Separation Of Powers Revision Notes 3h524m

Topic 3 The Separation of Powers revision notes I)

Separation of powers in general

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Developed by Aristotle, John Locke, furthered by Monstesquieu - Idealist description of the English constitution - 3 branches of government (legislative, judicial, executive) to correspond to the three functions - All should be exercised by different people - Legislature and executive should have powers to limit and check one another – notion of ‘checks and balances’ by which the three branches might legitimately influence or even impose certain limits on the actions of one another.

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A political theory, not a legal principle prescribes what ought to happen if a particular goal is to be achieved

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Forms of separation of powers: a) Pure – all 3 functions completely separate b) Partial, based on checks and balances (US)

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Traditionally, the doctrine required a threefold classification of functions - ...but now depends on the arrangements of the state. In UK, the processes of law-making, istration and adjudication are not clearly separated; however, still have to ask whether powers are appropriately allocated and whether effective check mechanisms are in place.

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Bradley and Ewing -> threefold meaning of the doctrine of sep of powers a) The same person should not form part of more than one of the governmental bodies b) Governmental organs should not control or interfere with each other’s work c) One organ of government should not exercise the functions of another

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Why do we need separation of powers? - Montesquieu – principle helps to avoid tyranny - John Locke – principle concerned with efficiency of government and avoidance of tyranny

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Munro - aimed at avoiding absolutism by preventing the monopoly of power

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Critique of the principle of separation of powers - Marshall It’s impossible to define with precision what the exact functions of government are and to determine to whom they should be allocated. Judicial independence is always very important but there is a frequent fusion between legislative and executive branches(as in UK). The doctrine is therefore far to imprecise and incoherent to form the basis in the analysis or critique of the constitution. - John Locke : there are no material differences (only formal and procedural) between legislature, judiciary and executive, so the principle fails to explain why certain tasks should be given to one rather than the other. The principle is irrelevant as a safeguard from tyranny – what prevents it is the democratic control through the House of Commons and the party system.

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Defending the principle of the separation of powers - Barendt: it is possible to define in general the three functions, which are allocated by a constitution to particular bodies or institutions. Such a distribution is enforceable by courts and they are entitled to take the final decision in practice of whether the function is judicial, executive or legislative. - The separation of powers reinforces democracy, since citizens expect that the elected Parliament will take most of the fundamental decisions which affects them and the principle ensures it is so - The allocation of functions is a way for achieving the avoidance of arbitrary government and tyranny. It therefore doesn’t matter so much whether powers are allocated precisely to the right institution. - The pure principle of sep of powers does not take into functions of government which do not fall exactly within one of the three divisions, while the partial sep of powers does. - The principle should hence be explained as a network of rules and branches which ensure that no power of concentration ends up in the hands of one - Madison: The principle does not operate in vacuum and, setting aside its theoretical defects, it can be seen that it helps the courts to protect the individual’s rights and to prevent one branch from accumulating excessive powers. - Bagehot: although there is no effective separation of powers in the sense of checks and balances between legislature and

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executive in UK, but the doctrine plays a role in the UK constitution – its purpose is to protect individual’s liberty (through the division of power) and not identify the best holder for a particular kind of power. Barber: the core of the principle is efficiency, not liberty; pure separation of powers is impractical and some overlap of function (like in UK) is actually welcomed.

ii) Separation of powers in UK 

Legislature and executive - Walter Bagehot: ‘the efficient secret of the English constitution may be described as the close union, the nearly complete fusion of the executive and legislative power’. - Example: Parliamentary executive, which is headed by the ministers (under the Queen as the ceremonial head of state), all of whom are drawn from the legislature and who are also capable of exercising a considerable amount of influence in regards to the proceedings in the elected House. In of personnel, there definitely is a degree of fusion between the executive and the legislature. Bagehot, however, thought it to be good, in that it made the government work better. - Further overlap can be seen in the context of delegated legislation. Under the separation of powers, the constitutional function of the legislature is to enact laws, while the role of executive is to execute and apply it. In UK, the Parliament, through delegated legislation, entrusts a law-making power to executive. Justifiable on practical necessity grounds; however, clearly the separation of powers between legislature and executive is one where the equal powers are counter balanced (Tomkins).

