Separation of powers

Question 1

Why have a separation of powers?

Answer 1

• Prevent tyranny (James Madison, Locke, Barendt, Montesquieu, Masterman and Murray)
• Efficiency

Question 2

The Pure Theory

Answer 2

A strict separation of powers between the legislative, exeuctive and judicial branches. One branch should not interfere with the other and they must be institutionally separate, as well as avoiding an overlap in personnel (at all).
The purest (hypothetical) separation of powers is found in the US Constitution in Articles I, II, and III.

Question 3

The partial separation theory

Answer 3

This is the theory administered by the Westminster model and the US Constitution.
Political and legal accountability is better insured through this theory, where each branch wields some power over the other.
In the US, Congress may be subject to a presidential veto, and judicial review by the Supreme Court. The exec powers require assent from Congress and judgments of the Supreme Court can be amended by congress.

Question 4

Governmental institutions

Answer 4

In the UK the word government generally means the party with a majority in the House of Commons. 
However this word is used to encapsulate
- the judicial branch
- the legislative branch
- the executive

Question 5

The executive

Answer 5

Administers the day to day business of governance.
Bagehot: they ‘rule the nation’.
This involves enforcing and executing the law, the maintenace of law and order, design of public policy, defence of the realm and international relations.
In the UK the executive comprises the cabinet (heading by the PM) and is extended to the civil service, police and armed forces.

Question 6

the legislature

Answer 6

The house of commons
Involves 650 elected members representing constituencies in Scotland, Wales, NI and England. The majority of the cabinet is drawn from the commons. This is the efficient secret of the constitution (Bagehot).
The house of lords
the upper house of the UK legislature which represents Britain’s historical monarchical, lordship and commoner divide. It comprises of peers, the majority of which are appointed on a recommendation from the main political parties. The HL is subordinate to the commons.

Question 7

The judiciary

Answer 7

The highest court is the supreme court established in 2009. It hears all types of cases and is split into a myriad of courts and tribunals beneath it.
It provides an independent arbiter between disputes which would be solved otherwise by war.

Question 8

Dividing governmental functions

Answer 8

Each branch has a respective function and each one is carried out by that branch. In the Fire Brigades Union [1995] case it was suggested that such a division is evident in our constitutional arrangements: “It is a feature of the peculiarly British conception of the separation of powers that parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on with the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.”

Question 9

Each branch has a ‘largely’ exclusive domain…

Answer 9

In the british constitution, because it adheres to a partial separation theory, each branch operates to some degree in another branch.

Question 10

Parliament and the exec

Answer 10

Parliament scrutinises the exec in question time.
The exec requires consent of parliament to pass its legislation.
Bagehot: “[t]he legislature chosen, in a name, to make laws, in fact finds its principal business in making and keeping an executive.”

Question 11

Jennings on the separation of powers

Answer 11

No lines could be drawn between governmental activites and the division is largely arbitrary.

Question 12

Delegated legislation

Answer 12

Parliament does not have time to consider every single facet of an act. Thus statutes often contain provisions delegating some legislative capabilities to the executive which are in more detail and more technical. This is a necessary and accepted part of governmental activity, and parliament can remove it if needs be, either through the affirmative resolution procedure or the negative resolution procedure (Statutory Instruments Act 1946). Also the Joint Select Committee on Statutory Instruments provides further parliamentary control in delegated legislation.

Delegated legislation is also subject to judicial review and can be struck down under any head of it (illegality, irrationality, procedural impropriety).

Question 13

Judicial law making

Answer 13

The judges carry out a legislative function in the common through in an incremental manner - it cannot engineer wholesale legal change.
This is based on “two conditions – first, that they do it in the traditional way, i.e. in accordance with precedent, and second, that parliamentary interference should be regarded as unobjectionable.” (Lord Devlin extra judicially).

s3 is the most dramatic way of effecting legislative change - seen in the case of Ghaidan v Mendoza [2004]) where Lord Nicholls stated that the judges have an additional law making power through statutory interpretation. R v A was another case similar to this where the judiciary effectively overrode a statute.

Question 14

Does the UK have a partial separation of functions?

Answer 14

Yes - there is considerable overlap. Barendt argues that this is important and all that is important is that the courts are the ultimate arbiters.

Barendt’s argument that all power ultimately rests in the judiciary receives some countenance in case law. Lord Nolan in M v Home Office [1994] stated that “The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.”

Lord Hoffman went further in R (Prolife Alliance) v BBC [2004] and deemed that the separation of powers ‘is a question of law and must therefore be decided by the courts.’

Question 15

The importance of the separation of powers

Answer 15

According to Diplock in Duport Steel v Sirs [1980] the separation of powers is the basis of the constitution and not the rule of law.

The difficulty of assessing the importance in the UK constitution however is the lack of legal document which creates and binds it. Likewise the fact that Parliament is the sovereign authority breaks the rule of the separation of powers as all powers are actually vested in Parliament.

