The separation of powers


The separation of powers

Introduction

separation of powers, together with the rule of law and parliamentary sovereignty, runs like a thread throughout the constitution of the United Kingdom (Barnett, p. 105).

The separation of powers is a constitutional principle designed to ensure that-

  • the functions,
  • personnel and
  • powers

-of the major institutions of the state are not concentrated in any one body.

  • It ensures a diffusion rather than a concentration of power within the state.
  • Under the uncodified, largely unwritten British constitution there is no strict separation of powers.
  • Instead, while some separation of powers exists, it is more accurate to speak of a system of checks and balances which ensures that powers are not abused.

purpose

The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.

History

The concept itself is of great antiquity and can be attributed to Aristotle (384-322 BC);however, the clearest exposition of the  doctrine can be found in the French writer Montesquieu’s De I L’Esprit des Lois (1748). In essence, Montesquieu states that the three organs of government -

  • the executive,
  • legislature and
  • judiciary

 should each have a discrete and defined area of power and that there should be a clear demarcation of functions between, them: this is true `separation of powers’.

  • Under a written constitution, the powers allocated to various institutions will be clearly defined.
  • In the UK – in the absence of such a document – the issue that requires evaluation is the manner in which and the extent to which differing functions are kept separate.
  • For the purpose of analysis, the subject may be further broken down by considering the extent to which the executive and legislature, executive and judiciary, and judiciary and legislature overlap and interact.
  • It should be noted that even under a written constitution a complete separation of powers is not possible, and that without some degree of interaction between the institutions there would be constitutional deadlock.

The major institutions of the British state

The principal institutions are the executive, the legislature and the judiciary. Each of these bodies exercises its role in the name of the Crown.

The executive

  • The executive comprises
  • the Crown and
  • the government, including the Prime Minister and Cabinet Ministers.
  • Ancillary to Her Majesty’s Government is the civil service which runs the administration of the state, and the armed forces and the police which uphold executive power.
  • The role of the executive is to formulate and implement government policy across all governmental activities.
  • The elected government of the day is accountable to Parliament, which has the ultimate power to dismiss a government and force a general election through which the people will decide on who will run the next government.
  • Members of government are primarily elected Members of Parliament who sit in the House of Commons, although a number of government Ministers also sit in the House of Lords. In order to prevent the executive dominating Parliament there are limits imposed on the number of salaried Ministers who sit in the Commons under the House of Commons Disqualification Act 1975.

Parliament

Parliament comprises-

  • the Crown,
  • the elected House of Commons.
  • and the unelected House of Lords.
  • The House of Commons, which is superior to the Lords in its law-making powers, is made up of elected Members of Parliament who represent their individual areas (constituencies).
  • A general election must by law be held at least every five years (Parliament Act 1911). Membership of the House of Lords consists of a minority of hereditary peers, life peers appointed by -
  • the Crown,
  • Archbishops and Bishops and
  • the Lords of Appeal in Ordinary (Law Lords).
  • In 2003 the government announced plans to establish a new Supreme Court, physically separate from Parliament.
  • The proposals are contained in the Constitutional Reform Bill 2004.

The judiciary

The judiciary includes

  • all the judges in the courts of law, and
  • also those who hold judicial office in tribunals, and
  • the lay magistrates who staff the Magistrates’ Courts.
  • Judicial appointments are made by the Crown on the advice of the Lord Chancellor (on whose role see below).
  • It is the function of the judges to interpret legislation in line with the intention of Parliament and to develop the common law (judge-made law).
  • Constitutionally, judges are subordinate to Parliament and have no power to challenge the validity of Acts of Parliament.
  • Judges are prohibited from standing for election to Parliament under the House of Commons Disqualification Act 1975.

the Lord Chancellor

  • The office of Lord Chancellor spans the major institutions of the state.
  • The Lord Chancellor is head of the judiciary with responsibility for the appointment of judges.
  • He or she is also a member of the Cabinet, and therefore plays a central political role in government.
  • The Lord Chancellor also presides over the House of Lords as its Speaker, thereby fulfilling a legislative role.
  • The role of the Lord Chancellor is frequently criticised as violating the separation of powers and concentrating executive, judicial and parliamentary functions in one person.

Two recent cases have challenged the equivalent positions in the Channel Islands and Scotland.

Ø      In McGonnell v United Kingdom (The Times, 22 February 2000) the Court of Human Rights ruled that the right to fair trial was violated by the participation in a planning decision of the Deputy Bailiff of Guernsey, who was both a senior judge in the Guernsey Royal Court and a senior member of Guernsey’s legislative body, the States of Deliberation.

Ø      In the Scottish case of Starrs v Procurator Fiscal, Linlithgow, November 1999 [2000] HRLR 191, the Court of Session ruled that the independence of the judiciary was impaired, and hence the right to fair trial violated, through the dependence of temporary judges for reappointment on the office of Procurator Fiscal.

As a request of criticisms the office of Lord Chancellor is to be abolished. An Office for Constitutional Affairs has been established, headed by the Secretary of State and temporary Lord Chancellor, Lord Falconer of Thoroton.

Judicial independence

  • Judges in the higher courts – High Court and above – have tenure under the Act of Settlement 1700, which protects their independence from both the executive and Parliament.
  • Superior judges can only be dismissed by an address to the Crown from both Houses of Parliament.
  • To protect the judiciary, judges enjoy immunity from legal action in relation to their judicial functions. The public interest in the administration of justice requires that judges possess absolute privilege in relation to court proceedings, even where they make statements that might be defamatory.
  • In the exercise of their judicial functions, judges must demonstrate that they are impartial.
  • Any words or actions which are capable of raising a suspicion that a judge is biased give rise to criticism. Bias may take several forms; it may be:
      • political bias
      • bias due to an affiliation with a person or organisation
      • personal bias against persons or groups because of their identities or characteristics.
  • Financial dealings may also give rise to the suspicion of bias. In their judicial role, judges must disqualify themselves if there is a suspicion of bias: `justice must not only be done but must manifestly be seen to be done’.

Two cases illustrate this aspect of judicial independence:

Ø      In Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759, the Lord Chancellor held shares in a canal company which was involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was accepted that he was not influenced by the interest, the Court ruled that it was of the utmost importance that `the maxim that no man is to be judge in his own cause should be held sacred’ [at p. 793].

Ø      In R v Bow Street Stipendiary Magistrate ex parte Pinochet (No 2) [199912 WLR 272, the House of Lords overturned its own previous decision relating to the extradition of General Pinochet to face allegations of human rights violations during his period as Head of State in Chile. Lord Hoffmann, who had participated in the earlier decision, held office as a Director of Amnesty International which had been allowed to present evidence. The earlier decision was set aside because it gave rise to an appearance of bias.

The relationships between the institutions

The executive and the legislature

  • The government proposes legislation: only Parliament may enact laws which give legal effect to these proposals.
  • As noted above, the Prime Minister and a majority of his or her Ministers are Members of Parliament and sit in the House of Commons.
  • The executive is therefore present at the heart of Parliament.
  • By contrast, in the United States of America, the President may not be a member of the legislature (Congress), and is elected separately from congressional elections.
  • This may result in the President being of a different political party from the majority of members of Congress.
  • That cannot happen in the UK, as the Prime Minister will always be the leader of the political party that won a majority of seats at a general election. Where a government has a large majority of seats in the Commons, the crucial issue is whether the government can dominate Parliament and ensure that its proposed legislation is enacted, or whether there are sufficient procedures in place to ensure that proposals are sufficiently scrutinised and either endorsed or rejected by Parliament.
  • Parliament may delegate law-making powers to the government through powers to draft subordinate or delegated legislation. The purpose of this is to free Parliament from the need to scrutinise every technical rule contained in legislation and to enable the government to draft the detailed rules. Such legislation is subject to the ultimate approval of Parliament. Delegated legislation, however, does raise questions about the separation of powers between the executive and legislature.

The executive and judiciary

  • Judicial independence from government is a key requirement of the separation of powers.
  • Judges must be seen to be politically impartial.
  • The judicial function is to interpret Parliament's intentions as expressed in legislation and to ensure - through judicial review - that any delegated legislation is consistent with the scope of power granted by Parliament.
  • The rule of law also requires that judges ensure the legality of government action; this function could not be fulfilled if the judges' independence was in doubt.

M v Home Office

An example of judicial control is seen in the case of M v Home Office [19941 1 AC 377.

Ø      A Zairian teacher (M) came to the UK seeking political asylum, claiming that he had been tortured in Zaire. The Home Secretary rejected his application for asylum and ordered his deportation. Before he was deported, M's lawyers obtained an order from the High Court requiring that M be kept in the UK in order for his claim to be considered. However, in breach of that order, M was deported. The Home Secretary was held, for the first time in legal history, to be in contempt of court for having failed to comply with the order, thereby demonstrating that even Ministers of the Crown are accountable to law.

Ø      However, the judges impose self-restraint on the areas of power which they regard themselves as competent to review. Many exercises of the royal prerogative, for example) involve issues of `high policy': such diverse matters as the appointment of ministers, the allocation of financial resources, national security, signing of treaties and defence matters. In order to protect judicial independence and the appropriate separation of powers the judges will rule that such matters are for the executive to decide. An example of this is seen in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case).

Ø      The Prime Minister had ordered that workers at the Government’s Communication Headquarters (the signals intelligence body) should no longer be allowed to be members of trade unions, a right which had been enjoyed for several decades. The Union challenged the legality of the ban.

Ø      The Court of Appeal and House of Lords ruled that where national security was in issue, the courts would not interfere.

Legislature and judiciary

  • Parliament is the supreme law making body within the UK.
  • Judges interpret legislation using the `rules’ of statutory interpretation which you will study in the English Legal System Study Guide. Constitutionally, judges have no power to question the validity of legislation: see Pickin v British Railway Board [1974] AC 765
  • However, within the constraints imposed by the `rules’ there remains a certain leeway for the judges to give new meaning to statutory language, and this raises the question of whether the judges `make law’.
  • This aspect of the judicial role is enhanced under the Human Rights Act 1998  which imposes a duty on the judges to interpret legislation `as far as possible’ in a manner to make it compatible with Convention rights. Where this is not possible, however, the superior courts (High Court and above) can issue a `declaration of incompatibility’ but cannot declare an Act of Parliament invalid.
  • The effect of this arrangement preserves both the supremacy of Parliament and also the separation of powers.
  • The development of common law also raises the issue of judicial law-making. You will know from studying the doctrine of precedent that judges are able to develop the law in line with contemporary requirements.
  • While all of common law is judge-made law, it must be remembered that Parliament may at any time overturn a judicial decision, thereby preserving its sovereignty.

Conventions and the separation of powers

As we have seen, there are many areas in which the, three institutions contravene the separation of powers. This is explained by the fact that the British constitution is largely unwritten and has evolved over time, adapting to circumstances as the need arises. It would be fair to conclude that not only is there no strict separation of powers between the institutions but that the separation of powers is quite weak. However, it must also be recognised that, in the main, allegations of `unconstitutional conduct’ are rare. The explanation for this anomaly lies in constitutional conventions. The following conventional rules are relevant.

