Chapter 4: Seperation of Powers

Question 1

What is the meaning of the doctrine of seperation of powers by Bradley and Ewing

Answer 1

• Same person should not be a part of more than one organ of government
• One organ should not control or interfere with the work of another
• One organ should not exercise the functions of another

Question 2

What is the history and the development of SOP

Answer 2

1. During the English Civil War (1641-51), there was only division between Crown and Parliament During the war King Charles I had many armed conflicts between his supporters, and Parliament forces was led by Oliver Cromwell.
2. Because of this Charles tried to rule without convening (come tgt with) parliament. Resulting in the need to increase revenue to run the country without Parliament’s approval for general taxation
3. In 1649, Charles I was executed for treason (overthrowing government for war). And for 11 years country was ruled without a king
4. 1660, restored by King Charles II
5. Today, it evovled into the current 3 organ format; and the system is called the ‘Westminster model’

Question 3

What are the functions of each organ

Answer 3

• Legislation - Makes legally binding laws that are bound to people generally (caveat with Bingham’s postualte)
• Executive - Deals with foreign relations, military action, administration, developing national policy on a wide range of subjects
• Judiciary - Applying the law to resolve civil disputes and criminal law

Question 4

What is Hilaire barnett’s view on the doctrine of SOP

Answer 4

The idea isin’t to isolate them from each other, but rather to differentiate their ‘primary purpose’ while not significantly encroaching into each other

Question 5

What is the importance of the doctrine?

Answer 5

• Important method to achieve a democratic government and ROL - Henderson
• To protect liberty and a check and balacnce, so that there is no risk of one person abusing power - Montesquieu
• If the powers are allocated sensibly, they would exercise power efficiently - N.W. Barber

Question 6

In what way have the SOP between Executive and Judiciary not been observed

Answer 6

Compostition

Function and powers

Question 7

Compostition not being observed (E and J)

Answer 7

• Judicial Committee of Privy Council is in form of the Executive (E), but is an independant court of law (J)
• Lord Chancellor, who is a member of Cabinet (E), was formerly also head of the Judiciary and (J) entitlted to preside over the HOL in its role as final court of appeal

Constitutional Reform Act 2005 changed to LC remains cabinet minister and function still connects with the judiciary but no longer a judge

Question 8

Function not being observed (E and J)

Answer 8

• Many disputes of public service resolved not in courts (J), but in tribunals (E)
• Judges (J) dragged into political arena (E) by the government to preside over royal commisions, departmental committees and inquieries (Arms for Iraq affiar, the Profumo affair and the BSE chapter)
• R v Secretary of State for Home Department Ex Parte Anderson [2002] - Home Secretary(E) changed to fix the tarrif period for murderers serving life sentence after being able to be reasled by ‘license’. Incompatible with Article 6 of ECHR
• Child Maintenance Enforcement Commission (CMEC) ran by civil servants(E) for getting absent parents to pay child maintenance to parents living with the child in accordance to Child Support Act 1991.
  Welfare Reform Act 2009 gave enforcement agengy under the government powers to enforce payment by confiscating the passports and drivers license. (While all the punishment should be given to the Judiciary (J)??)
• HOL Constituion Committee, regarding the Welfare Reform Bill (2008-2009) in the Ninth Report were unsatisfied that the punishments were held by the E and not the judges themselves

Question 9

How have SOP been observed between the E and J

Answer 9

Function
Influence and Control

Question 10

Function being observed (E and J)

arguments for it being observed

Answer 10

• Tribunals can exercise politcal discretion which would be inaproriate to confer to judges, and do the part of adjuication in this space more efficiently - Bradley and Ewing
• Public inquiries by the executive are decision-making processes which may be taken into the departmental policy rather than judicial application of legal rules. Some matters are better for ministerial decision rather than judicial consideration - bradley and Ewing
• M v Home Office, HOL held ministers and civil servants were subject to the contempt jurisdiction of the courts

Question 11

Influence and Control being observed (E and J)

