Seperation of Powers

HILAIRE BARNETT
SEPERATION OF POWERS
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Introduction * The separation of powers is a doctrine which is fundamental to the organization of a state – and to the concept of constitutionalism – in so far as it prescribes the appropriate allocation of powers, and the limits of those powers, to differing institutions * Three essential bodies exist: the executive, the legislature and the judiciary * The essence of the doctrine is that there should be a clear demarcation of personnel and functions between the legislature, executive and judiciary in order that none should have excessive power and that there should be in place a system of checks and balances between the institutions…there will be significant departures from the doctrine under the UK constitution

Historical Developments * The identification of the three elements of the constitution derives from Aristotle there are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; the three elements are the deliberative, the officials and the judicial element. * Montesquieu stressed the importance of the independence of the judiciary when the legislative and executive powers are united, there can be no liberty. There will be no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control. * It has been remarked that Montesquieu’s observations on the English constitution were inaccurate at the time, representing more a description of an idealized state than reality Vile

Contemporary Doctrine * The doctrine would be unworkable under a constitution dominated by the sovereignty of parliament * A complete separation of the three institutions could result in legal and constitutional deadlock. * If hypothetical constitutional arrangements within a state are considered, a range of possibilities exists; * Absolute power residing in one person or body exercising executive, legislative and judicial powers * Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel * Powers and personnel being largely separated with checks and balances in the system to prevent abuse * It is to this third category that the constitution of the UIK most clearly subscribes

Defining the institutions
THE EXECUTIVE * The executive may be defined as that branch of the state which formulates policy and is responsible for its execution * The Crown is the head of the executive

THE LEGISLATURE * The Queen in Parliament is the sovereign law making body within the UK * Membership of the HOL is not secured by election and is accordingly not accountable in any direct sense to the electorate * The House of Commons is directly elected and a parliamentary term is limited under the Parliament Act 1911 to a maximum of years * The House is made up of the majority party * Head of the party will be invited by the Queen to take office as Prime Minister * The role of the official opposition is to act as a government in waiting, ready at any time to take office should the government be forced out of office

THE JUDICIARY * The judiciary is that branch of the state which adjudicates upon conflicts between state institutions between state and individual, and between individuals * Judiciary is independent of both Parliament and the executive * Blackstone observed …in this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown…
APPOINTMENT
* The Lord Chief Justice, master of the Rolls, President of the Family Division, Vice Chancellor, Lord Justices of Appeal and Justices of the Supreme Court are appointed by the Queen under section 10 (1) and (2) of the Supreme Court Act 1981 * Appointments to the High court, the candidate must be a barrister of ten years or a solicitor with rights of audience in the High court, or a circuit judge of two years * For appointment to the Court of Appeal, the candidate must either be a barrister for ten years, a solicitor with rights of audience in the High Court, or a current member of the High Court Bench. * The Lord Chief Justice is the head of judiciary * The Lord Chief Justice of England and Wales, Northern Ireland, and the Lord President of the Court of Session in Scotland may make written representations to Parliament on matters relating to the judiciary or the administration of justice * The Constitutional Reform Act 2005 established a Judicial Appointment Commission which has responsibility for the recruitment and selection of judges for the courts in England and Wales.
TENURE
* Senior judges are given protection under section 11(3) of the Supreme Court Act 1981 which provides that a person appointed shall hold office during good behavior, removable only by Her Majesty on an Address presented to her by both House Of Parliament * Senior judges cannot be dismissed for political reasons * They can only be removed by compulsory retirement. * The Judicial Pensions and Retirement Act 1993 introduces the retirement age of 70, which may be extended to 75 if in the public interest
SALARIES
* Judicial salaries are relatively high, on the basis that it is in the national interest to ensure an adequate supply of candidates of sufficient caliber for appointment to judicial office
IMMUNITY FROM SUIT * All judges have immunity from legal action in the performance of their judicial functions * A judge is immune from the law of defamation * In Sirros v Moore (1975), Lord Denning MR and Ormrod LJ rules that every judge – irrespective of rank and including the lay magistracy – is protected from liability in respect of his judicial function provided that he honestly believed that the action taken was within his jurisdiction * The Crown Proceedings Act 1947 also provides protection for the Crown from liability for conduct of any person discharging ‘responsibilities of a judicial nature vested in him’ or in executing the judicial process