In relation to the office of Lord Chancellor:

  • the Lord Chancellor will not participate in judicial proceedings which involve matters of government policy or which might be politically sensitive
  • when acting as Speaker ‘of the House of Lords the Lord Chancellor sits on the Woolsack; when acting as a spokesman on behalf of the government the Lord Chancellor moves from the Woolsack to a different position.

Note: The office of Lord Chancellor is to be abolished.

In relation to the judiciary generally:

  • Members of Parliament will not criticise judicial decisions
  • where proceedings are before a court, or imminent, Members of Parliament are barred from raising the issues in debate
  • the Law Lords who sit in the House of Lords will not participate in party-political debate.

In relation to the judiciary generally:

  • the convention of ministerial responsibility ensures the accountability of government to Parliament.

o        You should be alert to the concept of separation of powers throughout your study of this course, where examples of separation of powers are presented.

o        When considering sovereignty, for example, you should be aware that the sphere of power conceded to Parliament to enact laws, to regulate its own procedure, etc. is a clear, if implicit, example of separation of power.

o        Equally so is the cautious judicial attitude to questioning the exercise of the royal prerogative and the courts’ attitudes to the privileges of Parliament. Furthermore, the Human Rights Act 1998 has a significant impact on the separation of powers.

o        The attitudes of some academics and judges differ markedly regarding the separation of powers (see for example the dictum of Lord Diplock in Duport Steels Ltd v Sirs [198011 WLR 142 at p. 157).

Separation of powers

THE PURE VERSION

The French writer, Montesquieu wrote in his book, The spirit  of Laws, that, "all would be lost if the same man or the same ruling body, were to exercise these three powers, that of law making, that of the executing the public resolutions, and that of judging crimes and civil causes."

This is often said to be the classic definition of the doctrine of separation of powers but one should not 1)C mistaken into thinking that Montesquieu was the one who created the idea.

Basically, as the term seems to suggest, separation of powers also involve separation of people and the functions.

(i)The Parliament being the legislative body has the function to enact general rules for the individuals and the groups in a society.

(ii)The Executive, consisting of the queen, the prime Minister and his cabinet, the civil service has responsibilities of implementing the laws, maintaining order within the slate and administrating Foreign and internal politics

(iii)The judiciary on the other hand, has the tasks of determining issues of the fact and the interpretation of law as well as dealing with crimes or civil cases by applying the law to them.

In short, the doctrine is aimed to avoid absolutism in power by preventing a monopoly of powers and functions .There is a need for particular power and function of government to be distributed amongst different hands.

SEPARATION OF POWERS IN THE UNITED KINGDOM

The doctrine was argued to be essential towards the developments of the idea of "constitutionalism" as one of the means to  Curtail the abuse of governmental Power. in a modern UK government , however, one can no longer use the doctrine strictly to explain the complex and overlapping processes of law making, administration and adjudication although its importance has been recognised though narrowly. In the word of Sir John Donaldson MR in R v Her majesty’s Treasury ex part Smedley (1985):

"Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another".

And in the report of the Donoughmore Committee it was stared that in the British constitution, there is no such thing as the absolute separation of legislative executive and judicial powers; in practice it is inevitable that they should overlap. In such constitutions as those of France and the USA, attempts to keep them rigidly apart have been made but have proved unsuccessful. The distinction is none the less real, and for our purposes important. So it could be seen in United Kingdom that there is no "Montesquieu's separation of powers". The government being made up of members of the legislatures means that minister have both legislative and executive functions and while parliament may dismiss a government through a vote of no confidence, one must remember that the government controls the legislative works of the parliament to a large extent.

In the words of W A Robson in justice and administrative law:

"When we come to the present day, we rind a mingling of functions more extensive than any that has existed since the 161, and 17th centuries".

EXAMPLES OF OVERLAPS WITHIN THE BRITISH CONSTITUTION

(i)THE LAW LORDS

  • These sit as judges in the House of Lords and on the Judicial Committee of the Privy Council at the same time as being members of the House of Lords.
  • Technically too all members of the House of Lords can sit with the House of Lords as a court.

(ii)THE LORD CHANCELLOR

  • The Lord chancellor is a member of all three organs of government.
  • The Lord Chancellor is a member of the executive as a Cabinet Minister. As a Minister he is responsible for a small department of civil servants. He appoints judges and Magistrates, administers the courts and oversees law reform and statute updating.
  • The Lord Chancellor is a member of the legislature as a member of the house of Lords. In fart he presides over it in a similar way to the Speaker in the House of Commons without the disciplinary powers and may vote with his party. He may play a leading role in presenting` government business in the House.
  • the Lord Chancellor is a more than a member of the judiciary he is the head of it. When he sits he presides. he is also responsible for the organization of the case load of the Appellate Committee and Judicial Committee of the house of lords

(iii)THE PRIME MINISTER

The Prime Minister is head of the Executive and nowadays a member of the House of Commons. The United Kingdom has a parliamentary executive.

(iv)THE CABINET

  • The Cabinet are all members of the Executive. The Executive includes civil servants within government departments. Only Ministers are members of the Cabinet and they also all sit in , Parliament, mostly in the House of Commons with some from the House of Lords. The       appointment of Ministers rests with the Prime Minister.
  • The Ministers May exercise legislative functions 111 their own right through powers conferred ~ i pon them by Parliament as delegated legislation.

(v)THE CROWN

  • The Monarch has a role to play in all organs of government.
  • Parliament is technically the Queen in Parliament. The final stage of enactment of legislation is i he royal assent.
  • the Sovereign is head of the executive-and the Cabinet are her Ministers.
  • Likewise with the courts there are the Queen's courts.
  • But as we have already seen the United Kingdom has a constitutional monarchy and the monarch does not play an active role in government.

(vi)THE HOME SECRETARY

  • The Home Secretary is a significant member of the Cabinet and as such is a member of the executive.
  • The Home Secretary also exercises legislative functions through delegated powers.
  • In addition it can be argued the Flume Secretary exercises judicial functions. Examples include exercise of the prerogative of mercy, release of prisoners on licence under the parole provisions.

1. LEGISLATIVE AND JUDICIARY

(i)MEMBERSHIP

  • As regards membership the legislature and judiciary do not overlap significantly, The House of Commons Disqualification Act 1975 being one of the reasons, under the act , judicial officers are disqualified from becoming members of the house of commons . The Queen in parliament and the Royal Assent is needed in the process of enactment. The courts on the other hand are the royal court of justice. However in today's practice, the Queen's part in the enactment process has been described as that of the "rubber stamp" because of the established convention the queen normally grant the Royal assent after the bill has been passed through both House of Parliament. Also today the sovereign no longer plays any active part in judicial process.
  • The Lord Chancellor is perhaps the person to be viewed as being a part of both the legislature and judiciary. He presides over the House of Lords when it sits in the legislative capacity as well as presiding over appellate committee which discharges the judicial work of the house. He is the head of judiciary as he is the head of the Supreme Court and the president of the Chancery division.

(ii) FUNCTIONS

  • With the functions the legislatures performs the judiciary functions in so far as they enforce parliamentary privileges i.e. the house of parliament would act like a criminal court in considering whether somebody is in contempt of parliament and decide for them as to what punishment should he imposed. They would also assume the role of interpreting the law when they claim to be the sole judges of the extent of' their privileges.
  • Dose the judiciary ever legislate? To a certain extent they do in that the Lord Chancellor and the law Lords in the House of Lords are influential in the process of enactments. The Lords of Appeal occasionally take part in the legislative business of the House but as a matter of convention they will be restrained in the topics that they debate on as unlike the lay peers, they are not the members of political parties.
  • In the words of Colin Munro, "they confine themselves largely acting as resident technical consultants to the legislature on legal points arising out of proposed Legislations":

In short their participations are most significant and valuable only when matters of criminal law or punishment or technical law reforms being considered.

The judiciary's "creation" and development of the common law has also been argued as, legislative in nature albeit in a limited sense as allowed by parliament. This is so because of the doctrine on precedent whereby it would seen that the judicial function of declaring and applying the law has a legislative effect, whether in areas of common law or in statutory interpretation. Lord Scarman once said that "In our society, the Judges have in some aspects of their work a discretionary power to do Justice so wide that they may be regarded as law makers. The common law and the equity , both of' them in essence systems of' privet law are fields where subject to the increasing intrusion of statute law, society has been content to allow the judges to formulate and developed the law.

(iii)DO THE LEGISLATURES AND JUDICIARY EXERCISE ANY CHECKS AND BALANCES UPON EACH OTHERS?

With the sovereignty of parliament it means that the courts duties only as far as ascertaining and giving effect to the will of parliament and by no means can they ever declare any acts of parliament as invalid. However in practice today there are obviously discretions on the judges when performing the tasks of interpreting and applying those less than perfect legislations.

Still in Duport Steels ltd v sirs (1980) lord Diplock said that "The British Constitution although largely unwritten, is firmly based upon the separation of powers, Parliaments make the laws, the judiciary interprets them.... The legitimate questions for a judge in his role as interpreter of the enacted law are:

  • How has parliament, by the words that it has used in the statue to express its intentions, defined the category of acts that are entitled to the immunity?
  • Do the acts done in its particular case fall within that description?

In short Lord Diplock was of the opinion that the courts are strictly to interpret and apply the statutes and not invent any fancied ambiguities as an excuse for falling to give effect to its plain meaning. He recognised that there will be times When acts of parliament would result in unfairness or injurious consequences that parliament did not anticipate at the time the statue was passed but he asserted that when this happens it is for the parliament, not for the ,judiciary, to decide whether an change should be made.

Lord Scarman in the same case said that our law requires the judge to choose construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite parliament to reconsider its provision but he must deny the statue.

Therefore the case seems to firmly establish the separation of powers as between the  legislature and the judiciary It is best summarized by (Sir John Donaldson MR in R v Her majesty’s treasury ,ex part Smedley (1985) when he said,

"Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the, judicature are separate and independent of one another .......... if' therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of parliament  or , so far as this can be avoided, even appearing to do so ...i  would hope and expect that parliament would be similarly sensitive to the need refrain from trespassing upon the province the courts.”

The parliament on the other hand being sovereign may alter the effects of the judicial decisions, prospectively or retrospectively One example should be the War damages act 1965 as illustratedwith the case of Burmah Oil Co v Lord Advocate (1965). The Act was passed in parliament with retrospective effect to reserve the decision found in Burmah oil cases excluding possibility of claims or compensation against the crown in certain circumstances.

Another example would be the European communities Acts 1972 which provides that the decisions in the ECJ are being on the United Kingdom courts and the latter are to take into account the accountability of community law in United Kingdom.

also by statue the Lords of appeal High court of Appeal's judge are removable by the crown upon address from both houses of parliament but very rarely has this rule been put into practice . Inferior judges on the other hand have statutory protection against arbitrary dismissal.

