Chapter 4: Separation of Powers A. Historical Development 1. The Politics, Aristotle proclaimed that: “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if there are well arranged, the constitution is bound to well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; the third, the judicial element. 2. FW Maitland traces the separation of powers in England to the reign of Edward I (1272-1307): ” In Edward’s day all become definite- there is Parliament of the 3 estates, there is the King Council, there are well known courts of law”
3. Bolingbroke observed that: ” Since this division of power, and these different privileges constitute and maintain our government, it follows that the confusion of them tends to destroy it. This proposition is therefore true; that, in a constitution like ours, the safety of the whole depends on the balance of the parts. 4. Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary in De l’Esprit des Lois(1748): “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.
If it were joined to the executive power, the judge might behave with the violence and oppression. There would be an end of everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes. ” ? Montesquieu observations in the English constitutions were inaccurate at the time, representing more a description of an idealized state than reality. ? There has been exhibited a tension between the doctrine of separation of powers and the need for balanced government. An arrangement depending more on checks and balance within the system (as emphasized by Bolingbroke) than on a formalistic separation of powers. ? Sir Ivor Jennings has interpreted Montesquieu’s words to mean not that the legislature and executive should have no influence over the other, but rather that neither should exercise the power of the other. ? Sir William Blackstone, a disciple (pupil) of Montesquieu: “partial separation of powers is required to achieve a mixed and balanced constitutional structure. ” B. The Contemporary Doctrine Separation of powers is isolation from each other would be unworkable, particularly under a constitution dominated by the sovereignty of Parliament. ? 3 possibilities of arrangement of Separation of Powers: o No Separation of Powers ? absolute power residing in one person or body exercising executive, legislative and judiciary. o
Pure Separation of Powers ? power being diffused between 3 separate bodies exercising separate functions with no overlaps in function or personnel o Complete Separation of Powers (United Kingdom current form of constitution) ? owers and personnel being largely-but not totally-separated with checks and balance in the system to prevent abuse: mixed government and weak separation of powers. C. Defining the Institutions 1. The Executive ? Define as that branch of the state which formulates policy and is responsible for its execution. 2. The Legislature ? The Queen in Parliament is the sovereign law making body within the U. K. ? Parliament comprises:- o The Queen o House of Lords o House of Commons ? All Bills must be passed by each House and receive royal assent. ? Purpose of Parliament each exercising a legislative role, although no equal powers o each playing a part in ensuring the accountability of the government. ? Parliament is bicameral (2 chambers):- o House of Lords ? memberships is not secured by election ? memberships is accordingly not accountable in any direct sense to the electorate. o House of Commons ? memberships is directly elected ? Under Parliament Act 1911 o Parliamentary term is limited to a maximum of 5 years. ? Under Fixed-term Parliaments Act 2011 o each future Parliament(with limit exceptions) will last for 5 years. The House is made of majority party o The political party secures the highest number of seats at the election, which will form government. o The head of the political party will be invited by The Queen to take office as Prime Minister. In turn, it is for the prime minister to select his or her Cabinet.
3. The Judiciary ? Defined as branch of state which adjudicates upon conflicts between state institutions, between state and individual, and between individuals. ? This is independent of both Parliament and the executive. ? Blackstone observed in his Commentaries: “… n this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and from the executive power. ” ? Several aspects of the judicial function which reveal an overlap between the judiciary, Parliament and the executive 1) Appointment ? Under Supreme Court Act 1981, s10(1),(2):- title are appointed by the Queen~ o The Lord Chief Justice Master of the Rolls o President of the Family Divisions o Vice Chancellor o Lord Justice of Appeal o Justices of the Supreme Court ? For appointment for the High Court, the candidate must be:- o barrister of ten years’ standing; or o a solicitor with rights of audience in the High Court; or o circuit judge of two years’ standing. ? For appointment for the Court of Appeal, the candidate must either be:- o barrister of ten years’ standing; or o a solicitor with the rights if audience in the High Court; or o a current member of the High Court Bench. The Lord Chief Justice is the head of Judiciary. ?
