(3) Division of Institutions

Question 1

What examples are there in the UK Constitution of institutional overlap of the governing bodies?

Answer 1

• The Cabinet (core executive) are drawn from the ranks of Parliament
• The Monarch retains residual presence across all three branches
• Historically the Lord Chancellor enjoyed legislative, executive and judicial roles
• The Appellate Committee of the House of Lords was a committee of the upper house of Parliament

Question 2

How did the position of Lord Chancellor represent a challenge to the separation of powers doctrine in the UK?

Answer 2

Up until it’s reform in 2003 whoever held this role was effectively a member of all three branches of government - it was considered a ‘living refutation of the doctrine of separation of powers in England’.

Question 3

What were the arguments in favour of the Lord Chancellor role?

Answer 3

The Constitutional Reform Act 2005 reformed the position but up until this point defences of the role had been made by those claiming it was ‘the natural conduit for communications between the judiciary and the executive, so that each fully understands the legitimate objectives of the other’ – Lord Irvine.

Question 4

How did the role of the Appellate Committee represent a challenge to the separation of powers doctrine?

Answer 4

Up until it was replaced by the UK Supreme Court in 2009 the Appellate Committee of the House of Lords were a committee of the upper house of parliament that were also tasked with administration of judicial functions.

Question 5

What were the arguments in favour of the Appellate Committee?

Answer 5

The ‘extensive judicial experience’ the Law Lords provided to the House of Lords, enabling them to ‘clarify legal points or help identify issues which require decision’ defend the position somewhat. Also, there was said to be a conferred benefit to the Law Lords by understanding the process through which the legislature created new laws and the considerations they made in doing so which they could usefully utilise in their adjudicative roles.

Question 6

How did the Senior Law Lord attempt to make the overlap more tolerable?

Answer 6

He sought to clarify how the roles of legislator and adjudicator were to be kept distinct, telling the committee – ‘do not think it appropriate to engage in matters where there is a strong element of party-political controversy’ and reminding them to ‘bear in mind they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House’.

Question 7

How is the position of the monarch problematic to the separation of powers doctrine?

Answer 7

The Queen retains a constitutional presence in respect of all three branches of government. Legislation cannot come into effect without the Royal Assent and it is the Queen who possesses the legal power to summon and prorogue Parliament.
Members of the Cabinet and other Ministers of the Crown are appointed by the monarch and exercise executive functions on her behalf.
The residual role of the monarch in the judicial branch is evident from the fact that the High Court and Court of Appeal are housed in the Royal Courts of Justice and Judicial Review actions reflect the historical view that the function of controlling governmental activity was a matter for the Royal Prerogative.

Question 8

What serves to make the position of monarch more tolerable to the separation of powers theory?

Answer 8

In many instances the role of the crown is a wholly symbolic or residual one, furthermore, in some cases Conventions serve to significantly weaken the ability of the monarch to exercise her authority in each branch of government.

Question 9

In which case does Adam Tomkins suggest the problem of constitutional coherence is highlighted?

Answer 9

M v Home Office …

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Question 12

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Question 13

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Question 14

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Question 15

To what extent is the judicial role in the UK fused with the other institutions?

Answer 15

The Judicial branch of the UK Constitution is, in the main, functionally and institutionally separate from the legislature and executive.

Question 16

Which other doctrine promotes the importance of an independent judiciary?

Answer 16

Judicial independence is also supported by the rule of law.

Question 17

What did Hartley and Griffith say about judicial independence in the UK?

Answer 17

They said it is the one aspect of the separation of powers that is accepted in the British constitution’.

Question 18

Where does further support for the importance of judicial independence come from?

Answer 18

Constitutionally significant legislation dating back hundreds of years can be seen to provide support for an independent judiciary – Magna Carta 1215 – ‘royal government must function both through judicial processes and with the counsel of the great men of the kingdom’.

Question 19

What other legislation supports the independence of the judiciary?

Answer 19

The Constitutional Reform Act 2005 obliges Ministers of the Crown to ‘uphold the continued independence of the judiciary’ and the House of Commons Disqualification Act 1975 disqualifies judges from membership to the House of Commons.

Question 20

What conventions support the independence of the judiciary?

Answer 20

It is a Convention that judges insulate themselves from party politics by resigning any membership of a political party upon appointment, Conventions also protect judges from direct and personal criticisms from ministers in relation to judicial decisions made.

Question 21

How does the common law support the independence of the judiciary?

Answer 21

The common law on judicial bias makes clear that judges should be independent of the parties to a case, and may be automatically disqualified from sitting if they are found to have a financial or non-pecuniary interest in a given case.

Question 22

How has the HRA 1998 impacted upon judicial independence?

Answer 22

The HRA 1998 has bolstered the requirement that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ by introducing Article 6(1). The case law of the ECHR indicates that there is a requirement not only that the judiciary are independent from the parties of the case but that they’re independent from the executive also.