2.EXECUTIVE AND JUDICIARY

(i) MEMBERSHIP.

  1. With regards to membership again the Queen is the head of -the executive and the courts are  the Queen's courts where most criminal indictments are brought in her name and again the Lord Chancellor is a part of both executive and judiciary as he is both a cabinet minister and the head of the judiciary
  1. another significant overlap can be found in the judicial committee of the Privy Council whose embers include present and formal lords of , appeal. The Privy Council is technically an executive organ but in actual facts it is an independent court of law thus its members can be considered as belonging to both the executive and the judiciary.

As for the overlaps in carrying their-functions the judiciary could be seen as performing the executive function is so far as they have the powers to Prevent interference with their proceedings and to enforce their judgments as it is often felt that the independence  judiciary should be  protected by leaving the essential functions to the court rather than entrusting it to the administrative authorities. However in today's modern government, there are administrative tribunals which deal with many of the disputes involving two private persons or a private person and a government department. But it has been established that this tribunals are actually’ a part of the judicial machinery and independent of the executive. Further more appeals from the tribunals decisions are to the courts although usually on points of law only.

(ii) FUNCTIONS

  • Hade & Bradley argued that "The separation of powers affords little guidance as to how particular categories of dispute should be settled, except to remind us that decisions which are to be made independently of political influence should be entrusted to courts or tribunals, and that decisions for which ministers are to be responsible to parliament should be entrusted to government departments. There are procedures like the public inquiry which have been established and decisions are made by the ministers and government departments concerned to maintain the standers of fairness and openness in the workings the executive.
  • Ministers also have some other powers with regard to judicial proceedings. The most popular example is the home Secretary-who has the power to exercise the prerogative of mercy and may pardon offenders and even reducing or remitting the judicial sentences.
  • Also there is the Attorney-General who is the principal legal adviser to the government and at e same time an elected member of the commons and usually belongs to the cabinet committee concerned with proposed legislation. In the judicial capacity he appears on behalf of the government in major cases and may institute proceedings and stops proceedings on be half of the general public interest. However conventions have it that the AG should not take any orders from the government and should not be influenced by any political factors when acting in his judicial capacity.
  • And in Gourite v national union of post office worker it was. established that the AG's decision as to whether or not to institute proceedings cannot even be challenged in the courts.

(Iii)       DO THE EXECUTIVE AND THE JUDICIARY EXERCISES ANY CHECKS AND BALANCES UPON EACH OTHER?

  • To the certain extent judges owe their appointments to the executive Strictly speaking the superior judges are appointed by the sovereign but y convention on the advice of the PM or the Lord Chancellor. However since the act of settlement 1700 judicial independence is secured by law, convention and by professional and public opinion so their dismissal is no longer at the pleasure of the executive.
  • the judiciary on the other hand checks and balances the executive by having the jurisdiction to review their actions. the court have the all-important task of protecting the citizens against unlawful  acts of government agencies and officials.

In R V London Transport Executive, ex p Greater London Council (1983).Kerr LJ said,

"an authority misdirects itself in law, or acts arbitrarily on the basis of considerations which lies outside its statutory powers or unreasonably that its decisions cannot be justified by any objective standard of reasonableness, then it is the duty and function of the courts to pronounce that such decisions are invalid when these are challenged by anyone aggrieved by them "

However, one must bear in mind that some questions are sometimes considered as non­justiciable because they are not within the expertise or resources available to the courts or may be because they raise issues of policy or the public interest which are not with in the limits of judicial procedures and rules of evidence available to the courts. In these circumstances, the courts themselves will decline the undertake inquiries. Example could be found in cases such as t e GCHQ case and Chandler V DPP' (1964) where the courts decided that the question it was in the interest of the state for the armed forces to be provided with nuclear  weapons was a political question therefore was not appropriate for, judicial determination. In chief  Constable of north Wales Police v Evans (1982) lord Hail sham took it upon himself to warn the judiciary against abuse of the power to check and balance the executive through judicial reviews because the separation of powers warrant such judicial restraint. The function of the courts in exercising judicial review is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law. So it would seem that there is after all a boundary between the courts and the executive and it runes where the courts do not interfere with the merits of the decisions reached by the executive as a mater of policy.

Of course no decision of the judiciary must be influence by and political preferences. In British Airways Board v Laker Airways ltd (1984) Sir John Donaldson MR said

"It is a matter of considerable constitutional importance that the courts should be wholly independent of the executive, and they are thus whilst the judges ..... will be aware of the policy of the government of the day these are not matter which are in any way relevant to the courts decisions and are wholly ignored".

3.LEGISLATURE AND EXECUTIVE:

(i) MEMBERSHIP

  • Again the Queen belongs to both as she is the head of the executive and a part of a parliament and again one must bear in mind the diminishing importance in the roles she pays as many constitutional conventions have long since developed limiting the monarch's power.
  • The prime Minister and his cabinet who forms part of the executive are by convention, members of one of the other house of parliament. However this overlaps concerns only the ministers as there is limitation provided by House of Commons Disqualification Act 1975 which excludes as civil servants member of the armed forces and the police from taking part in any political activities. Even with the ministerial offices, section 2 (1) _ of the 1975 Act provides for a limited number of ministers who can sit and vote in the House of Commons at any one time.

(ii) FUNCTIONS

  • As for functions, one might say that the executive exercise the legislative function in respect of delegated legislations. It is for parliament to came up with the parent statute and determine the general principal of the law whereas subordinate or delegate legislation are though to be very much in need for supplementation or detail. Of course the purpose and limits of this delegated legislation will be specified in the parent Act and judicial control may be used to ensure that the delegates do not abuse or act in excess of the powers given.
  • It has been said that parliament other than enacting legislations have three other main tasks mainly: scrutinizing the activities of the executive via the process of question time , the doctrine of ministerial responsibility or through select committees; the control of finance and the ventilation and redress of grievances. So there is an extent to which the legislatures do exercise the function of the executive. However LS Amery wrote in "Thoughts on the Constitution" The Government and Parliament however closely intertwined and harmonized ` are still separate and independent entitles, fulfilling the two district functions and examination on the other.

(iii)DO THE EXECUTIVE AND LEGISLATURE EXERCISE ANY CHECKS AND BALANCE$ UPON EACH OTHER?

  • As mentioned above, parliament has the power to control the working of the executive, albeit indirectly, -via procedures such as parliamentary questionings, specialized committees where by the parliament informs itself about the activities of the executive and keeps a certain kind of pressure on Governments For example the police and criminal evidence act 1984 came about differing significantly from the original bill which has tabled by the government. This is because the Government original proposal met with considerable reservations from parliament, that they made a large number of amendments without changing its minds about the ends to be pursued.
  • To a certain extent it can even argued that Parliament controls the executive as the House of Commons can- outs a government through the vote of no confidence when the letter has lost the ability to command a majority on any issue of confidence. One example of this happening was the minority Government which was ousted in March 1979 under Mr. Callaghan's leadership.
  • However one must not forget that more often than not the government is elected with a secure and substantial majority rendering its prospect of being defeated on such votes very slim. Therefore it can also be said that the Government by having the overall majority in the House of Commons will be able to use parliament as a means of ensuring the majority of its bill becoming law and securing any changes in law which it desires.

CONCLUSION:

So it would be seem that the doctrine of separation of powers within the United Kingdom constitution is not absolute in the absence of a written constitution although it importance is not to be underrated The essence of the doctrine is to subject the governmental structure to a political doctrine that on decentralization. It is to avoid what Lord Action had argued to be the problem with a concentration of power. Philosophically, the doctrine is an accommodation of the frailty of the human mind. In the United Kingdom, the doctrine has worked well in a different but equally effective way and its objectives have been served.

RECENT DEVELOPMENTS

CONSTITUTIONAL REFORM ACT 2005 - LEGISLABVE PROGRESS ,

The Constitutional Reform Bill was introduced to the House of Lords on 24 February 2004. The Bill received Royal Assent on the 24 March 2005. It addresses four important areas:

Judicial independence: For the first time, the Act enshrines in law a duty on government ministers to uphold the independence of the judiciary. They will be specifically barfed from trying to influence judicial decisions through any special access to judges.

Reforming the Lord Chancellor: The Act reforms the post of Lord Chancellor, transferring his judicial functions to President of the Courts of England and Wales. The Lord Chief Justice, currently Lord Woolf, will become President of the Courts of England and Wales. He will he responsible for the training, guidance an(] deployment of’ ,judges. lie will also represent the views of the judiciary of England and Wales to Parliament and ministers.

Supreme Court: The Act also establishes a new, independent Supreme Court, separate from the House of Lords with its own independent appointments system, its own staff and budget and, ultimately, its own building.

Judicial Appointments Commission: The Act will establish an independent Commission, responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Constitutional Affairs. This will ensure that while merit will remain the sole criterion for appointment, the appointments system will be placed on a fully modern, open and transparent basis.

Why did the Government propose Constitutional Reform?

  • We must constantly review our constitutional arrangements to ensure they reflect the needs of the citizens they serve. Constitutional reform matters since it is a driver of change beyond the reform itself.
  • Since 1997 three progressive values have underpinned government’s drive for reform:
    • To strengthen our democracy and public engagement with decision-making;
    • To increase trust and accountability in public bodies;
    • To enhance the credibility and effectiveness of our public institutions.
  • Rational reform is needed to strip away confusing traditions; to introduce transparent, comprehensible systems of governance, that will ensure institutions better reflect the ideals and the values of the society they serve.

what has happened since the Government announced plans for Constitutional reform?

  • There has been real progress in terms of various forms of legislation being introduced since the government started their Constitutional Reform plans in 1997. An example of this is the Courts Act (2003).
  • The Lord Chancellor’s Department is now known as the Department for Constitutional Affairs and the first Secretary of State was appointed in June 2003,
  • the Legal and Constitutional Modernization Programme and Projects were established to produce the Constitutional Reform Bill (which was introduced into Parliament on 24 February 2004 and achieved Royal Assent on 24 March 2005) and to implement the reforms set out in the Act.

What changes will the Concordat make?

