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.
- 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.
- 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
- As regards membership the legislature and judiciary do not overlap significantly, The House of Commons Disqualification Act 1975being 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.
- 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 AAND JUDICIARY
- 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
- 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.
- 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:
- 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.
- 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.
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.
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.
The separation of powers
… 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
-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.
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.
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
– 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 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.
- 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 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  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.
- 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  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  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).