Answer 11

• Bradley and Ewing: ‘Although judges are appointed by the executive, judicial independence of the judiciary is secured by law, by constitutional custom, and by professional and public opinion.’
• Judiciary has the right to decide claims on judicial review against unlawful acts of government agencies and officials
• R v SSHD, Ex Parte Fire brigades Union - Ministers acted unlawfully by not exercising delegated legislation to rectify the Criminal Jusitice Act 1998 (as they are supposed to). Instead government created a new scheme using royal prerogative, Lords held unlawful that they would never bring/delaying in force the Act.
• Judiciary ascertained (make sure of) whether royal prerogative can be used to change the law of the land without Parliamentary approval, and was held government can’t use RP to trigger Article 50 to leave EU - Miller I
• Judiciary claimed exercise of the executive power, even if statutory or RP by nature would not rule ‘non-justiciable’ matters that invovle high policy. More concerned on the process the executive decisions are made rather than the merits/quality - Miller II

Question 12

In what ways have the SOP between Legislature and Executive not been observed

Answer 12

Compostition
Influence and Control

Question 13

How has composititon of L and E not been observed

Answer 13

• Ministers (E) also double as a member of one of the Houses (L), which means they also have Parliamentary responsibility. By convention, PM (E) has to be a member of Commons(L)
• SOP assumes a situation where decision making in cabinet is relied under Collective Ministerial Responsibility. And that whether Sir Kier Starmer (PM from Labour Party) secured majority on 4th July 2024 election was Prime Ministerial or collective cabinet decision-making?

Cabinet is the connecting link between E and L

Question 14

How has influence and control of L and E not been observed

Answer 14

• HOC (L) basically controls the executive, since it can oust a government (E) by commanding majority on an issue of confidence - Callaghan minority government of 1979
• Also seen with Boris Johnson who was leading minority government, via Fixed-term Parliament Act 2011, to call for early elections on 12 December 2019.

Basically if government has the confidence of the HOC, then they oftentimes have the decisive factor

Question 15

In what way has SOP been observed between L and E

Answer 15

Compositition

Question 16

How has composition between L and E been observed

Answer 16

• LC used to be both, a politically appointed member of Cabinet (E) & the speaker of HOL (L). After CRA 2005 - it’s no longer
• Section 2 of the House of Commons Disqualification Act 1979 - only allows 95 ministers to sit and vote in HOC. ALTHOUGH due to loyal Parliamentary Private Secretaries (25/remaining from HOL), it normally ensures government has support from 120 MPs.
• Aside from ministers, members of Executive (civil service, armed forces and police) are disqualified from the Commons. Only ministers have the privellage of having a dual role with L and E

Question 17

In what ways have the SOP between the Legislature and the Judiciary not been observe

Answer 17

Composition
Influence and control
Function

Question 18

How has composititon between L and J not been observed

Answer 18

1. The head of the judiciary is the Crown who represents the ‘fountain of justice’, and all judicial acts are carried out in the name of the Crown. At the same time, as the King in Parliament, he is a member of the Legislature

Question 19

How has influence and control between L and J not been observed

Answer 19

1. Under the HRA 1998, even though courts are bound by statutes, superior courts may declare an Act to be inconsistent with the European Convention Rights. And may interpret statutes if they find it contrary to human rights (under Section 3 of the HRA).
2. Despite these rights by the HRA, parliament could still derogate from it. A derogation order was made by the Secretary of State for home Department to authorise new powers of detention without trial (Part 4 of Anti Terrorism, Crime and Disorder Act 2001).
3. In this case of A(FC) v Secretary of State for Home Dept. [2004] - the Lords agreed that it was discrimatory and disproportionate. Declaration was made that it was incompaticle with Article and 14 of the ECHR.

• In R (on the application of Cart) v Upper Tribunals and R (on the application of U and XC) v Special Immigration Appeals Commission. The Upper Tribunals and the SIAC were described in legislation as “superior courts of record”. The UKSC held that these both courts were amenable to judicial review.
• Superior Courts view ouster clauses on judicial review very narrowly in that an ouster clause is ineffective if the decision made by the body is in excess of jurisdiction and in fact a nullity (void) - Anisminisic v Foreign Compensation Commisssion.
• R (Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC - Supreme Court considered whether the supervision jurisdiction of the High Court was ‘ousted’ (by Section 67(8) if the Regulation of Investigatory Powers Act 2000). By majority of 4:3, UKSC ruled that RIPA did not oust the supervisory jurisdiction for errors of law.