  • The Lord Chief Justice as head of the Judiciary of England and Wales takes on a new role in relation to judicial appointments, judicial well being, and complaints and discipline.
  • The Lord Chancellor will no longer be a judge but will be responsible for the administration of the courts and ensuring that the judiciary are able to fulfill their roles.
  • The roles and responsibilities of the Lord Chancellor and Lord Chief Justice in relation to the Judicial Appointments Commission and the appointed of judges are also set out in the Concordat (and the Constitutional Reform Act)
  • A new administrative support office for the Lord Chief Justice and senior judiciary will be set up in April 2006. This new office will reaffirm the policy separation between the judiciary and the executive, ensuring that the Lord Chief Justice and senior judiciary will be able to discharge all their statutory functions in relation to the judiciary, magistrates and the delivery of justice effectively and efficiently.
  • A Judicial Complaints Office will also be launched in April 2006, and will improve the service Provided to court users. It will be jointly responsible to both the Lord Chief’ ,Justice and the Lord Chancellor for the operation of the judicial complaints and discipline system.

why is it necessary to reform the role of Lord Chancellor

  • It is necessary because there is a need for a clear break from the, albeit traditional, outdated and constitutionally anomalous role of the Lord Chancellor.
  • Simply passing the judiciary-related functions over to a Head Judge is not an adequate solution. The ministerial functions alone do not constitute the traditional role of a Lord Chancellor. It is therefore necessary to appoint a Secretary of State to deal with these functions.
  • The office of Lord Chancellor has become increasingly difficult to justify. The distinct roles of the Lord Chancellor need to be separated out and relationship between the independent judiciary, the executive, and the legislature needs to be -clarified.
  • The judges are the constituency for judicial functions. The public is the constituency for ministerial functions. the interests and (lie views of the two do not always coincide.
  • The duties and functions related to judiciary Should become the responsibility of  an appropriately senior-member of the judiciary. The Lord Chief justice should become , that which he is in all other countries – unambiguously the leader of the judges, the person who expresses their point of view, engages with government and, where necessary, with the public on issues which affect the standing of the judges.

what about the Supreme Court?

  • Establishing a distinct Supreme Court will enhance the credibility of the judicial system. A distinct Supreme Court, quite definitely outside the legislature will, as Lord Steyn put it “carry in the eyes of the public a badge of independence and neutrality: it will be a potent symbol of the allegiance to our country to the rule of law”.
  • Our proposals rest on the separation of’ powers. The Law lords will be taken out of the House of Lords and set up in it separate Supreme Court. There is all increasing need to underline the independence of the judicial system from both the executive and the legislature.
  • The present arrangements, whereby the highest court in the land sits under the guise of a committee of the House of Lords, are obscure.
  • By establishing, a distinct Supreme Court, for the  whole of the UK, we shall enhance the credibility of the ,judicial system embed its strength.

what impact will the Act have on people’s lives?

  • Thousands of people – including those who work in the legal profession, will benefit from greater transparency in judicial appointments and a modernized approach to higher court cases which will then be heard in the proposed Supreme Court;
  • It will ensure merit-based judicial appointments, increase diversity amongst appointees and increase confidence in the independence of the judiciary;
  • The objectives of the Supreme Court and the JAC are to ‘deliver high national standards and full accountability. The separation of powers and the creation of independent bodies will enable the explicit definition of the standards to be expected from these bodies.

CONTROL OF POWER

3.2     Introduction

At the end of Chapter 2 we considered two issues: the Scott Report and the question of whether constitutional conventions should be codified. What each of these topics have in common is that they, albeit separately, illustrate how important it is that there are checks and balances in operation which can prevent, or at least curb, the abuse of power by the State. As the British historian, Lord Acton, observed in 1887: ‘power tends to corrupt and absolute power corrupts absolutely’.

However, in the meantime, we will concentrate on two areas. First, the bulk of this chapter will be devoted to checks and balances on State power and, in this context, we will consider the principle of the separation of powers. But before turning to die ways of controlling power, we need to identify where power is actually concentrated in Ike State.

There are three obvious sources of power in the United Kingdom:

(a) the Prime Minister;

(b) the Cabinet;

(c) Parliament.

We will now proceed to consider each of these in turn, before examining the extent to which they are subject to any ‘checks and balances’.

3.2.1     THE PRIME MINISTER

There is no doubt that the powers of the Prime Minister are considerable. He or she must be the leader of the majority party in Parliament and is head of the government. The Prime Minister controls the Cabinet (e.g. determines the Cabinet agenda, may sack, reshuffle or appoint Ministers) and is the Chairperson of the most important Cabinet Committees. Other members of the Government (i.e. non-Cabinet Ministers) are appointed by the Prime Minister.

In international affairs the Prime Minister is the United Kingdom’s chief spokesperson, and may sign treaties on behalf of the nation without any formal ratification by Parliament. Moreover, the decisions to send British troops to the Falkland Islands in 1981, to participate in Operation Desert Storm to liberate Kuwait in 1990, and most recently to deploy service personnel in Kosovo, were taken by the Prime Minister, not Parliament.

The Prime Minister is also the political Head of the Civil Service and has enormous powers of patronage (e.g. dispensing titles, creating peers and awarding honours). Indeed there are few contemporary government leaders who perform such a wide range of constitutional functions and duties as the British Prime Minister.

Former Minister Tony Benn believes that the wide range of powers possessed by the Prime Minister ‘has gone too far and amounts to a system of personal rule in the very heart of our Parliamentary democracy’. On the other hand, suggestions that British Prime Ministers have almost ‘presidential’ like powers can be countered by the fact that Margaret Thatcher was forced to resign in 1990, while still in good health, as a result of pressure from within her own party while John Major, in 1995, was forced to resign and seek re-election as the leader of the Conservative Parry following a challenge from a Cabinet colleague, John Redwood. Thus, white it is undeniable that the Prune Minister has considerable influence, political factors (i.e., his or her level of support in die Cabinet, Commons, media etc.) may determine the extent to which the holder of dris office is in a position to exercise real power.

3.2.2              THE CABINET:

The term ‘Cabinet government’ is often used to describe the system of British government. In theory the Cabinet is only a committee of the government but in practice it is the most important element in the formulation of government policy. According to Professor Kavanagh ‘for the last century and a half the sovereignty of the Crown in Parliament has been vested in the Cabinet’. So what are the characteristics of the Cabinet?

Unlike the USA, where the President may appoint people from other parties or from outside politics to his Cabinet, in the United Kingdom Cabinet members are usually chosen from the party with the majority in the House of Commons.

The function of the Cabinet is threefold. First, it is the body where government policies are formulated (e.g. Government Ministers are expected to thrash out an agreed party line on issues such as defence, education, Europe etc.). Secondly, the Cabinet plans the business of the House (e.g. it approves the timing and details of Bills which are to travel through Parliament). Thirdly, the Cabinet will co-ordinate policy between different government departments. This may range from standardisation of departmental policies to arbitrating between ‘warring’ departments (e.g. a dash between me Treasury, vAuch controls the purse strings, and the Department of Education, which wants money to improve standards in schools and colleges).

The Cabinet exercises considerable power, though a former Cabinet Minister, Richard Crossman, once claimed that over the last 40 years there has been a transformation ‘of Cabinet government into Prime Ministerial government’. An obvious explanation for this has been an increase in the role of committees of the Cabinet, often under the chairmanship of the Prime Minister.

Such Cabinet Committees have existed since the beginning of the 19th century, but in recent years they have become increasingly important. For example, many key decisions taken during Margaret Thatcher’s premiership (e.g. the GCHQ trade union ban in 1984, the granting of permission to US planes which bombed Tripoli in 1986 to take off from British air bases, and decisions during the Miners Strike 1984 and Gulf Conflict 1990) appear to have been originally taken by Cabinet Committees. John Major continued this policy of relying on Cabinet Committees as has Tony Blair. At the time of writing there are 30 Cabinet Committees in total and 6 Cabinet Committees on the Constitution. The Committee on the Constitutional Reform Programme and the Joint Committee with the Liberal Democrats are both chaired by the Prime Minister, while Cabinet Committees on freedom of information, the incorporation of the ECHR, devolution and the reform of the House of Lords are chaired by the Lord Chancellor.

3.2.3    PARLIAMENT

We will look at the powers of Parliament in Chapter 5 (the Commons and Royal Assent) and Chapter 6 (the House of Lords).

3.3     The Separation of Powers

In this chapter we will be referring to the three main organs of government and their functions. They are the legislature, the executive and the judiciary.

3.3.1    THE LEGISLATURE

The legislature consists of the House of Commons, the House of Lords and the ‘Queen in Parliament’.

3.3.2    THE EXECUTIVE

In theory the Queen is the head of the Executive, but in practice the real power is exercised by the Prime Minister. Thus, the UK is a ‘constitutional monarchy’ in that virtually all of the Monarch’s powers are exercised by her Ministers. The Executive therefore consists of the Queen, the Prime Minister, the Cabinet, other Government Ministers and, in so far as it carries out the day-to-day running of the country, the Civil Service. There are now approximately 500,000 civil servants and, of these, about 3,000 are senior policy advisors (i.e., Permanent Secretaries, Under Secretaries etc.), who offer confidential advice to Ministers. Civil servants are expected to be politically neutral and anonymous but in recent years it has been claimed that the traditional political neutrality of the Civil Service has been undermined by successive governments. Thus, the Committee on Standards in Public Life in 2000 called for the creation of a Civil Service Act to reduce and regulate the activities of special advisers to Ministers (CM 4557).

3.3.3    THE JUDICIARY

As we saw in Chapter 2, judges, by convention, uk expected to retain their political independence and their constitutional role is to interpret the law.

ACTIVITY 3

(a)       Complete the following table by writing tm tfce ftppraprfete words from the list provided.

Institution                                                               Composition
TheLegislature
TheExecutive
The Judiciary

(b)       To test whether you filled in the table correctly think of the collection and expenditure of our taxes.

(i)        Who has the legal authority to raise taxes?

(ii)       What body is responsible for collecting taxes?

(iii)      Who resolves any dispute between a tax collector and a taxpayer?

(See Cases and Materials (3.2.2) for the answer.)

33.4    MONTESQUIEU

The principle of the separation of powers is regarded as having its modern origins in the writings of Montesquieu, a French political philosopher, who visited England in 1732 and • wrote De L ‘esprit des Lois in 1748. This idea of a separation of powers, the notion that three functions of government (legislative, executive and judicial) should be discharged separate bodies to avoid misgovernment, was not completely novel. A similar theory previously had been put forward by Aristotle, while in the 17th century John Locke (Second Use on Civil Government) and in the 18th century, Blackstone (Commentaries on the vs of England) had both referred to the importance of an independent judiciary operating check on a government’s power. However, the theory of the separation of powers is particularly synonymous with Montesquieu.

Montesquieu wrote: when the legislative and executive powers are united in the same person, or in the same body . . . there can be no liberty, because apprehensions may arise, lest the same Monarch or Senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again there is no liberty if the judicial power be not separated from the legislative and executive. Were it 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. Were it joined to the executive power, the judge might behave with violence or oppression.

SAQ2

(a) What is the purpose of the separation of powers?

(b) What is meant by a ‘pure doctrine’ of the separation of powers? You will find the answers to these questions in Cases and Materials (3.2.3).

ACTIVITY 4

Read the extract on the separation of powers from C. Munro in Cases and Materials (3.2.3). How does he characterise the ‘academic orthodoxy’ in this area and what lessons, if any, are to be learnt from it?

Hopefully, by now, you will have an understanding of what is meant by the separation of powers. In answer to item (a) of SAQ 2 you should have written something like this:

The separation of powers concerns the division of State power between the legislature, the executive and the judiciary. Individual liberty and democracy are best protected if one class of function is concentrated in no more than one organ of government.