The Office of Lord Chancellor * Prior to the Constitutional Reform Act 2005, the office of Lord Chancellor spanned all three institutions of the state * The Lord Chancellor was a politically appointed member of the Cabinet, the speaker of the House of Lords, and the head of the judiciary * Chancellor represented a major breach in the separation of powers, and could not withstand the allegation that the office raised doubts about the independence of the judiciary * The Constitutional Reform Act 2005 reformed the office of Lord Chancellor in a manner which establishes a clearer separation of powers between the executive, legislature and judiciary * Section 1 of the Act makes explicit reference to the rule, stating that the Act does not adversely affect that principle or the Lord Chancellor’s existing role in protecting the rule of law. * Section 3 of the act imposes a statutory duty on the Lord Chancellor and other ministers of the Crown and those with responsibility for matters relating to the judiciary to uphold the continued independence of the judiciary.

The Supreme Court * Judges elevated to the highest court were made Life Peers under the Appellate Jurisdiction Act 1876, and known as Lords of Appeal in Ordinary, or Law Lords * The constitutional convention which regulated the relationship between the judges sitting in their judicial capacity and the judges participating in the law-making work of impartiality – judges would not participate in party political debate * The Constitutional Reform Act 2005 remedied this situation by creating a Supreme Court physically removed from the Houses of Parliament * Although the name “Supreme Court’ has been adopted, the Court has not been given additional powers and is not equivalent to a Supreme Court under a written constitution. * It has the same powers as the Appellate Committee of the HOL and has no power to invalidate Acts of Parliament

The Relationship between Executive and Legislature; Legislature and Judiciary; Executive and Judiciary
EXECUTIVE AND LEGISLATURE
THE PERSONNEL OF GOVERNMENT * By convention , the Prime Minister must be a member of the House of Commons * Walter Bagehot denounced the theory of the Separation of Powers under the English constitution. * For Bagehot this feature of the constitution had clear merits * To Bagehot the close relationship between executive and parliament represented the efficient secret of the English constitution * Lord Hailsham opposed Bagehot’s view by asserting that the current electoral process which generally but not variable, returns a government with a large majority of seats in Parliament, contributes to what he termed as an elective dictatorship a situation where the executive controls the legislature. * Prima facie, this close union of executive and legislature would suggest that the potential for abuse against which Montesquieu warned exists at the heart of the constitution
STATUTORY LIMITS ON MEMBERSHIP * The House of Common Disqualification Act 1975 preserves the separation between the executive and legislature by providing that certain categories of people are disqualified from holding parliamentary office. * Section 2 holders of judicial office, civil servants members of the armed forces and the police and members of foreign legislatures are debarred from office * Section 2 also limits the number of government ministers in the House of Commons
POLITICAL AND PROCEDURAL CHECKS ON GOVERNMENT * The government is dependent upon parliament for its continuance in office. * The loss of a vote of confidence on a matter of policy is central to a government’s programme will cause the government to fall
THE ELECTORATE * The electorate can also express its displeasure with government policies during a parliamentary term at by-elections and local government elections
DELEGATED LEGISLATION AND THE SEPERATION OF POWERS * Delegated legislation refer to laws, rules and regulations, made by government departments, local authorities and other public bodies, under the authority of an Act of Parliament * By granting delegated powers, parliament is freed from scrutinizing every technical detail of a Bill * AV Dicey approved of delegated powers on this basis. * Chief Justice Hewart criticized delegated legislation as being an abuse of power * The implication of delegated legislation in constitutional terms is that a legislative function is being exercised by the executive and not parliament

