4 - Separation of Powers

Question 1

What is the separation of powers?

Answer 1

The concentration of all state powers (judicial, executive, legislative) in the same hands can lead to inefficient or unjust governance.

Constitutional theorists argue for separation into distinct branches for an ‘efficient’ and ‘well-arranged’ constitution.

Liberty is protected when these powers are separated, and combining them could end liberty.

Question 2

How does the separation of powers function in practice?

Answer 2

The separation of powers is a theory or ideal; its implementation varies between states and political cultures.

It addresses whether executive acts are lawful and when courts should interfere with executive decisions via judicial review.

Question 3

How is the separation of powers reflected in the UK constitution?

Answer 3

The UK’s uncodified constitution evolved over centuries and does not strictly adhere to the separation of powers.

Overlaps exist, e.g., government ministers (executive) are often MPs (legislature). Example: Michael Gove is both an MP and a Cabinet Office Minister.

Question 4

What roles do the executive, legislature, and judiciary play in making laws in the UK?

Answer 4

Executive: Proposes primary legislation to Parliament and drafts secondary legislation.

Legislature: Decides if executive proposals become law, while MPs can also propose laws via Private Members’ Bills.

Judiciary: Interprets Parliament’s laws and develops common law principles.

Question 5

Do judges in the UK ‘make’ law?

Answer 5

The judiciary’s role is to implement the law through statutory interpretation, but they sometimes develop it.

This leads to debates on ‘judicial activism’ versus ‘judicial restraint’ or deference.

Question 6

How did the courts show judicial deference in Malone v Metropolitan Police Commissioner?

Answer 6

In Malone (1979), the court showed deference to Parliament, ruling there was no right to privacy or prohibition on telephone interception in English law - before the ECHR.

The court held that only Parliament, not judges, could create such rights.

Question 7

What two key points about judicial law-making are illustrated in Gillick v West Norfolk Health Authority?

Answer 7

1. Judges often decide cases that arise without explicit statutory or common law authority.
2. Common law evolves with changing political and cultural climates.

In Gillick, the court ruled that children under 16 could receive contraception without parental consent if they were ‘Gillick competent’, reflecting societal change.

Question 8

What general principle does case law on judicial law-making reveal?

Answer 8

Courts tend not to interfere with areas of government policy, showing judicial restraint.

However, courts protect judicial authority from executive interference.

Key cases:
R v R [1992]: The court overturned the common law principle of marital rape, showing that outdated common law principles can be changed to reflect modern societal values.

Airedale NHS Trust v Bland [1993]: The court ruled on the withdrawal of medical treatment, emphasising that judges should avoid creating new laws on moral issues when society is divided, deferring to Parliament.

R (Evans) v Attorney General [2015]: The court ruled against the executive (Attorney General) for overriding a judicial decision, reinforcing that executive actions are reviewable by courts, protecting judicial authority from executive encroachment.

Question 9

Provide a summary of the separation of powers.

Answer 9

• The separation of powers is a long-established concept.
• There is no clear separation of powers in the UK constitution between the executive and the legislature.
• The role of the executive in law-making is to propose laws.
• The role of the legislature in law-making is to scrutinise and approve (or reject) proposed laws.
• The role of the judiciary in law making is to interpret laws.
• Case law addressing the separation of powers shows that the courts will not encroach on what they see as areas of government policy.
• However, they will protect judicial authority from interference by the executive.
• Parliament can change legislation to respond to an unwelcome decision by the courts.

Question 10

What is the Executive in UK government?

Answer 10

The executive is a more fluid category than the legislature and judiciary.

Executive functions involve the formulation or application of general policy, execution of law, maintenance of public order, management of Crown property, direction of foreign policy, military operations, and supervision of services like education, health, and transport.

The executive’s functions are the residue of government functions after legislative and judicial duties are removed. They include discretionary decisions and law execution.

Question 11

What is meant by the fusion of powers between executive and legislature in the UK parliamentary system?

Answer 11

The UK system shows overlap between the executive and legislature.

The legislature selects the political part of the executive, making the executive dependent on the legislature.

This is often called a “fusion of powers” instead of a separation of powers.

Political parties exercise control over MPs through the whipping system, and the governing party often has large parliamentary majorities under the ‘first past the post’ electoral system.

However, this trend was interrupted in the 2010s by coalition and minority governments.

Question 12

How do the roles of the executive and legislature overlap in the UK?

Answer 12

Political roles in government and Parliament overlap, creating a system of ‘checks and balances.’

Senior government ministers are usually Members of Parliament.

Parliament also confers power on the government through primary legislation, enabling the executive to carry out certain functions.

