Overlap in the UK

Question 1

Overlaps between the EXECUTIVE and the JUDICIARY (3 Points)

Answer 1

• law officers of the crown are positions held by the attorney general and the solicitor general who are members of the government who also perform judicial function.
• the creation of numerous tribunals under statute, which have been defined as ‘bodies outside the hierarchy of the courts with administrative or judicial functions’
• some disputes between private individuals and executive authority can only be determined by a minister, such is the case in relation to planning permission by a local authority (executive performing a judicial function)

Question 2

Overlaps between the JUDICIARY and the LEGISLATURE (5 Points)

Answer 2

• the house of lords WAS the superior court of law AND the second chamber of our bicameral legislature prior to the opening of the supreme court in 2009 (which has clear separation of power implications)
• before the supreme court the most senior judges sat in the legislative chamber of the house of lords as ‘cross benchers’ exercising legislative and judicial functions achieved by convention/habit/custom
• the judiciary performs a legislative role through the process of legal precedent, i.e. courts make the law in the sense that they develop principles of common law
• parliament acts as a ‘court’ when regulating, controlling and disciplining its members and its own internal affairs
• the house of commons retains the right to punish strangers who offend it in some way (though this is rarely used nowadays)

Question 3

Constitutional Reform Act 2005 (3 Points)

Answer 3

• s.3 - places a legal duty on government ministers to uphold the independence of the judiciary from both parliament and the executive
• s.23 - the creation of the supreme court, the judicial function of the house of lords is now separated from parliament by the creation of a new supreme court
• Part3- an independent commission is established, responsible for selecting candidates to recommend for judicial appointment (prior to 2006 judicial appointments were made on recommendation of the lord chancellor who was also a minister)

Question 4

Lord Chancellor (7 Points)

Answer 4

• the office of lord chancellor (olc) was traditionally considered one of the most important examples of fusion of powers
• lord chancellor previously spanned three state institutions:
  ▪ politically appointed member of the cabinet (executive)
  ▪ speaker in the house of lords (legislature)
  ▪ head of judiciary
• much criticism was aimed at this ‘major breach in separation of powers and ‘raised doubts about the independence of the judiciary’
• the constitutional reform act has reformed office of lord chancellor- which remains in name but powers now reduced
• post combined with secretary of state for Justice(now known as the secretary of state for constitutional affairs)
• lord chancellor no longer has judicial functions or acts as speaker in house of lords
• the judicial functions of the lord chancellor are transferred to the president of the courts of england and wales (the lord chief justice becomes the president)