The ultimate objective is therefore the ideal of law, liberty and democracy. Tyranny and dictatorship cannot thrive where power is divided amongst the three organs and there are effective checks and balances. Alternatively, you may have suggested that the aim of the separation of powers is to achieve a balance of power, where each institution acknowledges all others as equal in terms of status and respect. This interpretation of the doctrine suggests that the three institutions need not be totally independent of one another, but that absolute power should not be vested in only one person or body. Thus, the exercise of power by one institution should be checked by the other two. Whilst the UK Constitution does not conform to the ‘pure’ doctrine of the separation of powers, to some extent it may reflect this latter interpretation.

ACTIVITY 5

Sir Ivor Jennings is sceptical about the separation of powers securing liberty in our constitution. What does he think is responsible for maintaining our freedom? (See The Lm and the Constitution by Sir Ivor Jennings in Cases and Materials (3.2.3).) For analysis of Jenning’s view see the extract from Barendt in Cases and Materials (3.2.3).

3.4     The US Constitution

The US Constitution (1787) actually creates a system in which each of the three branches of government is independent of the others. The purpose of this was to prevent any single branch from becoming too powerful, providing a series of checks and balances. The American Constitution is therefore based firmly on Montesquieu’s doctrine of the separation of powers.

ACTIVITY 6

Look at the extract from Yardley in Cases and Materials (3.3) and complete the following:

Function
Composition
Legislature
Executive
Judiciary

In fact the most significant ‘check’ in the United States is not even found in its written constitutional document. Instead the Supreme Court of the United States, under the inspiration of Chief Justice Marshall, assumed for itself the power of declaring invalid Acts of Congress and of the President, when such legislation is contrary to the US Constitution (Marbury v Madison (1803) 1 Cranch 137).

ACTIVITY 7

SAQ3

No equivalent rule exists in the UK whereby judges can strike down an Act «f Parliament on the ground that it is ‘unconstitutional’. Why not? If you are unsure, the answer will appear later in this chapter.

Even in the United States there is not a totally complete and distinct separation of powers. After all, not every power can be executed independently of the others. The doctrine in the United States may be represented diagramatically as shown on the following page:

US Model

Check/balance, e.g., the judiciary can declare an Act of Congress unconstitutional

Complete the above diagram by labelling the circles (i.e., which body is the legislature etc.), and then, with reference to the US Constitution itself, see if you can add the ‘checks and balances’ built into the Constitution as represented by the arrows.

See Cases and Materials (3.3) for a suggested completed diagram. In the United States, power is divided as follows:

(a)        Legislative power – vested in Congress

Congress is composed of two Houses – an Upper House, the Senate, which has 100 members (two from each State, elected for a two-year term); and a Lower House, the House of Representatives, which has 435 members elected for six-year terms.

(b)       Executive power – vested in the President.

Judicial power- vested in the US Supreme Court, the nine most senior judges in the United States.

The founding fathers of the US Constitution were profoundly influenced by the doctrine of the ‘Separation of Powers’. Practical examples of these ‘checks and balances’ are as follows:

(a)       No member of one branch of government may also be a member of another, e.g. the President cannot sit or vote in Congress.

(b)       The President holds office for a term of four years. The President can be elected to no more than two four-year terms.

(c)       The President is elected separately from Congress. Therefore, the President may be of a different party from that which has a majority in Congress. In the 1980s Republican Presidents, Reagan and Bush, experienced difficulties in persuading a Democrat-controlled Congress to pass the laws they wanted. And in the 1990s Democrat President Bill Clinton faced similar problems as Congress, at various times, was controlled by the Republican Party.

(d)       Any member of Congress who hopes to become President must resign from Congress to assume the Presidency of the United States.

(e)        The President can veto legislation of Congress. However, this may be overridden by a two-thirds vote in the Senate.

(f)        The President appoints judges to the US Supreme Court. Such appointments are often controversial and arguably politicise the judiciary in the United States. One example of a particularly controversial appointment was President Bush’s successful nomination of Clarence Thomas as a member of the US Supreme Court. Claims were made that Clarence Thomas was only nominated because of his race (he is an African American) and for his conservative views, and that there were other candidates who were much better qualified to hold this judicial office.

(g)       Finally, the US Supreme Court may declare Acts of Congress, the President, or of any of the 50 State Legislatures, unconstitutional (illegal): Marbury v Madison (1803) 1 Cranch 137.

As you may have realised in answer to SAQ 3 there is no US equivalent to the UK principle of Parliamentary Supremacy (see Chapter 7) which prevents judicial review of acts of the legislature.

SAQ 4

Madison wrote that the government should be arranged so ‘that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places’. Explain this statement with reference to the US Constitution.

There is no formal separation of powers in the UK. (See the extract from Munro in Cases and Materials (3.2.3).) The functions of the legislature and the executive are closely interrelated. An illustration of this is the fact that Ministers in the Cabinet are members of both the legislature (by Convention, a Minister must be a member of either the House of Lords or of the Commons), and the executive. We will return to consider this point in more detail shortly.

SAQ5

Draw a diagram representing the UK Cowtitntion, using circles for each of the three institutions.

Professor WaoVcOrtciadar^hat a complete separation of powers is possible neither in theory nor in practice. However, he defines the notion of separation as meaning at least three different things:

(a)        that no person or body of persons should form part of more than one of the three organs of government;

(b)       that one organ of government should not exercise the functions of either of the other two organs;

(c)        that one organ of government should not interfere with or seek to exercise control’ over the functions of the other two organs.

To test the existence of a separation of powers in the UK Constitution, it is useful to consider these three meanings with reference to the shared functions or ‘pairings’ of the organs of government.

ACTIVITY 8

Try to think of as many examples as you can from the British Constitution which offend Wade’s three principles. Give examples of where there is a duality of function or joint membership of the main institutions. To get you started here are two examples:

(a)        The Queen is head of both the executive (Her Majesty’s government), the judiciary, and is an integral part of the legislature (the Queen in Parliament).

(b)       Administrative tribunals exercise a judicial function  but are part of the executive.

Add as many other examples as you can.

Personnel

Functions

Checks

Personnel

Functions

Checks

Personnel

Functions

Checks

THE CONTROL OF POWER

Legislature/Executive

Executive/Judiciary

Legislature/Judiciary

ACTIVITY 9

Now look at the diagram you drew to illustrate the UK Constitution. It should look something like this:

Royal Courts of Justice
Government Ministers

The Cabinet

Draw a larger version of this diagram and where the circles overlap write in examples which can be found in more than one category. For example, where would you put the following:

•    The Queen

•    The Law Lords

•    The Lord Chancellor

•    The Home Secretary

•    The Prime Minister

•    The Cabinet

•    Delegated Legislation

(See Cases and Materials (3.4) for the answer)

It would appear therefore that, in the British Constitution, a formal separation of powers is absent. There are many overlaps. In answer to Activity 8 you should have noted that the following anomalies exist in the United Kingdom.

3.5.1     LEGISLATURE AND EXECUTIVE

3.5.1.1 Personnel

Sovereign – she or he is Head of both.

Cabinet Ministers – they are members of both.

Lard Chancellor – she or he is usually a Cabinet member who also sits in the House of Lords.

3.5.1.2 Functions

In view of the problems associated with administering a modern State it has become necessary for Parliament to delegate power to Ministers (e.g. delegated legislation). The main principles are set out in Acts of Parliament and Ministers are given powers to implement those principles by detailed regulations. Delegated legislation is necessary because of increasing pressure on Parliament’s time. It is also a way of dealing with local variations and is more flexible than Acts of Parliament. However, to ensure that the executive is not usurping the powers of the legislature, there is scrutiny by the courts and Parliament. We will consider delegated legislation and these safeguards in more detail in Chapter 13.

3.5.1.3 Checks

The question remains, does the legislature control the executive or does the executive control the legislature? In one sense Parliament (through the House of Commons) controls the executive, as a government can be ousted by a Commons vote of no confidence. However, as long as the Cabinet retains a Commons majority, it can influence the passage of legislation and, in practice, most legislation is initiated by Government Ministers with the support and approval of the Cabinet.

[Party loyalties are also a relevant consideration and Lord Nolan (see Cases and Materials

I (3.4.1)) has conceded that 'the dominance of the executive has undoubtedly rested on the

[party system'. The Cabinet is mainly composed of members of the majority party in the

louse of Commons. Backbench MPs usually are reluctant to vote against their party leaders;

• all, a defeat in the Commons could lead to the dissolution of Parliament, a new general tion, and the possibility of a loss of political office. Therefore, although Parliament is in eory supreme (see Chapter 7), in practice the government enjoys considerable influence

• Parliament.

did Walter Bagehot remark that '[t]he efficient secret of the English [sic] •tion may be described as the close union, the nearly complete fusion of the itive and legislative powers’?

EXECUTIVE AND JUDICIARY

Personnel

ngn – she or he is Head of both.

‘Committee of the Privy Council— it is part of the judiciary and is a committee of the Council, which is an executive organ.

ellor – she or he is a Cabinet Minister and is also a senior member of the

3.5.2.2 Function

There has been a tendency in recent years to entrust some justiciable matters to administrative bodies (i.e., tribunals). Various reasons are put forward to justify this:

•    it saves time and money;

•    the belief that judges, with only ‘legal’ training, are not the best people to decide issues involving ‘administrative’ policy;

•    and finally, the argument that certain complicated technical issues are best dealt with by specialist tribunals.

Thus, where a dispute concerns issues such as pensions, social security or income tax, it may be handled best by highly qualified specialist bodies (i.e., tribunals). These tribunals perform the tasks of a court and have the characteristics of a court (e.g., publicity, precedent where possible, and the publication of decisions with reasons).

ACTIVITY 10

Read the extract from Barendt in Cases and Materials (3.4.2) on the separation of powers and administrative authorities.

The executive plays a role in the appointment of the judiciary. Judges (up to and including the High Court) are appointed by die Lord Chancellor, while the Law Lords and Appeal Court judges are appointed by die Prime Minister who acts on the advice of the Lord Chancellor. Indeed, the person holding the office of Lord Chancellor is selected by the Prime Minister. Despite this, the executive normally exerts little control over the judiciary and tends to leave the judges to apply and ifltecpeet the law.

An independent judiciary Is a safeguard against the abuse of power. The judiciary tends to check rather than control the actions of the executive. For example, Michael Howard, the former Home Secretary, was admonished by the judiciary in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, when he was held to have acted unlawfully in ignoring the will of Parliament by introducing a criminal injuries compensation scheme which was radically different from that authorised by Parliament. However, in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, the former Foreign Secretary, Douglas Hurd, was censured for authorising £234 million in aid for the Pergau Dam project in Malaysia. These cases are examined in more detail later in this book and extracts from them can be found in Cases and Materials.

3.5.3    LEGISLATURE AND JUDICIARY

3.5.3.1 Personnel

Sovereign – she or he is Head of both.

House of Lords – the Law Lords sit in the highest Appeal Court in the land and are also part of the legislature (although by convention they remain apolitical).

Lord Chancellor – he or she is the Speaker of the House of Lords in its legislative capacity and is the head of the judiciary under the Crown.