Question 13

What are the legislative functions of the executive in the UK?

Answer 13

The executive creates secondary legislation under the authority of primary legislation.

This secondary legislation often takes the form of statutory instruments (SIs).

Around 3,500 SIs are made annually, covering areas delegated by Acts of Parliament.

Example: The Secretary of State has the power to make specific regulations, which are governed by the relevant ‘parent’ Act.

Question 14

How does Parliament control subordinate legislation in the UK?

Answer 14

There are three levels of delegation for parliamentary scrutiny of subordinate legislation:
1. No scrutiny: Some powers, like closing roads for development, receive no scrutiny.
2. Negative instruments: These can become law without a parliamentary vote but can be opposed.
3. Positive instruments: Require affirmative approval from both Houses (lords and commons) before coming into effect.

Delegated powers must be exercised by the executive within the scope (‘intra vires’) of the primary legislation.

Question 15

What are the judicial functions of the executive in the UK?

Answer 15

Although overlap with the judiciary is limited, some judicial roles have been exercised by the executive, like the Home Secretary setting tariff sentences.

This power was reduced following cases like R v Home Secretary, ex parte Venables and Thompson [1998] where the Home Secretary was found to have acted unlawfully.

Recent changes have reduced these powers following human rights cases and statutory amendments.

Question 16

What is the role of statutory tribunals in the UK?

Answer 16

Until relatively recently, the executive also had the power to decide some legal disputes through a network of tribunals that were funded and administered by the same government departments against whose decisions they heard appeals.

However, following the Tribunals, Courts and Enforcement Act 2007, tribunals are now administered as part of the court system with a new supervisory body known as the Upper Tribunal.

Question 17

What is the role of the Attorney General in the UK?

Answer 17

• The Attorney General is the government’s chief legal adviser and sits in Cabinet.
• The role includes advising the government and deciding whether to prosecute in individual cases.
• This position can create a conflict between political allegiance and the obligation to provide impartial legal advice.

A notable example of this conflict was during the Iraq war in 2003, when Lord Goldsmith’s advice to the Blair government was questioned in the Chilcot Report.

Question 18

What is the role of the Lord Chancellor in the UK?

Answer 18

The Lord Chancellor is now primarily a government minister responsible for the administration of justice and the court system.

The office no longer holds judicial functions, such as being the head of the Judiciary or Speaker of the House of Lords.

The Lord Chancellor retains a Cabinet position as part of the executive, focusing on political responsibilities rather than judicial oversight.

Question 19

Provide a summary of the separation of powers involving the executive.

Answer 19

• The membership of the executive and of Parliament overlaps to a significant extent, creating a partial fusion.
• The executive exercises the administrative functions of government.
• The executive makes secondary legislation in the form of statutory instruments and regulations.
• The authority for secondary legislation to be made comes from (primary) Acts of Parliament.
• Parliamentary scrutiny of secondary legislation is limited by time and resources.
• The Attorney General’s role can be perceived as political.
• Impact of the Constitutional Reform Act 2005 removed some of the overlaps in the executive and judicial roles of the Lord Chancellor.

Question 20

What is the significance of an independent judiciary in the UK?

Answer 20

The judiciary must be independent from the government to avoid political influence.

Judicial independence has been enshrined since the Act of Settlement 1701, which ensures judges cannot be removed by the government “during good behaviour.”

The Constitutional Reform Act 2005 (CRA 2005), section 3, further guarantees this independence, stating the Lord Chancellor and Ministers must not influence judicial decisions.

Question 21

How did the Constitutional Reform Act 2005 change the UK Supreme Court?

Answer 21

The CRA 2005 separated the highest UK court from Parliament, ending the judicial function of the House of Lords.

The UK Supreme Court was established in 2009, with separate membership and physical separation from Parliament.

The role of the Lord Chancellor, formerly head of the judiciary, was transferred to the Lord Chief Justice, with the Lord Chancellor now holding a purely political role.

Question 22

How did the Constitutional Reform Act 2005 reform judicial appointments?

Answer 22

Before the CRA 2005, the Lord Chancellor, part of the executive, appointed judges, contradicting the separation of powers.

Section 6 of the CRA established the Judicial Appointments Commission, ensuring an independent and merit-based process for appointing judges.

Under section 63, judicial appointments are based solely on merit and good character, ensuring conformity with the separation of powers.

Question 23

What protections exist for judicial pay and tenure?

Answer 23

Security of tenure, initially provided by the Act of Settlement 1701, is now upheld by the Senior Courts Act 1981 and CRA 2005.