The person that may make representations to Parliament on matters relating to the judiciary or the administration of justice. o The Lord Chief Justice of England and Wales. o The Lord Chief Justice of Northern Ireland. o The Lord President of the Court of Session in Scotland. ? The socio-economic and educational background of the judiciary has been subjected to much research. ? The criteria for selection of Judges are:- o ability o experience o standing o integrity o physical health. It had long been argued that the appointment of judges should be made by an independent Judicial Appointment Commission rather than (as prior to the Constitutional Reform Act 2005) on the recommendation of Lord Chancellor alone. ? The Constitutional Act 2005 established a Judicial Appointments Commission which has responsibility for the recruitment and selection of judges for the courts in England and Wales. 2) Tenure ? The Act of Settlement 1700 secured a senior (Justices of Supreme Court, Lords Justice of Appeal, Justices of the High Court) judge’s tenure of office during ‘good behavior’. Supreme Court Act 1981 provides that a person appointed shall hold office during good behavior, removable only by Her Majesty on an Address presented to her by both Houses of Parliament. ?
Senior Judges cannot be dismissed by political reasons but can be removed by compulsory retirement if they are incapacitated or unable to resign through incapacity. ? Judges can be dismissed for misbehavior (“Misbehavior” refers to the performance of a judge’s official duties or the commission of a criminal offence. ), and under an Address to the Crown made by the two House of Parliament. Theoretically, a judge can also be removed by ‘impeachment’ for ‘high crimes and misdemeanors’, although this procedure has not been used since 1805 and is thought to be obsolete. o Example: In1830, Sir Jonah Barrington was removed from the office in Ireland under the Address procedure for the embezzlement of monies paid into court. ? In Scotland, judges can only be removed on the grounds of misconduct. o Claim of Right 1689, Article 13; Mackay and Esslemont v Lord Advocate(1937) ? The Judicial Pensions and Retirement Act 1993 introduced the retirement age of 70, which may be extended to 75 if in public interest. From 1959, the retirement ages were set at 75 for a High Court judge and 72 for a circuit judges, although judges appointed before this date were permitted to remain office. o Example: Lord Denning retired at age of 83. 3) Salaries ? Under Supreme Court Act 1981, s12(5):- o In order further to protect the judiciary from political debate, judicial salaries are charged on the Consolidated Fund. ? Judicial salaries are relatively high to ensure an adequate supply of candidates of sufficient calibre for appointment to judicial office. )
Disqualifications ? Under Courts and Legal Services Act 1990, s75 and Sched 11:- o Holders of full time judicial appointments are barred from legal practice. ? Judges may not hold paid appointments as directors or undertake any professional or businesses work. ? Under House of Commons Disqualification Act 1975, Sched 11:- o Judges are disqualified from the membership of the House of Commons. ? Memberships of the House of Commons does not, however, disqualify that person from appointment to the Bench. ) Immunity from suit ? All judges have immunity from legal action in performance of their judicial functions. A judge is immune from the law of defamation and even if ‘ actuated by envy, hatred and malice and all uncharitableness’, he is protected. ? In Sirros v Moore (1975):- o Lord Denning MR and Ormrod LJ ruled that every judge-irrespective of rank and including the lay magistracy- is protected from liability in respect of his judicial function provided that he honestly believed that the action taken was within his jurisdiction. The Crown Proceeding Act 1947, s2(5) also provides protection for the Crown from liability for conduct of any person discharging ‘ responsibilities of a judicial nature vested in him’ or in executing the judicial process. 6) Bias or personal interest ? A judge is under a duty not to adjudicate on cases in which he has either an interest- whether personal or financial or he may influenced by bias. ? A fundamental doctrine of natural justice is that:- o Latin: “nemo iudex in sua causa”
