PL6: Separation of Powers Flashcards
Lord Acton:
‘Power tends to corrupt; absolute power corrupts absolutely.’
Aristotle stated in The Politics (384-322 BC):
The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.
Montesquieu
Liberty would be best protected in a state if there was a separation
of powers into judicial, executive and legislative branches.
“When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty […]Any society in which the safeguarding of rights is not assured, and the separation of
powers is not observed, has no constitution.”
Separation of powers in practice
- Theory or an ideal; different political cultures have differing perspectives
US has a strong separation of powers
- Complete separation in US between Executive and Legislture.
- No simultaneous membership of gov & Congress
- Notable “check and balance” between the two political wings of the state.
Separation of powers in the UK
- Lack of clear-cut rules and delineations between responsibilities of the three bodies.
- Three bodies of state are not “equal” - parliamentary sovereignty
Institutional Overlaps
- The lack of design to the UK constitution has meant that there have historically been significant functional overlaps between all three bodies.
- How far does this ‘fusion’ still impact on the efficiency of and balance to the constitution?
The Judicial Role
- What power does the judiciary have to scrutinise and control the actions of the executive?
- To what extent, if at all, can the judiciary ‘make’ law?
What is the executive
Residue of functions of government after legislative and judicial functions have been taken away
- Execution of law and policy, maintenance of public order, management of Crown property, foreign policy, military operations ….etc
Fusion of powers?
- Considerable degree of overlap in terms of personnel
- Result of the UK being parliamentary rather than presidential system.
- Parliamentary system, legislature selcts and contains the political part of the executive branch
Walter Bagehot
The English Constitution 1867
Overlap due to UK constitution being a parliamentary, as opposed to a presidential, system.
Dangers of fusion of powers
- Traditionally strong degree of control exercised by political parties over their MPs through the whipping system.
- Large parliamentary majorities in a “first past the post” electoral system
Hung Parliaments
UK’s Changing Democracy (2018) Artemis Photiadou and Patrick Dunleavy
‘Westminster system’ of disproportional elections producing ‘strong’ majority governments, and the associated ‘British political tradition’ look more suspect than ever before.
Overlapping Roles
- Senior Gov ministers are by convention also MPs
- Parliament through the enactment of primary legislation, confers powers on the government.
Legislative function of the executive
Exec can create secondary legislation, as long as it has the authority to do so from primary legislation.
Secondary Legislation: Takes form of rules, orders and regulations, largely created as SIs.
Acts of Parliament
Primary Legislation - gives Secretary of State power to make secondary legislation
Statutory Instruments
These contain the Secretary of State’s further rules on the specific area identified in the ‘parent’
Act of Parliament.
Henry VIII Clauses
- Clauses allow the executive to amend or repeal provisions an Act of Parliament using secondary legislation.
- Controversial powers as they have the effect of enhancing executive power over the making of laws with very little parliamentary scrutiny.
Why are they called Henry VIII clauses?
Named after King Henry VIII who, by the Statute of Proclamations 1539, gave
himself power to make law by royal proclamation.
Henry VIII Clauses in context of Brexit
Parliamentary Control over subordinate legislation
Three levels of delegation:
1) No scrutiny
2) Negative instruments
3) Affirmative instruments
Vires
Power
Intra vires
Done within the given power and is therefore lawful.
Every delegated or subordinate power must be exercised intra vira.
Ultimately the Administrative Court is who decides if the regulation is intra vit
ultra vires
‘outside’ the given power, and therefore unlawful.
Parliamentary Committees
Scrutinise statutory instruments
Ensure that delegated legislation is within the intra vires “parent” Act.
Delegated Powers and Regulatory Reform Committee (House of Lords)
Examines delegated powers in primary legislation to see what powers ministers are asking for (before the primary
legislation is debated in Parliament).
Merits of Statutory Instruments Committee (House of Lords):
Examines the secondary legislation which results from the exercise of those powers.
Joint Committee on Statutory Instruments:
Ensures that each SI complies with the
requirements of the parent Act.
Judicial Functions of the Executive
Judicial power of the Home Secretary to set sentencing in these situations was removed in
2000
R v Home Secretary, ex parte
Venables and Thompson [1998] AC 407
Reducing overlaps - Tribunals
Tribunals, Courts and Enforcement Act 2007
Tribunals are now administered aspart of the court system with a new supervisory body known as the Upper Tribunal.
Reducing overlaps - CRA 2005
- Inspired by ECHR: Article 6
requires courts and tribunals to be impartial and independent from the executive.
McGonnell v UK (2000) 30 EHRR 289
The trial judge, known as the Bailiff, also played a role in the Guernsey legislative assembly and so was not deemed sufficiently independent, representing
a breach of article 6.
The Lord Chancellor
- Gov Minister responsible for admin of justice & courts
- CRA 2005 removed overlaps with the legis & judicial functions.
- Ceased to be Speaker or President of the HoL in May 2006.
- Ceased to be head of Judiciary; transferred to the JAC
- Now retitled Lord Chancellor and Secretary of State for Justice.
Attorney General
*Always sits in Cabinet; chief legal adviser to the gov.