3.5.3.2 Functions

Both Houses of Parliament may exercise a judicial function to punish members and others who are in breach of House privilege or in contempt of Parliament (see Chapter 5). Moreover, Parliament has delegated powers to Ministers, on occasion, to exercise a quasi-

\ judicial function. For example, during the Second World War, the powers of a Minister to (detain on suspicion anyone he or she believed to be a threat to national security could not be

[Questioned in the courts: (Liversidge v Anderson [1942] AC 206). Although such disputes inay on occasion be dealt with by special committees or tribunals, some argue (e.g., civil liberties pressure groups) that matters involving personal liberty should only be resolved by

fin independent judiciary.

finally, it is also clear that sometimes judges, in fact, make law — the common law itself is „ /idence of this — however, the extent to which this creative role of the judiciary usurps pRarliament’s legislative function is a matter for debate, which will be considered later in this 3k.

5.3.3 Checks

lior judges (e.g. members of the High Court and above) can only be removed from office the Queen after a Resolution has been passed by both Houses of Parliament. This has only happened once when an Irish judge, Jonah Barrington, was found guilty in 1830 of icial impropriety. It is much more usual for a senior judge who has acted inappropriately i be censured by the Lord Chancellor, or to resign voluntarily as Mr Justice Harman did in aary 1998, when he was criticised in the Court of Appeal for taking 20 months to reach a cision in a case without the assistance of his trial notes which he had earlier misplaced, vertheless, Parliament does exercise a power over the judiciary in so far as the Judicial sions and Review Act 1993 imposes the requirement that judges appointed after 1993 normally retire when they reach 70, while those who accepted judicial office before that i may not sit over the age of 75. All judges are affected by this except the Lord Chancellor, unique constitutional position has exempted the holder of this office from the jlsory retirement legislation.

aversely, it must also be remembered that judges have power. While the judiciary cannot : Acts of Parliament invalid, even under the Human Rights Act 1998, judges may exert control over the legislature, in practice, through the way in which they tion. This will be considered in more detail in Chapter 4 while other examples I of judges will be provided when we look at European Community law (< ticular the courts’ ability to suspend UK legislation where it conflicts with

‘ (R v Secretary of State for Transport, exports Factortame Ltd (No. 2) [ 1991 ] , as well as judicial review (Chapter 15).

can Parliament control the judiciary?

Since the UK does not have a written constitution, there are few visible legal rules to provide the checks and balances which are necessary to prevent an abuse of power. So it is now to conventions (non-legal rules) that we must briefly return.

In Chapter 2 we discovered how conventions have enabled the UK Constitution to move with the times. However, constitutional conventions are also relevant in considering the checks and balances imposed upon those on whom power is vested. For example particularly important conventions in this context include:

(a)       The convention that the Law Lords should not participate in overtly party political debates in the House of Lords. This is consistent with the convention that judges should be politically neutral.

(b)       The convention of Ministerial Responsibility and the accountability of ministers to Parliament.

(c)       The convention that a government must resign if it is defeated in a vote of confidence in the House of Commons.

(d)       The convention that a Minister must divest himself or herself of any position which appears to be incompatible with the holding of ministerial office (e.g. the Secretary of State for Defence should not be the majority shareholder in a private company which manufactures tanks since there would appear to be a conflict of interest on the occasion of defence procurement contracts).

Turn back to Chapter 2 and think of any other constitutional conventions which seek to prevent misgovernment and the abuse of power.

ACTIVITY 11

Read the article by Lord Steyn in Cases and Materials (3.4.3). Do you agree with Lord Steyn’s claim that ‘the proposition that a Cabinet member must be the head of our judiciary in England is no longer sustainable on either constitutional or pragmatic grounds’?

In response to SAQ 7 you may have concluded that Parliament has the power to make and change the law. Thus, if Parliament is unhappy with a decision of a court, it can pass legislation (retrospectively) to repeal it. For example the Northern Ireland Act 1972 was passed to overturn the decision in R (Hutne) v L’Derry Justices [1972] NILR 91. We will

consider the validity of such retrospective legislation in Chapter 7 when we toohait Parliamentary supremacy.

3.6     Constitutional Significance of the Separation of Powers

The constitutional significance of the separation of powers is perhaps best illustrated by case law. Look at the extracts from Duport Steels Ltd v Sirs [1980] 1 WLR 142, British Airways Board v Laker A invays Ltd [ 1984] QB 142 and R v Her Majesty’s Treasury, ex parte Smedley [1985] QB 657 in Cases and Materials (3.5). In the last two cases, Lord Donaldson made a number of pertinent observations relating to the separation of powers. Lord Donaldson also addressed these issues in Mv Home Office [1992] QB 270.

In Mv Home Office, a 28 year-old Zairean teacher had arrived in the UK in September 1990 seeking political asylum, claiming to have been tortured in Zaire. The Home Office rejected this claim. Twenty-four hours before he was due to be deported, his lawyers passed a medical report to the Foreign Office supporting his claims of torture. M’s legal advisers managed to secure an order from Garland J that the asylum seeker should be kept in the UK while his case was being considered. However, the Home Secretary and various Home Office officials failed to prevent M’s departure and neglected to intercept his flight at Paris to prevent his outward journey to Zaire, from where he disappeared. The main question to be answered by the court was whether a Minister could be guilty of contempt of court.

In the Court of Appeal Lord Donaldson, in delivering the main judgement, held that Ministers are not immune from legal ruling which ordinary citizens have to obey. He reasoned that ‘It would be a black day for the rule of law and the liberty of the subject’ if Ministers could not be held to account. Lord Donaldson added that individual citizens should be able to look to the courts for protection under the law, and that the judiciary could not simply trust the government. Judges had to ensure that civil servants and Ministers are accountable to the law (i.e., courts) for their personal actions. Similarly, Nolan LJ, on the relationship between the executive and the judiciary, commented:

… the proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the court as to what its lawful province is.

Thus, the Court of Appeal, by a majority of 2 to 1, found Kenneth Baker to be the first Minister in UK legal history, to be guilty of contempt of court. The House of Lords [1994] 1 AC 377 rejected Baker’s appeal and held that the contempt jurisdiction of the courts extended to Ministers of the Crown. This is an important case which illustrates the willingness of the judiciary to hold the executive accountable to the law.

ACTIVITY 12

What does Professor Jowell mean by an ‘assertion of judicial authority?’ Read the extract from M v Home Office in Cases and Materials (3.5). Is it possible that judges may ‘over assert their authority?’

A case which is often cited as illustrating the dangers of judges ‘over asserting their; is Shaw v DPP [1962] AC 220. Shaw planned to publish a ‘ladies’ directory’,: of prostitutes and their services. After consulting his lawyers and the police, he’

¥m the event of publication, he would not be committing an offence. Nevertheless, a conviction of’conspiracy to corrupt public morals’ was upheld by the House of Lords (even It   though such a conviction was unprecedented and there was no such statutory offence). Viscount Simonds spoke for the majority of the Lords when he stated:

In the sphere of criminal law I entertain no doubt that there remains in the courts of law a 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, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.

This is a striking example of judicial creativity by the House of Lords but it should be added that such cases are rare. Most judges are loath to acknowledge any ostensibly creative role for the judiciary.

ACTIVITY 13

Read the extract in Cases and Materials (3.5) from R v Secretary of State for the Environment, exparte Hammersmith and Fulham London Borough Council [1990] 1 AC 521 at 560 and 561. There the House of Lords rejected an application for judicial review of the Secretary of State’s decision to ‘charge cap’ a number of local authorities which had imposed excessively high community charges. It was held that the Secretary of State had acted neither illegally nor had there been any procedural impropriety. According to Lord Donaldson MR, what should be the role of a judge?

SAQ8

(a) Explain how the rulings in M v Home Office, Shaw v DPP and R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council illustrate the principle of the separation of powers.

(b) Of the three organs – legislature, executive and judiciary – which is potentially the most powerful? Which is actually the most powerful? For some ideas turn to the views of Sir John Laws in Cases and Materials (3.5).

3.7     Conclusion

The accountability of those holding power is a theme which runs through this book. As Lord Scarman wrote in Why Britain Needs a Written Constitution (1992), ‘a government above the law is a menace to be defeated’. Therefore, in response to SAQ 8, you will no doubt have explained that it is imperative for there to be checks and controls on the three institutions of State. Shaw v DPP is an example of how the judges can exercise their law-making potential and, in effect, usurp Parliament’s power to legislate. However, Parliament can always pass legislation to reverse any such decision of the courts. M\ Home Office is a good example of the courts checking the actions of the executive by holding Kenneth Baker, the then Home Secretary, to account. Lord Donaldson MR described the role of the judiciary in R v Secretary of State for the Environment, exparte Hammersmith and Fulham London Borough Council as

. . ,m

one of a referee. Parliament makes the rules, supplemented by the common law. It is up to me courts to determine whether or not those rules have been broken and not to comment or express an opinion about the way in which ‘the game’ has been played.

The legislature is theoretically the most powerful of the three organs of government. The principle of Parliamentary supremacy means that Parliament is able to pass any law it chooses. However, where a government can rely on the support of a majority of MPs in the Commons, and most members of the House of Lords, it can easily push legislative proposals through Parliament.

Therefore, in the British Constitution there is no separation of powers in the strict (or US) sense between the executive and the legislature. The extent to which this is a weakness of the UK Constitution is something for you to consider. As Professor Robert Stevens in The Independence of the Judiciary: The View from the Lord Chancellor’s Office (1993) points out: ‘Nothing underlines the atheoretical nature of the British Constitution more than the casualness with which it approaches the separation of powers.’

2 Constitutional Principles: The S of Powers and the Rule of Law

2.1     Introduction

2.2     Key points

2.3     Recent developments

2.4     Analysis of questions

2.5     Questions

2.1 Introduction

Whilst the United Kingdom may lack a written constitution in the formal sense, it does display two crucial features associated with constitutionalism, namely some adherence to the doctrine of the separation of powers and a commitment to a culture of the rule of law. Tfcf doctrine of the separation of powers provides that there should be three distinct sectors of government: the legislature to make the law; the executive to put it into effect; and the judiciary to adjudicate upon disputes regarding the application of the law. Further, the doctrine provides that there ought to be some system of checks and balances whereby each arm of government can exercise some control over the other. The doctrine of parliamentary sovereignty considered in Chapter 3 means that, in theory, the legislature has ultimate power within the United Kingdom constitution – although this does not mean that they system of checks and balances is fatally flawed. Regard should also be had to the extent to which the legislature is subject to popular democratic control. The doctrine of the rule of law has several facets, but in simple terms it means that no body is above the law, that the law applies to all equally, and that die law is certain and consistent, not arbitrary. Again there are many ways in which the United Kingdom constitution fails to satisfy all of these requirements, but essentially there is a culture of respect for the law. Crucially, the judiciary, through the use of the judicial review procedure, can exercise control over members of the executive and, where necessary, strike down their decisions as unlawful.