Translation: “no man should be judge in his own cause” D. The Office Lord Chancellor ? History o The office of Lord Chancellor derives from the Norman Conquest when the King’s secretary became known as the royal ‘chancellor’. o The first chancellor is recorded in 1068. o In the Middle Ages, the primary role of the Chancellor was to preside over Parliament. o From the fourteenth century, his functions have been both parliamentary and judicial, in the latter role presiding over the Court of Chancery until 1875. ? Position The Lord Chancellor was a politically appointed member of Cabinet; and o The speaker of the House of Lords; and o Head of the judiciary. ? Powers o As a senior judge, the Lord Chancellor was entitled to participate in judicial proceeding, although by convention he would not adjudicate cases which involved the government or were overtly political in nature. o As head of judiciary, with wide-ranging powers relating to the appointment of judges, the Lord Chancellor acted as the spokesperson for the judges and defended their independence from interference by the executive. ? Criticism The office of Lord Chancellor represented a major breach in the separation of powers and could not withstand the allegation that the office raised doubts about the independence of the judiciary due to close relationships between executive and Lord Chancellor. ? Reform o Prior to the Constitutional Reform Act 2005, the office of Lord Chancellor spanned all 3 institutions of the state- executive, legislature and judiciary. o
Constitutional Reform Act 2005 establishes a clearer separation of powers. o The office of Lord Chancellor is retained in name but the powers of the office are radically curtailed. Lord Chancellor will not exercise any judicial functions nor will he sit as Speaker of House of Lord. o CRA 2005,s1 makes explicit reference to the rule of law, stating that the Act does not adversely affect that principle or the Lord Chancellor’s existing role in protecting the rule of law. o CRA 2005,s3 imposes a statutory duty on the Lord Chancellor and other ministers of the Crown and those with responsibility for matters relating to the judiciary to uphold the continued independence of the judiciary. ? Further reform in 2007 o The government divided the Home Office into 2 departments to create a Ministry of Justice. The Ministry assumed the responsibility formerly undertaken by the Department of Constitutional Affairs, and is responsible for the Courts Service, the Judicial Appointments Commission, the Tribunal Service and Legal Aid. E. The Relationship between Executive and Legislature; Legislature and Judiciary; Executive and Judiciary 1) Executive and Legislature. ?
The personnel of government o Parliament provides the personnel of government. o Ministers of the Crown, including the Prime Minister, must be members of either House of Parliament. However, by convention, the Prime Minister must be a members of either House of Commons. Example: Lord Home renounced his peerage in 1963, under the Peerage Act of that year, to revert to being Sir Alec Douglas-Home, Leader of the Conservative Party and subsequently Prime Minister. ? It is thus, immediately apparent that the executive, far from being separated from the legislature, is drawn from within its ranks. o In Lord Home example, this became the reasons why Walter Bagehot in The English Constitution denounced the theory of separation of powers by following statement, which to Bagehot, the close relationship between executive and Parliament represented ‘the efficient secret of the English Constitution’:- ? … may be described as the close union, the nearly complete fusion, of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our constitution lies in the entire separation of the legislative and executive authorities, but the truth its merit consists in their singular approximation. The connection link between the executive and parliament is the Cabinet. ” o However, opposing views. Lord Hailsham, the Lord Chancellor in the 1979-87 Parliament, asserted that:- ? he current electoral process which, generally, but not invariably, returns a government with a large majority of seats in Parliament, contributes to what he termed an ‘elective dictatorship’- that is to say, a situation in which the executive controls the legislature. o The powers of government are scrutinized adequately by a democratically elected Parliament to whom every member of government is individually and collectively responsible. ?
Statutory limits on membership o There exist statutory limits on the extent to which the executive can dominate Parliament. 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. o The House of Commons Disqualification Act 1975, s2:- ? holders of judicial office, civil servants, members of the armed forces and the police and members of foreign legislatures are debarred from office. ? It also limits the number of government ministers in the House of Commons to 95. Despite The House of Commons Disqualification Act 1975,s2, limitations:- ? 95 ministers, when considered together with their loyal Parliamentary Private Services (who are elected members of Parliament), ensures that the government will generally enjoy the automatic support of some 120 Members of Parliament. ?