Judges of the Crown Court, High Court, and Court of Appeal hold office “during good behaviour” and can only be dismissed by the monarch after an address by both Houses of Parliament.

Judicial officers of lower courts have less security, protected by convention rather than law.

Question 24

How is the political independence of judges in the UK upheld?

Answer 24

Full-time judges are disqualified from sitting in the House of Commons under the House of Commons Disqualification Act 1975.

Parliamentary rules provide Members of the Cabinet and MPs should not criticise the character or motivation of judges, although this convention is not always respected.

Courts cannot inquire into Parliamentary proceedings, protected by Article 9 of the Bill of Rights 1689.

Question 25

What is judicial immunity from civil actions?

Answer 25

Judges are immune from legal proceedings for actions taken in a judicial capacity, even if mistaken, as long as they act in good faith.

In Sirros v Moore [1975], it was held that a judge is protected from personal actions for damages when acting judicially, even if they err in fact or law.

Magistrates have less immunity, being liable for actions outside their jurisdiction if done in bad faith.

Question 26

What is the purpose of judicial review in the UK?

Answer 26

Judicial review serves to:
- Prevent abuse of power by the executive.
- Uphold individual rights.

It examines the legality of executive decisions, focusing on whether decisions were made within the scope of legal powers, not the merits of the decision.

Question 27

What judicial oversight exists for legislation?

Answer 27

Judges cannot review primary legislation, except when it conflicts with retained EU law or the European Convention on Human Rights.

They can issue declarations of incompatibility under the Human Rights Act 1998.

Secondary legislation, however, can be challenged through judicial review, typically handled by the Administrative Court. This court, and higher appeal courts, are able to quash secondary leghislation if it is not created with the necessary legal authority.

Question 28

How does the judiciary show respect for executive decisions?

Answer 28

Courts typically avoid interfering in matters of government policy, especially in areas like national security, in line with the separation of powers.

In Council of Civil Service Unions v Minister for the Civil Service [1985], the Lords upheld the executive’s decision to restrict union membership at GCHQ due to national security concerns, accepting that this was a matter for the executive to decide.

Question 29

How has the concept of justiciability evolved in judicial review?

Answer 29

Modern judicial review allows no power to be inherently unreviewable, whether statutory, common law, or prerogative.

Courts now scrutinise the exercise of public power, ensuring it is within legal boundaries, though certain decisions remain outside their reach due to constitutional or institutional limits.

Question 30

How do courts scrutinise executive decisions?

Answer 30

Courts ensure that even high policy decisions are within legal power and follow procedural fairness.

Though courts avoid reviewing the substance of policy decisions, they may intervene if decisions are irrational or unjustified, promoting a shift from a “culture of authority” to a “culture of justification.”

Question 31

How are court orders enforced against the executive?

Answer 31

In M v Home Office [1994], the House of Lords confirmed that injunctions can be issued against executive officers.

The executive is not exempt from judicial oversight and must comply with court orders, as demonstrated when the Home Secretary was held in contempt of court for ignoring a court order in the case.

Question 32

How does judicial review protect decisions made by Parliament?

Answer 32

In R v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995], the court ruled that the Home Secretary acted unlawfully by introducing a compensation scheme using prerogative power, in conflict with unrepealed statutory provisions.

Judicial review ensures that the executive respects the decisions made by Parliament.

Question 33

Provide a summary of the separation of powers relating to the judiciary.

Answer 33

• The judiciary has been independent from government since the Act of Settlement in 1701
• This independence was arguably further strengthened by the Constitutional Reform Act 2005
• The constitutional place of the judiciary is fundamental to the rule of law
• Judicial independence is protected by independent recruitment, pay, and rules on political involvement
• The constitutional function of judicial review is to restrain the unlawful exercise of executive power, e.g., via judicial review.
• In reviewing the actions of the executive, the judiciary will respect its constitutional role and policy expertise.

Question 34

What is devolution?

Answer 34

Devolution refers to the grant by the Parliament of the United Kingdom of legislative powers to devolved legislatures and administrations, specifically:
- The Scottish Parliament and the Scottish Government
- The National Assembly for Wales and the Welsh Government
- The Northern Ireland Assembly and the Northern Ireland Executive

Question 35

What is devolved legislation?

Answer 35

Devolved legislation is the legislation produced by the devolved Parliaments or Assemblies of Scotland, Wales, and Northern Ireland. Key acts include:
- Devolved legislation in Scotland: Scotland Act 1998; Scotland Act 2016
- Devolved legislation in Wales: Government of Wales Acts 1998 and 2006; Wales Act 2017
- Devolved legislation in Northern Ireland: Northern Ireland Acts 1998 and 2006

Question 36

What are ‘devolved matters’ and ‘reserved matters’?