2.2 Key points

a)   The separation of powers ,       -

As outlined above, the three basic and essential organs of state are legislative, and judicial. With a view to avoiding the potential for an autocratic and of government it has been considered theoretically desirable for the functions tol separate. In 1748 the French jurist Montesquieu developed the doctrine of these] of powers which argues the need for checks and balances to exist between die 1 a useful concept for analysing the nature of our parliamentary democracy.

i)    Legislature and executive

There is a significant overlap. Ministers head departments of state,’ initiates legislation and has the controlling voice in Parliament. authorities have a limited law-making function through delegated’

Constitutional Law: The Machinery of Government

ii)  Executive and judiciary

The Lord Chancellor heads the judiciary, presides in the House of Lords and has a seat in Cabinet. Judges are appointed by the Lord Chancellor or by the Queen on the advice of the Lord Chancellor. The judiciary control the executive authorities from exceeding their powers: see Associated Provincial Picture Houses Ltd v Wednesbury

Corporation [1948] 1 KB 223.

iii) Judiciary and legislature

A degree of separation exists: House of Commons Disqualification Act 1975. Judges do, however, to a certain extent make law: see Shaw v DfP [1962] AC 220.

Within our constitution Parliament is supreme aMd the courts cannot challenge an Act
of Parliament. In many countries with mitten CB«titutk>ns the courts can challenge
an act of the legislature as uncorotitutionatlJBeiHwK*T British Railways Board [1974]
AC 765.

Our membership of the European Union obliges the United Kingdom to legislate in a way that is consistent with European law. -In theory, however, Parliament could repeal the European Communities Act 1972, so any loss of sovereignty is limited and partial.

The rule of law

rule of law is a somewhat abstract concept based on the principle that government be seen to be legitimate – in the sense that it is impartial, fair and obeyed even when :d with. Dicey expressed this in terms of the following propositions:

i man is punishable except for a distinct breach of the law and then only in the ordinary and in the manner prescribed by law. This is contrasted with arbitrary and etionary power. Governments in the twentieth century do enjoy wide discretionary irers — welfare benefits, public health, sentencing policy etc. Wide arbitrary powers are ied and attempts made to ensure accountability.

> one is above the law and everyone should be subject to the jurisdiction of the ordinary s: Entick v Carrington (1765) 19 St Tr 1030. Disputes between government and citizen settled in the ordinary courts. But note the part played by administrative tribunals. liilst the courts cannot challenge an Act of Parliament, they will review administrative action. Note also the fact of parliamentary supremacy and the wide powers of governmental ‘officials. See R v Inland Revenue Commissioners, ex pane Rossminster Ltd [1980] 1 All ER 80.

ciples of constitutional law are contained in judicial decisions that serve to ensure that iual liberties are protected. This is contrasted with the position in countries with a constitution where a single document seeks to establish citizens’ rights and places on the judiciary to develop laws that protect liberties. The extent to which civil in the United Kingdom are protected in the absence of an entrenched Bill of i remains a matter of debate, although the incorporation of the European Convention i Rights by means of the Human Rights Act 1998 goes some way to meeting these

: developments

Iff: of the Human Rights Act 1998 raises some interesting issues relevant to the |f the separation of powers and the rule of law. Whilst the courts will not have

r

2   Constitutional Principles: The Separation of Powers and the

The power to declare legislation unconstitutional on the basis that it does not comply with the terms   Of the European Convention on Human Rights as enacted, the higher courts will be empowered to grant declarations of incompatibility. The relevant minister will then be able to use powers granted under the 1998 Act to introduce remedial legislation. This represents a clever compromise that retains the distinct roles of the judiciary and the legislature whilst exploiting the conventions of responsible government to help ensure that any necessary changes are made. Again it is assumed that any government committed to the concept of the rule of law will want to be seen to be acting in compliance with any declaration of incompatibility, or will at least feel compelled to explain why remedial action is not being taken.

2.4 Analysis of questions

Examination papers frequently contain questions on the separation of powers and/or the doctrine of the rule of law. As ever a thoughtful approach will be rewarded. With the separation of powers questions you will normally be required to give some explanation of what the doctrine involves, but additionally you should be prepared to examine the extent to which the United Kingdom complies with the doctrine, the significance of any shortfall, and the extent to which this is remedied by the existence of an effective system of checks and balances between the various branches of government. When dealing with questions relating to the rule of law try to give examples of compliance and non-compliance. It may be appropriate to consider the extent to which there is a conflict between the doctrine of the rule of law and the doctrine of parliamentary sovereignty. To the extent that there is a conflict which doctrine do you think should prevail and -why?

2.5 Questions

QUESTION ONE

‘It must be conceded that the constitution of the United Kingdom deviates from a pure concept of separation of powers. Nevertheless the concept is respected and adequate safeguards exist to prevent abuse of power.’

Discuss.

University of London LLB Examination (for External Students) Constitutional Law June 1993 Ql

General Comment

A straightforward question that calls for a clear narrative of the workings of the British constitution and the ways in which the democratic principle is upheld in a system without a rigid constitutional separation of powers. The challenge is to present the material in an original and lively way, because many average students will simply regurgitate large sections of traditional textbooks on this topic. Hence the suggested solution concentrates on a particular theme (the separation between law and politics) and very specialised illustrations, with no attempt to cover the entire (very wide) field of the distribution of power in modern British society. It is one approach; there are many others. It is a useful reminder that, for law exams, there are no ‘model’ answers, merely suggested approaches to solutions.

Skeleton Solution

Definition of Montesquieu’s ‘pure’ concept of separation of powers. constitutional Law: The Machinery of Government

The British constitution and the overlapping of organs and functions.

• Safeguards, illustrated by detailed discussion of one area: the separation of law and politics through constitutional conventions.

• Application to the office of Lord Chancellor.

• Do the particular conventions work?

• The decision in Pepper v Hart and Lord Mackay’s significant dissent.

• The courts and Parliament Speaker Boothroyd’s views and those of Lord Donaldson MR.

• Alternatives to the conventional approach.

• Difficulties in the American System Of government.

Suggested Solution .

The ‘pure’ concept of the separation of powers is that propounded by Montesquieu:

‘The three main powers of government, namely, the legislative, executive and judicial, should be organically and functionally separated in order to avoid the risk of too much power being accumulated in one person or institution, ie the risk of tyranny’: from L’Esprit des Lois (1748).

The theory proved of great influence in the drafting of the American Constitution in 1787, but is clearly not strictly followed by the British constitution, which has developed in an unwritten, pragmatic fashion since the Norman Conquest of 1066. Today the three main organs of government can be found in one institution: Parliament. The functions of government are also shared, to take the most famous and obvious example: the Lord Chancellor, who combines the functions of judge, Cabinet minister and legislator in the House of Lords (where he also acts as Speaker).

Yet, as the assertion in question points out, respect is paid to the spirit of Montesquieu’s theory, if not the letter of it. Safeguards have developed to minimise the risks of abuse of power from institutions such as Parliament and the Lord Chancellor. Whether they are adequate, however, is another matter, and one that has generated controversy among lawyers and politicians for generations.

Conventions of the constitution have assumed great importance in checking the exercise of power. Conventions are ‘unwritten’ guidelines designed to persuade decision makers to act fairly, responsibly, democratically and morally. For example, the holder of the office of Lord Chancellor will be expected, by convention, to separate his party political views from the views he must take when acting in the capacity as head of the judiciary, whether he is appointing judges or himself sitting as a judge to hear an appeal taken to the House of Lords.

It has been argued that conventions such as these are followed either because of the integrity and sense of honour of the office holder (an ‘internal’ limit) or because of the fear of the adverse political consequences of a breach of a fundamental convention (loss of reputation, removal from office, etc: an ‘external’ limit). A person who is appointed as Lord Chancellor is expected to command the confidence of the judiciary, the legal profession and the public generally when exercising judicial functions and hence the internal limit is more likely to operate in his case than with any other politician. Even the most passionate kinds of politician, eg Lord Hailsham, have been able to exercise dispassionate judgment when exercising those functions of the office of Lord Chancellor that require impartiality and independence from the executive.

Nevertheless the fear remains that, as a member of the Cabinet, the Lord Chancellor may be unable to separate his functions in the sophisticated and subtle manner which may be required. To take a recent example (and one is not questioning the integrity of Lord Mackay on this point) in the case of Pepper v Hart (1993) six of the seven Law Lords (Lord Mackay LC dissenting) were prepared to allow access to Hansard for lawyers and judges when considering issues of statutory construction. Lord Mackay dissented solely on the ground that to permit such access would add greatly to the costs of litigation. One must be tempted to wonder whether his responsibility for public spending on the legal aid scheme (an executive, political responsibility) may have proved decisive in reaching this particular judgment, since none of the other Law Lords considered costs to be a major problem. If the Lord Chancellor were not permitted to sit as an appeal judge would the decision in this case have been unanimous if one of the other Law Lords had taken his place?

The curious point that emerges from the decision is that, in practical terms, Lord Mackay may be proved right, since use of Hansard has increased dramatically since that landmark decision and the impact on the costs of litigation is likely to be significant. This shows how a merger of powers and functions can be useful in (perhaps) influencing a decision and making it better informed than it otherwise would have been. Lord Mackay’s judgment in Pepper v Hart reveals experience of empirical research that is lacking in the other judgments, which tend to rely heavily on abstract issues of principle.

The separation between law and politics is certainly regarded as a desirable objective in the British constitution, even if the two areas are not organically and functionally separated by rigid written rules. In the recent controversy over the legality of ratification of the Maastricht Treaty, the Commons Speaker, Betty Boothroyd, took the unusual step of reminding the courts not to get involved in politics when they came to exercise judicial review on the issue. In return, she said, Parliament and politicians respect the independence of the judiciary. This echoes part of a judgment given by Lord Donaldson MR in R v HM Treasury, ex pane Smedley (1985) to the effect that, notwithstanding that the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and judiciary are separate and independent of one another. As he observed: ‘It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament … I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing upon the province of the courts.’

What if the British pragmatic approach, based on convention, fails to work? The answer is probably a written constitution, with a Bill of Rights, providing for a compartmentalisation of organs and functions and a system of American style checks and balances. But the price may be high: less well informed decision-making and less efficient and effective government. The American experience of ‘gridlock’ between President and Congress in recent years is testimony to that risk.

QUESTION TWO

‘The Rule of Law is too vague a concept to be of practical relevance to an evaluation of the actions of Government.’

Discuss.

University of London LLB Examination (for External Students) Constitutional Law June 1993 Q3• Contrast with Dicey’s 19th century formula.

• The three elements and objectives of Dicey’s Rule of Law.

• Their influence in establishing safeguards against abuse of power.

• Delegated legislation and tribunals.

• Trades unions and security services.

• Ministers of the Crown and M v Home Office.

Judicial review.

• Conclusion.

Suggested Solution

Modern versions of the Rule of Law tend to be formulated in broad political language embracing concepts such as ‘justice’, the rights of man, fundamental freedoms etc. They tend to be too vague to serve as quality tests for the democratic behaviour of governments. An example is the Declaration of Delhi 1959:

‘The Rule of Law means the principles, institutions and procedures, not always identical, but broadly similar, which the experience and tradition of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and to enable him to enjoy the dignity of man.’