Political and procedural checks on government o The government, it must be recognized, irrespective of the size of its majority of seats in Parliament, is dependent upon Parliament for its continuance in office. The loss of a vote of confidence on a matter of policy central to a government’s programme will cause the government to fall. ? Example: In 1979, when the Labour Prime Minister, Mr James Callaghan, was forced to seek a dissolution of Parliament and call a general election. o Parliamentary procedures are devised to secure adequate scrutiny for legislative proposals, and it cannot merely be assumed that the government will always get its legislation though in the form which it envisaged. Example: In 1983-84, the Police and Criminal Evidence Bill was substantially amended following pressure from politicians of all parties, pressure groups, academics and lawyers. ? Example: In 1986, the government-despite having strong majority in Parliament- was forced to abandon its plan for legislation to deregulate Sunday trading due to parliamentary pressure. ? The Opposition o Her Majesty’s Loyal Opposition is, constitutionally speaking, a ‘government in waiting’. Not only is it the function of the Opposition to question, challenge and oppose the government, but it also puts forward alternative policies and solutions to problems. o In order to ensure that there is adequate opportunity for the Opposition to fulfill its constitutional role, 20 days per session are set aside for debate on subjects chosen by the Opposition. ?
Question Time, debates and select committees o Question Time and debates in Parliament to ensure the accountability of government to Parliament. The administration of the state is scrutinized by a system of select committees in Parliament with wide powers of inquiry. ? The House of Lords o In addition to checks within the House of Commons, the House of Lords may cause government to modify or abandon proposed legislation. o Under the Parliament Acts 1911 and 1949:- ? The House of Lords has the power to amend and delay non-Money Bills for approximately a year before received royal assent. Rather than risk the delay of legislation, the government may prefer to compromises its proposals and accept proposed amendments from the Lords. ? The electorate o The electorate can also express its displeasure with government policies during a parliamentary term at by-elections and local government elections. o No government can afford to ignore the views of the people. ? Example: In 1993, county council elections, the government lost control of many of the councils which had been its traditional supporters. Example: On 1 May 1997, the Conservative government suffered a humiliating defeat. ? Delegated legislation and the separation of powers o Delegated legislation refers to law, rules and regulations, made by government departments, local authorities and other public bodies, under the authority of an Act of Parliament:- ? In Joint Committee on Delegated Legislation stated that “… every exercise of a power to legislate conferred by or under an Act of Parliament. ” o The principal justification for the delegation of such law making power is efficiency. Delegated power enables ministers and others to ‘fill in the details’ after parent Act has been passed. o In 1929, Chief Justice Hewart criticized delegated legislation as being abuse of power. o
An Interdepartmental Committee of Inquiry on Ministers’ Powers exonerated ministers from this charge and defended both the necessity and desirability of delegated legislation. o The volume of delegated legislation may amount to some 3,000 statutory instruments per year. o The implication of delegated legislation in constitutional terms is that a legislative function is being exercised and not Parliament. The delegation of law making power is a necessity given the heavy legislative programme and the modern complexity of legal regulation. o Provided that parliamentary scrutiny is adequate, and that the courts are vigilant and effective in ensuring that delegated powers are exercised consistently with the law- intra vires (within the legal power or authority of an individual or corporation)- it may be concluded that this ostensible breach of the separation of powers is unavoidable, although whether it is subject to adequate scrutiny and controls remains questionable. ) Legislature and Judiciary. ? Rules against criticism of the judiciary o To reinforce the independence of Judges, convention dictates that there should be no criticism from members of the executive. ? The subjudice rule o Members of Parliament are barred from raising them in debate where proceedings are either before a court or awaiting trial. ? Parliament supremacy and the judicial function o The doctrine of parliamentary supremacy entails the necessary constitutional subordination of judges to Parliament and has several implications. The sovereign of Parliament can overturn any court decision by way of legislation. – The War Damage Act 1965. ? The judiciary’s primary role in relation to the interpretation of statutes is to give effect to the latest expression of the will of Parliament- Vauxhall Estates Ltd v Liverpool Corporation (1932); Ellen Street Estates Ltd v Minister of Health (1934). o The Human Right Act 1998 was consciously drafted to preserve the balance of power- between the judiciary and Parliament.
