Separation of Powers

Question 1

What is the doctrine of Separation of Powers?

Answer 1

• King, aristocracy and the people share governmental powers.

Question 2

Origins of Separation Doctrine

1. Locke

Answer 2

• “There can be but one supreme power, which is the legislative, to which all the rest are subordinate”
• Locke recognises that both powers can be exercised by the same body or person
• The judicial function is an aspect of executive power for Locke

Question 3

Origins of Separation Doctrine

2. Montesquieu

Answer 3

• ‘the key to England’s political liberty lies in the separation of legislative, executive and judicial power’
• ‘The form of these three powers should be rest or inaction. But as they are constrained to move by the necessary motion of things, they will be forced to move in concert’

Question 4

What is the purpose of the doctrine?

Answer 4

• mutual checks so no monopoly of governmental power

Question 5

Features of Separation of Agencies

Answer 5

• Each branch of the government must be confined to the exercise of its own function
• Each branch must be prevented from encroaching on the functions of other branches

Question 6

Features of Separation of Persons

Answer 6

• The persons compromising the three agencies of government must be kept separate and distinct
• No individual is allowed to be at the same time a member of more than one branch

Question 7

Bagehot’s 19th century view

Answer 7

Thesis: two obsolete doctrines dominate English constitutional thought - mixed/balanced government and the separation of powers

• ‘The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.’
• The Cabinet is ‘a hyphen that joins, a buckle which fastens, the legislative… to the executive part of the State.’

Question 8

Since then: Erosion of balances

Examples

Answer 8

• Royal suspending or dispensing power abrogated by Glorious Revolution Bill of Rights 1689
• Loss of monarchial power of veto (last exercised in 1708)
• Rise of democracy erodes influence of monarchical and aristocratic elements
• House of Lords veto lost in Parliament Act 1911
• The rise of disciplined political parties in 20th century: MPs become subordinate to the leadership, the governing party members to the executive
• ‘Elective dictatorship’ (Lord Hailsham, 1977)

Question 9

CRA 2005

Answer 9

• Judicial Committee of House of Lords power transferred to Supreme Court

Question 10

Pre CRA 2005

Answer 10

• Lord Chancellor:
• Executive, legislative and judicial functions
• Head of Lord Chancellor’s Dept, Speaker of HL, head of judiciary

Question 11

Lord Chancellor Under CRA 2005:

Answer 11

• No longer head of judiciary; cannot sit as judge
• Principle role now = head of Ministry of Justice
• Judicial Appointments Commission (independent of government) elects judges

Question 12

Rule of Law under CRA 2005, s.1.

Answer 12

S. 1
This Act does not adversely affect -
(a) The existing constitutional principle of the rule of law, or
(b) The Lord Chancellor’s existing constitutional role in relation to that principle

Question 13

Separation of Powers - Model 1 US

Answer 13

• established in 1776 + 1789
• prevents arbitrary power
• no overlap - functions, personnel, no interference
• efficient
• rational constitutional design
• congress cannot hold government to account because powers are separated
• no oversight mechanism

Question 14

Model 2 - UK

Answer 14

• established 1689 English Revolution
• checks and balances - all three are needed for balanced constitution
• crown (monarchic) + Lords (aristocracy) + Commons (democracy)
• prevents arbitrary power
• fusion of powers = efficient secret of model 2 because it allows parliament to hold government to account

Question 15

R v SS Home Department, ex parte Fire Brigades Union is an example of what?

Answer 15

Home Secretary stepped outside of role and exercised arbitrary power

Question 16

What is the principle of Government according to law?

Answer 16

Government must be able to identify a law that authorises its action
Ex.
Entick v Carringotn (1765): action for trespass
Lord Camden: ‘If it is law, it will be found in our books. If it is not there, it is not law… The silence of the books in an authority against the defendant and the plaintiff must have judgement.’

Question 17

Lord Ziplock on the Separation of Powers and Rule of Law

Answer 17

‘it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them’.
- DIplock’s idea of the separation of powers reinforces the idea of the rule of law, but it also emphasises that the judiciary should not engage in law-making

Question 18

Dicey’s legacy

Answer 18

Central principle: due to heritage, idea arises that King can do no wrong
ex.
M v Home Office: order to Home Secretary to return deported asylum seeker ignored

Question 19

Do courts have jurisdiction to make coercive powers against ministers?

Answer 19

Crown Proceedings Act 1947, s.21
‘The argument that there is no power to enforce the law by injunction or contempt proceedings would, If upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition that would reverse the result of the Civil War’ (Lord Templeman)

Question 20

Criminal Justice Act 2003, s.269

Answer 20

• Trial judge no longer makes a recommendation, but reach a determination on sentence for murder
• Power no longer rests in hands of Home Secretary
• a vindication of the principle of the rule of law

Question 21

Rule of law and abuse of process

Answer 21

R v Horseferry Road Magistrates’ Court

Held: ‘if there has been serious abuse of power the court should express its disapproval by refusing to act upon it

Question 22

Bi-polar Sovereignty

Answer 22

X v Morgan-Grampain
‘the rule of law rests upon twin foundations: the sovereignty of the Queen-in-Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying them’

Question 23

Common Law as a constitutional principle?

Answer 23

• Entire constitution, including doctrine of parliamentary sovereignty, based on common law (e.g. Jackson v Attorney General, Lords Steyn and Hope)
• The Constitutional Reform Act 2005 s.1
  The Act ‘does not adversely affect… the existing constitutional principle of the rule of law’, the rule of law by virtue of an Act of the sovereign Parliament, had formally been recognised as a ‘constitutional principle’ - Loughlin

Question 24

Two judicial conceptions of RoL

Answer 24

1. Rule of law as rule of rules: one virtue among many that a legal order might serve
   - Axa 2011 Lord Hope
2. Rule of law as the articulation of the rights-based character of a legal order
   - HS2 2014 Lord Neuberger