* Role in whether bring prosecution in indiv cases.
* Impact on separation of powers; COI could arise between the political allegiance and need to give independent, impartial legal advice.
Advice give to Blair by Lord Goldsmith
Lord Goldsmith gave legal advice given to Blair as Attorney General lead to the war in Iraq
**s5 of the Chilcot “Report of the Iraq Inquiry”
A separate judiciary
Halsbury’s Laws of England, Vol 20, Chapter 1 (1) para 9
By virtue of rules of strict law, constitutional conventions, political practice, and professional tradition, the judiciary is substantially insulated from political influence.
Independent Judiciary
Section 3 of the Constitutional Reform Act 2005 puts constitutional principle of independent judiciary on a statutory footing.
Guarantee of continued judicial independence.
Constitutional Reform Act 2005
- Highest Court in the UK was House of Lords, regulated as the Appellate Committee in 1876
- The highest appeal committee was institutionally part of the legislature.
- Law Lords were allowed to contribute to debate in the chamber of the House of Lords and to vote for legislation.
*CRA 2005: UKSC established as a separate institution from Parliament
UKSC is based out of:
- Middlesex Guildhall
- Westminster Square
Judicial Appointments
- Following the CRA 2005, appointments are made by the Independent Judicial Appointments Commission.
- 15 commissioners comprising of professional, lay and judicial members.
- s63 CRA 2005, appointments are made on the basis of merit and good character
Judicial Tenure
- Judicial security of tenure - since the Act of Settlement 1701 - protects against politically motivated dismissal by the Exec.
- Re-enacted in s 11 of the Senior Courts Act 1981 for judges in the Crown Court, High Court and Court of Appeal
- s 33 of the Constitutional Reform Act 2005 for justices of the Supreme Court.
- Retirement age is 70
Judicial Pay
- Judges are paid by salary by the MoJ
- Amount determined by independent pay review body.
Judicial officers of other courts
Judicial officers of other courts, including magistrates, coroners, and tribunal members enjoy less security, and their independence is protected by convention rather than by law.
Political Independence of Judges
- Full time judges disqualified from HoC
(House of Commons Disqualification Act 1975) - Cabinet and MPs should not criticise judges
- Courts lack jurisdiction to Inquire into proceedings in Parliament.
Courts lack jurisdiction to Inquire into proceedings in Parliament.
- Important principle of “parliamentary privilege”
- Enshrined in Article 9 of the Bill of Rights 1689
Judicial immunity from civil actions
- Judges immune from legal proceedings for actions that would otherwise be tortious (eg defamation) if action is done in a judicial capacity
Extent of the immunity of magistrates
- Less than that of other Judicial Office holders
- Magistrates may be liable for acts outside their jurisdiction
(eg imposing a sentence that they do
not have power to impose) … if it is proved that they acted in bad faith.
Sirros v Moore [1975] QB 118
- A circuit judge was entitled to immunity from liability in civil action for damages, because the acts were done by him acting as a judge and in good faith
Open Justice
- Trials should occur in public
- Justice to be seen to be done
- Only be heard “in camera” in certain cases.
Artc 6 ECHR - Right to a fair trial … includes public scrutiny.
Hearings in private
Civil Procedure Rule 39.2
* Publicity would defeat the object of the hearing (eg freezing injunction)
* Matters of national security
* Confidential information
* Protect the interests of any child
Act of Settlement in 1701
Protection of security of tenure for judges
Open Justice is important …
Open Justice is important wherever possible to maintain public confidence in the judiciary and the accountability of judges
Duport Steels v Sirs [1980] 1 WLR 142:
[the constitution] is firmly based on the separation of powers; Parliament makes the laws, the judiciary interpret them.
Law in the UK derives from…
Law in the UK derives from:
- Statute
- Common Law
How have judges made law?
- Private Law - such as negligence
- Est core principles
Making laws
An inflexible theory of the separation of powers would suggest that law-making should solely be a matter for the legislature.
Each of the three organs of state have a role to play in making laws
- The Executive: Proposes primary legislation; drafts secondary legislation
- The Legislature: Proposes primary legislation; decides whether it becomes law
- The Judiciary: Interprets Parliament’s intentions and develops the common law.
Judges making law
- Courts interpret statue
- Constitutional responsibility of the judiciary
- A fine line between developing the law and making it.
- The courts are accused sometimes of Judicial activism
Shaw v Director of Public Prosecutions [1962] AC 220
- Shaw wanted to publish a directory of prostitutes
- Advised by his lawyer that publication would amount to a criminal offence.
- “Conspiracy to corrupt public morals”, even though there was no such statutory offence such a conviction unprecedented.
Shaw v Director of Public Prosecutions:
House of Lords
Courts had “residual power to enforce the supreme and fundamental purpose of the law to conserve not only the safety and order but also the moral welfare of the state”
Created new offence it capacity of “curos morum”
What is the opposite of Judicial Activism
Judicial Deference
A more cautious attitude on the part of the courts who may choose to defer to Parliament
Malone v Metropolitan Police Commissioner [1979]
Police intercepted telephone conversations.