LEGISLATURE AND JUDICIARY
RULES AGAINST CRITICISM OF THE JUDICIARY * To reinforce the independence of judges, convention dictates that there should be no criticism leveled at them from members of the executive * Parliamentary practice prohibits the criticism of judges other than under a motion expressing specific criticism or leading to an address to the Crown for the removal of a judge
THE SUBJUDICE RULE * Where proceedings are either before a court or awaiting trial, members of the parliament are barred from raising them in debate * No reference may be made to criminal proceedings rom the time of the charge being made until the final appeal is determined.
PARLIAMENTARY SUPREMACY AND THE JUDICIAL FUNCITON * D of Parliamentary supremacy entails the basic constitutional relegation of judges to parliament * First; it is well established that the sovereign parliament can overturn any court decision by way of legislation * Secondly, the judiciary’s primary role in relation to the interpretation of statutes is to give effect to the latest expression of the will of Parliament * The Human Rights Act was drafted to preserve the balance of power between the judiciary and parliamentary.
JUDGES AS LEGISLATORS * In constitutional terms, the issue is whether by making law (doctrine of precedent) the judges are usurping the legislative function or, in other words, violating the separation of powers * Acts of parliament are supreme and may overturn the common law Burmah Oil v Lord Advocate (1965) * Parliament may also expressly endorse a judicial decision by incorporating it into the statute, as occurred with the amendment to the statutory definition of rape following the HOL’s decision in R v R (1991) * The rules of precedent have been developed by the judges in order to ensure certainty and uniformity in decisions * Decisions of the highest court are binding on all the courts lower in the hierarchy * HOL can go against their own decisions ever since the Practice Statement 1966 * The rules of statutory interpretation are designed to limit judicial creativity * From the separation of powers perspective, judicial law-making should cause disquiet only if judges display overtly dynamic law making tendencies Magor and St Mellons Rural District Council v Newport Corporation (1965)
THE HIGH COURT OF PARLIAMENT * Parliament has the sovereign power to regulate its own composition and procedure * Under parliamentary privilege, parliament has jurisdiction to rule on its own powers. * Parliament cannot, other than an Act of Parliament, extend its own privileges Stockdale v Hansard (1839) * The role of the judges in relation to privilege is to rule on its existence and extent * Privilege will protect the member of parliament from the law of defamation * Privilege also extends to regulating the legislative process

EXECUTIVE AND JUDICIARY
THE ROYAL PREROGATIVE * Being the residue of monarchical power, the prerogative is part of the common law and thus amenable to the jurisdiction of the courts. * The vast majority of prerogative powers are exercised by the government in the name of the Crown. * The substance of many prerogative power is political, entailing matters of policy which the judges are not competent to decide * The traditional role of the courts is to rule on the existence and scope of the prerogative, but to decline thereafter to rule on the exercise of the power. However, in the GCHQ Case (1985), the house of lords made it clear that the courts have jurisdiction to review the exercise of executive power irrespective of whether the source of power is statutory or under the prerogative
LAW OFFICERS OF THE CROWN * The law officers of the crown – AG and solicitor general– are members of the government. * The attorney general may also be a member of the cabinet * Bound by conventions which serve to limit the overlap in functions * Where his consent to prosecution is required, by convention the AG must avoid party political considerations, and may not take orders from government * This is a particularly delicate matter when essentially political prosecutions are being contemplated R v Ponting * Matters that renewed concern over the AG’s office * Legal advice given to the government on the legality of the war in Iraq, and allegations that the AG’s initial advice differed from that which was eventually disclosed to Parliament in 2003 and ultimately published in 2005 * Legality of the decision by the Director of the Serious Fraud Office to discontinue a criminal investigation into allegations of corrupt payments allegedly made by BAE Systems Plc. * In R v Director of the Serious Fraud Office (2008), the Appellate Committee of the House of Lords ruled that the decision of the director was lawful. * The office of AG, as the Iraq War and BAE Systems investigation illustrate, gives rise to allegations that his legal and political roles are insufficiently separated.
JUDICIAL REVIEW * Judicial review (JR) of administrative action is designed to keep those persons and public bodies with delegated powers within the scope of the power conferred upon them by parliament. * If a minister of the crown or a local authority or other public body exceeds the power granted, the courts will nullify the decision taken and require that the decision maker reach a decision according to the correct procedure * JR is concerned with the process by which the decisions are made * The scope of JR has increased since the coming into force of the Human Rights Act 1998 * Section 6 of HRA 1998 makes it unlawful for any public body to act in a way which is incompatible with the Convention rights protected under the Act
JUDGES AS FACT FINDERS * Judges are equipped by training and experience to review evidence with impartiality and rigour and to present findings in a logical manner * Inquiries have been conducted by judges into such diverse matters * Many of these inquiries involve sensitive political issues. As a result, it is inevitable that judges will attract criticism from one quarter or another * To place judges in the position where criticism is likely to ensure is to create the possibility that their independence and impartiality will be damaged * The Inquiries Act 2005 * Section 10 provides that where a Minister proposes to appoint a judge the Ministers must consult, as appropriate, the senior Lord of Appeal in Ordinary, Lord Chief Justice of England and Wales, and Northern Ireland, and Lord President of the Court of Session.