Question 16

Tomkins’ view of the separation of powers

Answer 16

Tomkins argues that the separation of powers is merely what the parliament of the day decides: It is merely descriptive and not normative.”

He notes that there is a separation of powers and the lines can be drawn between each branch of government. However parliament remains sovereign and can change it if it so chooses.

However the separation of powers is now bound by international obligations (Art 6 of the ECHR) to some degree and thus it is not fair to call the UK separation of powers merely descriptive.

Question 17

Issues in the separation of powers

Answer 17

• the Lord Chancellor
• The Appellate COmmittee of the House of Lords
• The Monarch

Question 18

The Lord Chancellor

Answer 18

The Lord Chancellor used to enjoy legislative, judicial and executive powers but this was removed in the Constitutional Reform Act 2005 as the LC formed the ‘living refutation of the doctrine of separation of powers in England.’ The LC was a judge, a speaker of the House of Lords and head of the government department for legal policy. It was justified on practical grounds as communication between the judiciary and the exec. He affected the independence of the judiciary too which led to the reform act.

Question 19

The Appellate Committee of the House of Lords

Answer 19

This also straddled a separation of powers between the judiciary and the legislature. This was monitored by - admittedly weak - conventions, where “First, the Lords of Appeal in Ordinary do not think it appropriate to engage in matters where there is a strong element of party political controversy; and secondly the Lords of Appeal in Ordinary bear in mind that they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which they might later be relevant to appeal to the House.”

The instatement of the Supreme Court and the removal of judges from the House of Lords occurred in the same reform act.

Question 20

The Monarch

Answer 20

The queen retains a role in all three branches of govt but this is admittedly moot as her role is nominal. The Queen assents to legislation (and has to power to summon and prorogue Parliament), Members of Cabinet exercise their powers on behalf of the Monarch and the judiciary is housed in the Royal Courts of Justice.

Her power, however, is residual. Bagehot: “We have in England an elective first magistrate as truly as the Americans have an elective first magistrate. The Queen is only at the head of the dignified part of the constitution. The Prime Minister is at the head of the efficient part.”

Even though her role is symbolic, Tomkins notes that this creates tension in constitutional coherence as noted in M v Home Office [1994]. The minister in question denied jurisdiction of the courts over him as the courts claimed a contempt of court, and Tomkins notes that the issue resiles ultimately in ‘can the Crown’s courts find the Crown’s ministers to be in contempt of the Crown’s courts? Can one branch of the Crown find that another branch of the Crown in contempt of the Crown?’ This displays the vagueness of the legal status of the crown in government.

Question 21

The independence of the judiciary

Answer 21

While the executive and legislature overlap considerably, the independence of the judiciary is assured and confimrmed in the Constitutional Reform Act 2005.
Dicey noted the importance of an independent judiciary, and the idea stretches back to the Magna Carta. The Act of Settlement 1701 cemented the role of the judiciary as an independent body through security of tenure on good behaviour, setting their salary and requiring approval from both Houses to remove a judge. Only one judge has ever been removed (in 1830 for embezzlement).

It is noted as so fundamental to the constitution that it is a prominent rule of law and separation of powers doctrine that the UK constitution depends on.

Question 22

Protections of the independence of the judiciary

Answer 22

Judges are disqualified from sitting in the house of commons by virtue of the Disqualification Act 1975, they are protected from direct criticism from ministers by convention, they hang up their political affiliations on becoming a judge also by convention, and common law excludes them from sitting in on a case in which they have vested interest of any kind (R v Bow Street Magistrate ex p Pinochet Ugarte (no 2) [2000]).

Question 23

Constitutional checks and balances

Answer 23

Lord Templeman outlines in M v Home Office [1994] that ‘Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law.’

They check and balance each other however.

Question 24

Parliamentary controls on the executive

Answer 24

• Parl has to pass exec laws
• Parl debates scrutinise the exec
• Ministers can be forced to resign after clear failings due to ministerial responsibility
• however exec dominance in the commons precludes many of these checks (Blair had a 172 seat majority).
• Lord Hailsham called the Blair govt an ‘elective dictatorship’ through whipping, exec control of the parliament timetable (thus in practice ministers exercise legal sovereignty)

Question 25

Judiciary on the exec

Answer 25

• judicial review is the prime mechanism
• exec legislation can be challenged on the grounds of illegality, irationality, or procedural impropriety (Diplock in the GCHQ Case [1985]).
• s6 is another check on the exec as it obliges them to act compatibly with convention rights
• nonetheless judicial review is a procedural review and does not analyse the merits of a decision.

Question 26

Judiciary on parliament?

Answer 26

Allan contends that the judiciary exercises a theoretical check on palriament - theoretical because it has not yet been exercising, thus having a chilling effect.