees
House of Lords
Electorate
Executive and Legislature
The contentious area
Delegated Legislation
Laws made by government.
Under the authority of an Act of Parliament.
Needed for efficiency.
Fills in details after the parent act is in force – thus approved by A V Dicey.
Insufficient scrutiny and control.
Parliament cannot be looking at the 3,000 over statutory instruments made per year
Contemporary Issues
Declarations of Incompatibility
Starrs v. Ruxton (1999) – Security of tenure for judges important in upholding separation of powers
Devolution of Powers
Judges as fact finders
Chairmen of Tribunals of Inquiry
Egs: Arms to Iraq, BSE in cattle
Charges of political bias / effecting of a ‘whitewash’
Inquiries Act 2005
Conclusion
Geoffrey Marshall: … the principle is infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds.
Lord Diplock: … it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the separation of powers: parliament makes the laws, the judiciary interprets them.