The absence of precise legalistic analysis from this Declaration probably allows various dictatorships around the world to claim that the Declaration has been transplanted, with modifications, into the soil of their constitution and legal system. The Rule of Law becomes a political concept made of clay to be moulded into the shape desired by the potter.

However, if one reverts to the classic, albeit largely discredited, theory of the Rule of Law as propounded by the Victorian Oxford Professor A V Dicey one finds a formal legal analysis which is at least capable of being used to measure the actions of government, and which even today is invoked from time to time to criticise abuses of power. It might well still be a political concept dressed up as law, but it is not as vague as the Declaration of Delhi or other modern variants.

Dicey contended that the Rule of Law has three essential elements:

\ that no one should be punished or lawfully made to suffer in body or goods except for a Jp. distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land;

2   Constitutional Principles: The Separation of Powers and the Rale

b)   that no one should be above the law: that every person, whatever his rank or should be subject to the ordinary law and answerable to the ordinary courts; and

c)   that the general principles of the constitution, such as the right to personal liberty and the right of public meeting, are the result of judicial decisions and that so we have a judge-made constitution.

Dicey summed up the objective of those three elements as being ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and the exclusion of arbitrariness, of prerogative or even of wide discretionary authority on the part of government’: from Introduction to the Study of the Law of the Constitution (1885).

Dicey’s views proved immensely influential on thinking throughout the twentieth century in the British constitution. Element (a) lay behind Parliament’s caution in setting up tribunals and in granting delegated law-making powers to ministers and others. Committees such as Donoughmore (1932) and Franks (1957) recommended safeguards against the risks of abuse of power by ministers, tribunals and inquiries, which, of necessity, had to operate in a fashion far removed from the due process of law administered by the ordinary courts of the land. Supervisory bodies such as Parliament’s Committees on Statutory Instruments and the independent Council on Tribunals, as well as the relatively modern British phenomenon of ombudsmen (imported from Sweden), show how the British constitution has adapted to the social welfare needs of the twentieth century without losing sight of Diceyan concepts.

Element (b) of Dicey’s theory, concerning equality under the law, was said to have been gravely weakened by certain power groups in society which were able to operate at times seemingly with utter contempt for the law, eg the mineworkers’ union in the period of 1972—4 which flouted statutory income restraint legislation; trades unions generally in the period 1974—9; and the state security services where control and accountability seemed so minimal as to be virtually nonexistent until very recently. However the ‘Thatcher Years’ of 1979-90 witnessed a reassertion of the rule of law over trades unions (it took a year-long miners’ strike to end in failure to achieve it, in 1984) and steps were even taken to establish a statutory framework and system of parliamentary control for the security services, first with the home service, MIS, under the Security Service Act 1989 and then, during John Major’s government, with the foreign service, MI6, under the Intelligence Services Act 1994. Even the long established common law immunities of the Crown, which sometimes seemed to put ministers above the law, suffered a blow with the recent historic decision that ministers, in their public capacity as Crown servants, could be made subject to the law of contempt of court, a decision which Sir William Wade QC hailed as a tremendous victory for the Rule of Law: M v Home Office (1993).

Dicey’s third element, which some have regarded as descriptive rather than normative in character, has also proven a useful weapon in the armoury of those who believe in vigorous judicial review of administrative action and perhaps the creation eventually of a domestic human rights court to enforce a Bill of Rights against an over-mighty executive (ironically Dicey was against a Bill of Rights because he thought it would undermine parliamentary sovereignty; but in his day Parliament was not the executive-dominated institution which it is today; if he had lived to see the power of the Whips and executive patronage Dicey may well have changed his view). The rapid growth of principles of judicial review in the last 30 years is regarded by many senior judges as their most significant contribution to establishing constitutional restraints against abuse of power and, indeed, Wade & Bradley call judicial review a modern constitutional fundamental.

So Dicey’s formula, far from being vague and transitory, has proven of solid and lasting value in influencing the development of controls over decision makers and in bringing government back within the law.

JPJESTION THREE

In what respects does the British constitution conform to, or contradict, the doctrine of separation of powers?

University of London LLB Examination (for External Students) Constitutional Law June 1996 Ql

General Comment

The question involves an understanding of the basic structure and workings of the British constitution. The candidate should be familiar with what is meant by the doctrine of separation of powers and how this idea is put into practice in the context of the unwritten constitution of the United Kingdom. This will also involve an appreciation of the workings of conventions and the role of important ‘actors’ in the constitution.

Skeleton Solution

Definition of the doctrine.

• Its strict application in other constitutional jurisdictions, eg the US.

• Relevance to the UK; the Westminster model – the comments of Bagehot     the role and functions of the Attorney-General, Lord Chancellor, the Law Lords.

• In contradistinction, the independence of the judiciary, Act of Settlement, House of Commons Disqualification Act 1975 and the judiciary.

• The status of the Crown.

• Conclusion.

Suggested Solution

The doctrine of separation of powers divides the workings of a constitution into three distinct branches. These are the legislature, the executive and the judiciary. The legislature passes the laws, the executive puts them into practice and the judiciary interprets them. The ‘highpoint’ of this doctrine is to be found in the works of the eighteenth century philosopher Montesquieu. In this book The Spirit of the Lam, published in 1748, the author advances the view that the best foundation for individual liberty and good governance is to separate the three branches of government. The three branches of government will have distinct functions and none will be powerful enough to dominate the others. Montesquieu wrongly believed that this formula applied to the England of his time, but the theory served to influence the founding fathers of the American constitution, which does apply the doctrine in practice. A member of the United States Congress is forbidden, for example, to be a member of the United States government: art 1, s6.

How, then, is this doctrine relevant to the UK? First, the United Kingdom constitution is characterised by the blending of the executive and the legislature. It is unusual, as a result of constitutional conventional practice, for a member of the executive not to be a member of the legislature. If the government of the day wishes to bring in an outsider a non-professional politician – into government then that individual must be found a seat in the legislature,

either in the House of Commons through election or in the House of Lords through ennoblement. Walter Bagehot in his classical work The English Constitution (1867) describes the constitution as displaying ‘the close union, the nearly complete fusion of the executive and legislative powers’.

He then went on to argue that the fusion takes place in the Cabinet, a body which he graphically described as: ‘a combining committee – a hyphen which joins a buckle which fastens the legislative part of the state to the executive part of the state. In its origin it belongs to the one, in its functions it belongs to another.’

The Cabinet and government only come into existence because the majority of the legislature wish it so, but, as Bagehot points out, the Cabinet (and now the Prime Minister) may request a dissolution of Parliament and ‘annihilate the legislature’. In contrast, the United States’ President cannot dissolve the Congress, nor is his existence dependent upon a majority in the legislature. The amalgamation of the executive and the legislature and the answerability of the executive to the legislature, demonstrated in Question Time, is one of the fundamental characteristics of the Westminster model of government.

The role and functions of particular offices in government display this amalgamation of the branches of government. The Attorney-General has a function as a quasi-judicial officer of the Crown. In this role he decides in a limited number of offences and cases whether or not to initiate a prosecution. In this he is answerable to Parliament – usually the House of Commons – and may in theory be removed by them in a vote of no confidence. The Attorney-General is a member of the government, although not a member of the Cabinet, a convention which resulted from the alleged pressure which was placed upon the then Attorney-General, Sir Patrick Hastings, who withdrew a prosecuting against J R Campbell, acting editor of a Communist paper, for ‘incitement to mutiny’. The Attorney-General does take into account the views of the Cabinet when performing his functions, but he is not bound by the views of the Cabinet or Prime Minister. When Lord Denning, in an inventive phase, tried to make the Attorney-General answerable to the courts, this was firmly repudiated by the House of Lords in Gouriet v Union of Post Office Workers (1977). Similarly, the Divisional Court in R \ Solicitor-General, ex parte Taylor (1995) reiterated that the Attorney-General, or the Solicitor-General acting on his behalf, is not amenable to judicial review of his official decisions.

It is with the office of Lord Chancellor that the absence of separation of powers is most marked. The Lord Chancellor is a member not only of the government but also of the Cabinet. He is chosen by the Prime Minister, and previous Lord Chancellors, such as Lord Hailsham, have had an active political career before ascending to the office. Indeed, Lord Hailsham once ran for the leadership of the Conservative Party. The Lord Chancellor has important administrative functions to perform in connection with the judiciary and is responsible for law reform, some of which may be politically controversial, as with Lord Mackay’s proposed reform of the divorce laws. The Lord Chancellor is also a judge and may preside over the Judicial Committee of the House of Lords. This office also entitles the holder to sit in the legislature (in the House of Lords), and the Lord Chancellor acts as Speaker of the upper chamber, performing a Janus-type role of acting as an umpire – although less active than the House of Commons Speaker – and participant. The Lord Chancellor is also instrumental in the appointment of members of the judiciary in practice and theory. Justices of the Peace (JPs) are appointed by the Lord Chancellor on the advice of local advisory committees. Without the benefit of an advisory committee he appoints, for instance, High Court judges, circuit judges and recorders. He also has the power to remove members of the judiciary below tkc status of superior court judges.

While an adherence to the doctrine of separation of powers would imply the disconnection of the judiciary and the legislature this is not found with regard to the role of the Lords of Appeal in Ordinary. The Law Lords can and do play a part in the proceedings of the upper chamber, and while it used to be correct to say that they avoided politically controversial issues, this is not now strictly the case. The response of Lord Taylor, the then Lord Chief Justice, in 1996 to the Home Secretary’s proposed reform of sentencing casts doubt over the previously accepted view.

Considering the above discussion then how may Lord Diplock accurately state that ‘the British constitution is firmly based upon the separation of powers’ (see Duport Steel v Sirs (1980))? Presumably what is meant by this statement is the adherence to the concept of the independence of the judiciary. The Act of Settlement 1700 provided that the superior court judges should hold office upon ‘good behaviour’ rather than the ‘King’s pleasure’ as had been the case. The independence of the judiciary and the inability of the executive to remove them is one of the hallmarks of the separation of powers. Since 1700 superior court judges can only be removed by the Crown on an address presented to it by both Houses of Parliament. It has to be said, however, that circuit judges and recorders may be removed from office by the Lord Chancellor for ‘inability or misbehaviour’.

Also, in accordance with the separation of the judiciary from the legislature and the executive is the statutory prohibition of full time members of the judiciary from the House of Commons: House of Commons Disqualification Act 1975.

All of the above, of course, is based upon the conventional (in the technical sense) role of the monarchy. While the Queen is forbidden to enter the House of Commons this is of little or no practical significance as her ministers dominate the chamber. One may conclude that although under the Westminster model the theory of separation of powers is more honoured in the breach than the observance, nevertheless the adherence to the practice of the independence of the judiciary has meant that the courts may maintain an independent and separate existence from the law-makers.