Separation of Powers Flashcards
What is a Henry VIII clause?
Some Acts contain clauses allowing the executive to amend or repeal provisions in an Act of Parliament using secondary legislation. These are controversial powers as they have the effect of enhancing executive power over the making of laws with very little parliamentary scrutiny.
These clauses are named after King Henry VIII who, by the Statute of Proclamations 1539, gave himself power to make law by royal proclamation.
They are of particular significance in the context of Brexit. The EU Withdrawal Act 2018 provides that laws and regulation made over more than 45 years, while the UK was a member of the EU, will continue to apply now that the UK has left the European Union. This ‘retained EU law‘ will
require further amendment because many of the laws mention EU institutions in which the UK will no longer participate, or mention EU law itself, which will no longer be part of the UK legal system.
They may also contain law that a future government wants to repeal for political reasons.
Therefore, the Act gives ministers so-called ‘Henry VIII powers’ to make changes to both primary and secondary legislation using statutory instruments. These changes can get onto the statute book quicker, as they are subject to less parliamentary scrutiny.
In what ways is there a partial overlap between separation of powers?
The Executive can make law in the form of secondary legislation, as long as Parliament has given prior authority in a parent Act.
* These legislative powers of the Executive can also be extended through the use of ‘Henry VIII clauses’ in legislation.
* Parliamentary scrutiny of delegated legislation is limited by time and resources.
* The Constitutional Reform Act 2005 removed some of the clearest overlaps in the executive and judicial roles, notably in relation to the Home Secretary (in regard to sentencing) and, more generally, the Lord Chancellor.
* The Attorney General’s role remains a source of concern in separation of powers terms as this office has both a political, executive dimension and a legal one.
Is there parliamentary control over subordinate legislation?
There are three ‘levels of delegation’ which determine the level of scrutiny given to delegated legislation.
No scrutiny
Some delegated powers receive no parliamentary scrutiny. For example, an order to close a major road while it is being developed.
Negative instruments
These can become law without a debate or vote in Parliament. They can be opposed and, in theory, rejected but not amended by Parliament.
Affirmative instruments
The most important delegations of power are subject to affirmative resolution. They cannot come into effect until both houses have approved a draft SI in a vote.
Parliamentary committees
Parliamentary committees have a crucial role to play in scrutinising statutory instruments, even if they do not need to be put before the House.
These committees ensure that the delegated legislation is within the power or intra vires delegated in the originating, ‘parent’ Act. (They do not review the merits of the government policy behind the
delegated legislation.)
* 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
Historically, the UK constitution has not only seen incursions of the executive into the legislative sphere, but also the judicial one. Certain aspects of the judicial role can, and have been, exercised by members of the executive, most notably in the past by the Home Secretary. This power derived from both statutory and prerogative sources.
For example, it was the practice for the Home Secretary to have responsibility for setting the tariff sentence for those convicted to be imprisoned ‘during Her Majesty’s pleasure’ (ie indefinitely,
subject to review) under legislation going back to 1933. This sentencing power was most often used in relation to young offenders. Following the murder of James Bulger by two ten-year-old boys in 1993, it was held in R v Home Secretary, ex parte
Venables and Thompson [1998] AC 407 that the Home Secretary had acted unlawfully in
exercising these powers. The judicial power of the Home Secretary to set sentencing in these situations was removed in 2000 and is now the responsibility of the trial judge in accordance with the principle of separation
of powers.
Reduction in overlaps
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.
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.
This represents a further ironing-out of some of the more clear-cut overlaps between the executive and judicial functions in the UK.
This is evident too in the various reforms introduced through the Constitutional Reform Act 2005. These were at least partially inspired by the reforming effect of article 6 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Article 6
requires courts and tribunals to be impartial and independent from the executive. In 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
The Lord Chancellor is the government minister with responsibility for the administration of justice including the administration of the court system.
Historically, this office carried a wide portfolio of responsibilities. However, under the Constitutional Reform Act 2005, the role was reorganised to remove overlaps with the office’s legislative and judicial functions.
In relation to Parliament, the Lord Chancellor ceased to be the Speaker or President of the House of Lords in May 2006. After April 2006 the Lord Chancellor also ceased to be the head of the
Judiciary in England and Wales and the office’s powers of judicial appointment were transferred to the Judicial Appointments Commission.
The office of Lord Chancellor has been retained as an executive Cabinet post. However, both the office and underlying department have been reorganised to reflect the new focus on administration. The department was initially renamed as the Department for Constitutional Affairs. This was further reorganised in May 2007, to incorporate part of the old Home Office
function, and was renamed the Ministry for Justice, with the position of Lord Chancellor being redesignated as Lord Chancellor and Secretary of State for Justice.