However, legislation remains immune from judicial invalidation even where that legislation is ruled to be incompatible with Convention rights. ? Example: When Judges make ‘declarations of incompatibility’ – Human Rights Act 1998,s4. ? Judges as legislators o Parliament only became the principal law-maker in the 19th century. o Acts of Parliament are supreme and may overturn the common law. ? Example: Burmah Oil v Lord Advocate (1965) in which the House of Lords awarded compensation for property loss and Parliament overruled the decision by enacting the War Damage Act 1965. When judges make law, Parliament may also ‘tacitly’ approve the decision by not interfering with it- form of constitutional partnership. o Parliament may also expressed endorse a judicial decision by incorporating it into statute. ? Example: The amendment to the statutory definition of rape following the House of Lords’ decision in R v R (1991)- Criminal Justice and Public Order Act 1994. o Since Practice Statement  WLR 1234, House of Lords has had the power to go against a previous decision of its own. The rules of statutory interpretation, devised by Judges themselves, are designed to limit judicial creativity. o Statutory interpretation is not straight forward although Acts of Parliament are couched in detailed language in order to maximize clarity and minimum vagueness and obscurity. o In Magor and St Mellons Rural District Council v Newport Corporation (1965):- ? Lord Denning MR was accused by Lord Simonds in the House of Lords of ‘naked usurpation of legislation function’. ?
The High Court of Parliament o In Stockdale v Hansard (1839):- Parliament cannot, however-other than by an Act of Parliament-extend its own privileges. o Bill of Rights 1689, Article IX:- ? if a citizen is defamed by the absolute privilege of free speech in parliamentary proceedings, there is no legal redress. o In Pickin v British Railways Board (1974):- ? Once the process (Bill passed the Common and Lords except where the Parliament Acts apply and before receiving royal assent) is complete, it is not for the judiciary to inquire behind the parliament roll. 3) Executive and Judiciary. ? The royal prerogative Prerogative powers are exercised by the government in the name of the Crown. o In Council of Civil Service Unions v Minister of State for Civil Service (1985):- GCHQ Case ? the House of Lords made it clear that the courts have jurisdiction to review the exercise of executive power irrespective of whether the source of power is statutory or under the prerogative. ? Law officers of the Crown o The Law officers of the Crown- the Attorney General(also member of Cabinet) and the Solicitor General are members of the government. The Law Officers are advisers to government and its ministers, and, by convention, this advice must never be disclosed. However, this convention was breached when:- ? In 1986, Leon Brittan, then Secretary of State for Trade and Industry, revealed advice given on the Westland Helicopter rescue plan. o In Iraq War and BAE systems[R(Corner house Research and Others) v Director of the Serious Fraud Office(2008)] investigation shows that the office of Attorney General gives rises to allegations that his legal and political roles are insufficiently separated.
Judicial Review o Judicial Review of administrative action is designed to keep those persons and public bodies with delegated powers within the scope of the power conferred upon them by Parliament: the doctrine of intra vires. ? Judges as fact finders o It has become increasingly common for the executive to appoint judges as chairman of tribunals of inquiry. o Judges are equipped by training and experience to review evidence with impartiality and rigour and to present findings in a logical manner. o Example of diverse matters:- ? state security civil unrest and terrorism ? football club disasters ? BSE in cattle ? arms to Iraq o The Inquires Act 2005 provides that:- ? Ministers may establish an inquiry into events which “have caused’ or ‘are capable of causing public concern’ ? s10 provides that where a minister proposes to appoint a judge the Minister must consult, as appropriate:- ? the senior Lord of Appeal in Ordinary (now Justice of the Supreme Court) ? Lord Chief Justice of England and Wales ? Lord president of the Court of Session ? Lord Chief Justice of Northern Ireland