Only courts with limited jurisdiction (upper tribunal and SIAC is subject to judicial review. Unlike (UKSC & COA) with unlimited jurisdiction

Question 20

How has functions between the L and J not been observed

Answer 20

1. Each House has the power to enforce its own privellages and to punish those found in want.
2. The very doctrine of stare decisis and precedent, bequeaths (gives to) upon the court a quasi-legislative power (to legislate to an extent) albeit narrower than the ability of Parliament to legislate (seen in R v R [1990])
3. Judges have more narrow ability to create law compared to parliament, as parliament may readily change established rules. (courts can only create law retrospective; whereas courts legislate prospectively and retrospectively, or both)
4. Conwat v Rimmer [1968] (HOL) changed that - ** courts might overule a minister’s (E) claim** on the grounds of public interest immunity to withold evidence in civil litigation. (they witheld evidence in Duncan v Camel Laird)
5. Recently, Section 3 of the HRA 1998 has given judges a greater scope in statutory interpretation beyond the traditional rules. (now allows courts to ‘fill the gap’ to go beyond statutes to uphold human rights)

Question 21

In what ways have the SOP between the L and J been observed

Answer 21

Composition
Influence and control

Question 22

How has composittion between the L and J been observed

Answer 22

1. All members of the judiciary are disqualified from the HOC. (in Northern Ireland, the MPs in HOC, HOL, European Parliament, or one of the devolved parliamentary assemblies can’t be a lay magistrate).
2. Prior to this, all Law Lords recevied life peerages so that they take part to some extent, of the HOL’s legislative busines. In Davidson v Scottish Ministers, was held that the Lord’s participation in debates on legislations would give rise to biasedness. And that in ruling judicially, they can not “bring an objective and undistorted judgement to bear on the issue raised.”
3. After the Hunting Bill was debated in 2003, two Law Lords, Lord Scott and Lord Hoffman recussed themsleves in R (Jackson) v AG, as they expressed pro-hunting views. Taking part would have breached Article 6 of HRA (fair trial)
4. Finally, Part 3 of the CRA 2005, created a new Supreme Court for the UK seperate from the HOL. In future, SC justices will not be entitled to receive peerages

• Article 9 of the BOR states that courts should not allow parties to litigation to put in evidence statements made in parliament and evidence given to or reports made by parlaimentary committees (the dicta of Lady Hale P in Miller II)
• First exception is HOL decisions which allows judges to receive evidence in the form of extracts from the Hansard in which the Minister responsible for introducing the Bill to Parliament explains what is intended to achieve. Conditions being:
  1. The statutory provision that court is trying to interpret is ambiguous;
  2. and the Minister’s statement itself is clear
• Second exception is the Defamation Act 1996, allows for individual waiver of privilege by MPs in an action brought against another party outside court or defendant against by the MP

Question 23

How has infleucne and control between L and J been observed

Answer 23

1. Parliament is always supreme - the doctrine of legislative supremacy prevents courts from reviewing the validity of legislations. This somewhat bars the courts from entering the political arena such that they will not be able to pass judgement on matters which truly lie with the executive given their poltical nature
2. Even that the HRA 1998 was drafted conciously to reflect Parliament’s supremacy. Section 3 of the CRA 2005 imposes a duty on the LC and other government ministers to uphold judicial to uphold judicial independence (parliament can just legislate contrary to HRA)
3. Judges have security of tenure (2 reasons) - Act of Settlement 1700 held that judicial salaries are fixed by staute and not left to executive discretion. In the case where E may trim the salary of a judge as a punishment for unpopular decisions.
   Secondly, Section 11(3) of th Supreme Court Act, Section 6 of teh Appellate Jurisdiction Act 1876, and Section 33 of teh CRA 2005 - provides an indirect guarantee of judicial precedent (they can’t be removed by Executives/Crown anymore).
4. It is a rule of Parliamentary Practice that saves the discussion that if it regards subtantive motion, conduct of a judge or judges in general, must not be questioned.
5. Legislative supremacy denies the courts the power to review the validity of legislation. Judges are under a duty to apply interpret the laws enacted by parliament. However, this is subject to courts in relation to ouster clauses in judicial review cases and the ROL.