Answer 36

Devolved matters are areas where decision-making has been delegated by the UK Parliament to a devolved administration, such as education and the environment in Scotland.

Reserved matters are decisions still taken by the UK Parliament, affecting Scotland, Wales, and Northern Ireland, such as immigration, defence, and foreign policy.

Question 37

Why was devolution implemented in the UK?

Answer 37

Devolution aims to decentralise government power, bringing it closer to the people governed to better understand local factors and enhance decision-making.

This separation of powers prevents excessive concentration of power and acknowledges the importance of nationalist opinion in the constituent countries, reflecting strong support for nationalist parties.

Devolution followed public referendums in Scotland, Wales, and Northern Ireland in 1997 and 1998.

Question 38

How is funding allocated to devolved administrations in the UK?

Answer 38

Funding for devolved administrations is determined by HM Treasury, which sets budgets within the public expenditure control framework.

Devolved administrations can allocate their spending within these limits, complying with UK fiscal policy. Local taxes also contribute to their funding. However, funding arrangements are complex and lack transparency, as noted by the Public Accounts Committee in July 2019.

Question 39

What is the Memorandum of Understanding 2012 concerning devolved administrations?

Answer 39

The Memorandum of Understanding between the UK Government, Scottish Ministers, Welsh Ministers, and the Northern Ireland Executive Committee contains non-legally binding principles that govern inter-administrational relations.

It established a Joint Ministerial Committee to:
- Consider non-devolved matters impacting devolved responsibilities
- Discuss the treatment of devolved matters
- Review liaison arrangements between governments
- Address disputes among administrations

Question 40

What is the general legislative rule for devolution in Scotland?

Answer 40

The general rule is that Acts of (the UK) Parliament extend to Scotland only if they deal with non-devolved or reserved matters, such as immigration.

While the UK Parliament can legislate for Scotland, the Sewel Convention states that it will not normally do so without the consent of the Scottish Parliament, indicated through a Legislative Consent Motion.

Question 41

What are the key features of devolution in Wales?

Answer 41

Wales is not a separate legal jurisdiction from England, but applicable law may differ.

The Wales Act 2017 expanded powers under the Government of Wales Act 2006, establishing a ‘reserved matters’ model.

Acts of Parliament apply to Wales if they concern reserved matters, with the Sewel Convention also in effect, requiring Legislative Consent Motions from the Welsh Assembly for UK Parliament legislation on devolved matters.

Question 42

What is the devolution process in Northern Ireland?

Answer 42

The Northern Ireland Act 1998 established devolved institutions, with the Northern Ireland Assembly serving as the unicameral legislature of 90 elected members.

The Assembly operates on a power-sharing model and can legislate only on non-devolved matters.

Like Scotland and Wales, the Sewel Convention applies, meaning that Westminster may legislate on devolved matters only if the Assembly passes a Legislative Consent Motion.

Question 43

What is the role of the Supreme Court regarding legislative conflict in devolution?

Answer 43

The UK Supreme Court is the final court of appeal and has jurisdiction under the Scotland Act 1998, Northern Ireland Act 1998, and Government of Wales Act 2006 to resolve questions regarding the legislative competence of devolved administrations.

It assesses whether devolved legislation falls within reserved matters; if so, the legislation is not law.

Question 44

How are reserved matters analysed in relation to UK Parliament and devolved legislation?

Answer 44

The analysis of reserved matters involves:
1. Identifying the devolved administration in question.
2. Determining the matter area of the legislation (e.g., roads, housing).
3. Checking if the matter is listed as a reserved matter in the relevant Act.
4. Assessing whether legislation from the UK Parliament has legal effect in the devolved administration.
5. If not a reserved matter, UK legislation still applies, but the devolved administration’s consent via Legislative Consent Motion is typically sought.

Question 45

Provide a summary of devolved administrations of the UK, and how they are governed.

Answer 45

The United Kingdom now consists of England, Wales, Scotland and Northern Ireland.

The three devolved administrations are Wales, Scotland and Northern Ireland.

The responsibility for fiscal policy and public expenditure across the whole of the United Kingdom belongs to HM Treasury, but devolved administrations set their own
budgets.

‘Reserved matters’ are areas of government over which decisions are still taken by Parliament at Westminster, even though they have effect in Scotland, Wales and Northem Ireland.

The UK Parliament may still legislate on devolved matters, but it should first obtain the approval of the devolved parliament or assembly first.

The Supreme Court is responsible for determining questions of law relating to devolution.