The Attorney General
The Attorney General sits in Cabinet as the chief legal adviser to the government. He or she also has a role in deciding whether to bring a prosecution in individual cases.
The nature of this office has given rise to concerns about the possible impact on the doctrine of separation of powers, as a conflict of interest could arise between the inherent political allegiance of any holder of the office and the wider constitutional obligation to give independent, impartial
legal advice to the government.
A good example of this was the controversy surrounding the legal advice given to the Blair government by the then Attorney General, Lord Goldsmith, in the lead-up to the war in Iraq in 2003, which is covered by s 5 of the Chilcot ‘Report of the Iraq Inquiry’.
The Attorney General continues to sit in Cabinet and to advise on legal matters, and the potential for political influence on governmental legal advice remains…
Judicial appointments
The appointments of judges up to and including the High Court were, prior to the Constitutional Reform Act, made by the Lord Chancellor, a member of the executive and the legislature (and formerly also one of the Law Lords). This system was criticised by many as directly contradictory to the spirit of separation of powers.
The Constitutional Reform Act 2005, s 6 provided for the setting-up of an independent Judicial Appointments Commission, intended to improve the quality of the administration of justice and
enhance public confidence in the judiciary. The work of the Commission ensures greater conformity with the doctrine of separation of powers.
Independence of the Commission is ensured by 15 commissioners, comprising a mix of professional, lay and judicial members. Under s 63 of the Constitutional Reform Act 2005, judicial appointments are solely to be based on merit and good character.
Judicial pay and tenure
Judicial security of tenure has been enjoyed since the Act of Settlement 1701, part of the postGlorious Revolution constitutional settlement. This was seen to be vitally important in protecting judges from politically motivated dismissal by the monarchy/executive.
The principle has since been re-enacted in s 11 of the Senior Courts Act 1981 for judges in the Crown Court, High Court and Court of Appeal, and in s 33 of the Constitutional Reform Act 2005 for justices of the Supreme Court.
Both these Acts state that judges hold office ‘during good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament. The statutory retirement age for judges is 70. Judges are paid a salary by the Ministry of Justice, the amount of
which is determined by an independent pay review body. 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 are disqualified from sitting in the House of Commons under the House of Commons Disqualification Act 1975.
* Parliamentary rules provide that Members of the Cabinet and MPs should not criticise the character or motivation of judges, although this convention is not always respected.
* Courts also lack jurisdiction to inquire into proceedings in Parliament. This long established and important principle of ‘parliamentary privilege’ is enshrined in Article 9 of the Bill of Rights 1689.
Judicial immunity from civil actions
Judges are immune from legal proceedings for actions that would otherwise be tortious (for example defamation), as long as the action is done in a judicial capacity in a court of justice. For example, a judge would not be immune when commenting to the media.
The extent of the immunity of magistrates is less than that of other judicial office holders, as 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.
In Sirros v Moore [1975] QB 118 it was held that a circuit judge was entitled to immunity from liability in a civil action for damages, because the acts complained of were done by him acting in his capacity as a judge, in good faith, albeit mistakenly.
Per Lord Denning MR and Ormrod LJ:
As a matter of principle every judge of the courts in this land, from the highest to the lowest, should, when he is acting judicially in the bona fide exercise of his office, be protected against personal actions for damages, even where he may be mistaken in fact or ignorant in law.
Hearings in private
Some hearings are permitted to be conducted in private. In summary, these include those listed below.
Under Civil Procedure Rule 39.2:
* If publicity would defeat the object of the hearing. This ground is commonly used in
applications for a freezing injunction or a search order.
* If it involves matters relating to national security (evidence may also be withheld, under the ‘closed material procedure’).
* If it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality.
* If a private hearing is necessary to protect the interests of any child.
Judicial law making?
Deference to the legislature but also:
Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.
* A feature of common law is that it develops with the changing political and cultural climate.
Judiciary checking the executive
There is no clear delineation between the role of the judiciary and executive in the UK.
* The courts can review secondary legislation and have limited powers under the HRA to determine the compatibility of all legislation, but they cannot invalidate primary legislation.
* The courts exercise scrutiny over the legality of governmental actions through judicial review.
* The executive has to act within its powers and also to respect the jurisdiction of the courts and the authority of court orders.
* The judiciary acts as a constitutional guardian of the role and function of Parliament in the face of executive overreach.
* In matters involving the rationality of governmental decisions the courts will defer in areas involving national security, and social and economic policy.