* No prohibition on interception of telephone calls
* No right to privacy in English Law (ECHR not applicable at this stage)
* “No new right in law … can spring from the head of a judge deciding a particular case: only Parliament can create such a right” (Robert Megarry)
Grillick v West Norfolk Health Authority 1986 illustrates
- Judges in senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.
- Common law develops with the changing political and cultural climate
Malone v Metropolitan Police Commissioner [1979]
Asked to rule whether children under 16 could be given contraception without knowledge of parents.
Minor was sufficiently mature enough to consent to medical treatment - Gillick competence
No prior authority on the point
Lord Denning on Gillick Competence
“the common law can, and should, keep pace with the times”
Lord Scarman’s warning
Judges “failing to keep the law abreast of society in which they live and work”
R v R [1992] 1 AC 599.
Judicial activism
Law Lords overturned an apparent common law principle that by virtue of marriage a women consents to have sexual intercourse with her husbands.
* Wording could be interpreted to overturnt he existing archaic common law principle
R v R; Lord Lane CJ
Duty of the court to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment
Airedale NHS Trust v Bland [1993] AC 789.
1989 Hillsborough football disaster.
Family applied to courts to lawfully withdraw treatment
* Best interests of the patient
* Distinction between actions and omissions
Airedale NHS Trust v Bland [1993] AC 789 -emphasis.
Desirability for Parliament to legislate on novel matters of policy.
Lord Browne-Wilkinson in Bland
It is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges’ moral stance when society as a whole is substantially divided on the relevant moral issues.
Determine whether particular case is in accordance with existing law.
https://judicialpowerproject.org.uk/
Interventionist view of modern courts
Burmah Oil Company (Burma Trading) Ltd. v Lord Advocate [1965] AC 75.
Oil fields in Burma had been destroyed by British forces during the Second World War. The law lords decided that compensation should be paid to Burmah Oil, on the basis that the destruction was equivalent to an act of requisitioning in wartime, for which compensation should be payable. Following this judgment, however, Parliament passed the War Damage Act 1965, which exempted the Crown from paying compensation for property damage or destruction in war.
Parliament’s form of constitutional safety mechanism
If Parliament considers Courts have exceeded their authority, Statutory Law has a higher status than common law
Courts can be overidden by passing legislation.
Tension caused between three bodies of state due to
Absence of clear delineation between responsibilities.
Most acute between judiciary and executive
Constitutional principle of the rule of law
Judiciary are the acknowledged guardians.
More pronounced in recent times.
Judicial oversight
- No power to scrutinise proceedings in Parliament or review primary legislation
- Exemption: If incompatible with ECHR may make a declaration to effect under s4 of the Human Rights Act 1998
- Administrative Court can quash primary legislation
Purpose of Judicial Review
- Prevent abuse of power by the Executive
- Uphold individual rights or interests
Judiciary has played an increasing role in checking on the executive….
… through the use of judicial review.
LEGALIRY
Executive ignores/overrides court orders or decisions
- Form of disrespect for their constitutional role
M v Home Office [1994] 1 A.C. 377
Judicial Order made by HC preventing removal of M (asylum seeker from Zaire)
Home Secretary ignored order and deported
* Led to CoA found an interim injunction could be made against the Crown.
* Home Secretary had been in contempt of court for ignoring it
M v Home Office - appeal established
Injunction can be made against the Crown.
Reversed the previous position that an injunction could be made.
Crown is subject to the rule of law
Legal order cannot be disregarded by any other than a Higher Court
R (Evans) v Attorney General [2015] UKSC 21
Black spider memos
FOIA 2000 application
* Upper Tribunal determined that “advocacy correspondence” should be disclosed.
* Attorney Genral issued a certificate overriding UT decision.
* SC found against the AG
SC found against the AG R (Evans) v Attorney General [2015]
‘contradicted the
fundamental principle that a court’s decision could not be ignored or set aside by anyone,
including the executive, and that the executive’s actions were reviewable by the court’.
Judiciary’s role - R v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995]
- Judiciary protect Parl from Exec Encroachment
R v Secretary of State for the
Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513.
- Home Sec announced intention not to bring into force a statutory compensation scheme for criminal injuries - that had been approved by Parliament
- Instead tried to introduce a “radically different” scheme utilizing prerogative power
Abuse of prerogative power, bypassing the will of Parliament
–R (Miller) v Secretary of State for Exiting the European Union [2017]
R (Miller) v Prime Minister/Cherry v Advocate General [2019] UKSC 41
Advice given by the PM to the late Queen to prorogue Parliament was unlawful.
Case was justiciable
Significance of Miller 2
- prorogation order was therefore declared void.
- UKSC saw its role as providing a constitutional safeguard to protect
Parliament against an executive over-reaching its authority (and its use of prerogative power).
ex p FBU
Home Secretary had been seen as bypassing the will of Parliament
Miller 2
Disregard for constitutional norms to prevent Parliament from carrying out constitutional functiosn
Variable Intensity of Review
Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374
- Dec 1983 the Prime Minister, with no prior consultation, altered the conditions of
service, forbidding membership of Trade Unions. - Law lords est courts have power to review.
- National security outweighed fairness - up to executive to weigh.