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Legislature and judiciary - Largely separated, at least in so far as personnel is concerned – a judge cannot be a member of the House of Commons - Constitutional Reform Act 2005 abolished the office of Lord Chancellor which could have previously been cited as a classic example of a fusion of powers – this was done to enhance judicial independence and to preserve the sep of powers between the legislature and the judiciary - Vice Chancellor’s role as head of judiciary was also abolished - The dual role of the Law Lords, who until recently sat as Lords of Appeal in Ordinary in the highest court of appeal, in addition to participating in debates and legislative functions of the Upper

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House has been amended by the 2005 Act. Following its implementation in 2009, the Law Lords were removed from the House of Lords and became new justices of the Supreme Court. 2005 Act ensured that Vice Chancellor will only be able to appoint judges as recommended by the newly created Judicial Appointments Commission – this will lessen the executive control of the judiciary Common law – judge made law/ oversteps the legislative function of the legislature ( Lord Steyn in Brown – judges to and must make law in the gaps left by Parliament’. Some matters are particularly thought of as requiring judicial creativity. Lord Goff: the development of law by judges is different from legislation, but although the boundary exists, it varies from case to a case.’ The question is where such boundary has to be drawn. Consider Shaw v DPP – here, the HL essentially made a new offence of conspiracy to corrupt public morals – a decision at odds with the principle of sep of powers.

Judicial independence - Preserves the partial separation of powers - Lord Steyn in Anderson – the constitution never rigidly embraced the principle of separation of powers and the legislature and executive are close. Separation of judiciary and legislative and executive branches is a strong principle of UK’s government system and is enforced through judicial independence, access to justice and the rule of law. - Turpin and Tomkins argue that the courts have only considered the principle of sep of powers as a juridical principle, hence failing to transform it into a general principle of constitutional law - Case example: Anderson; whether it is right for the executive to have the power to determine how long a convicted offender will remain in custody and is the fixing of the tariff a sentencing exercise – the court defended its judicial function, in accepting that the fixing of tariff was a sentencing exercise and should be left up to the courts to exercise. The imposition of a sentence was a part of criminal trial and the Home Sec was not independent of the executive; hence, this was a clear violation of the principle of sep of powers. - Judicial independence is now guaranteed by s3 of the 2005 Act – the first such guarantee in statutory form – it requires the Lord Chancellor to uphold judicial independence and to refrain from seeking to influence judicial decisions. - Sub judice rule -> a constitutional principle which states that Parliament should not interfere in or prejudice judicial decisions.

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The rule applies to debates, motions and Questions in both Houses, where it does not allow consideration of cases currently before the courts. The rule, however, remains subject to parliamentary sovereignty. Judicial independence is preserved by rules on tenure and remuneration, long embodied in a statutory form – s33 of 2005 Act Woodhouse quotes Denham in suggesting that judicial independence is not a judicial privilege, but a right of the people and the duty of judiciary. Judicial independence, however, is not defined in 2005 Act and remains open to interpretation. In the absence of written constitution, the principle is convention-based and hence depends on the commonality of purpose between various political, institutional and judicial cultures. Although such an approach has been effective thus far, it’s interesting to speculate whether, should changes in government arise, that commonality of purpose will survive in its present form. The preservation of judicial independence hangs on the balance.

Relationship between the courts and the Parliament - **Pepper v Hart -> HL held that, subject to any question of Parl. privilege, the rule excluding reference to Parliamentary material as an aid to statutory interpretation should be relaxed as to permit such reference where legislation was ambiguous or obscure, or led to absurdity. Held that use of ministerial statements as an aid to construction of ambiguous legislation did not violate article 9 of the Bill of Rights 1689. Lord Bridge stated that reference to Hansard should be allowed, but only in rare cases – he also failed to see how issues relating to increased costs of litigation for the plaintiff could justify the court continuing to wear blinkers that conceal the vital clue to what was the actual intention of Parliament. In enacting the provisions. - Kavanagh argues that the rule allowing reference to Hansard and hence allowing the courts to construe ambiguities by reference to what individual have said in Parliament amounts to enforcing ‘un-enacted intentions’, which have never become a binding law. This undermines the rationale and integrity of legislative process. If statements of ministers are accepted by the courts, the executive is effectively given a power to make law- this cannot be reconciled with constitutional principle of parliament’s only power to legislate. The executive is also allowed to intrude upon judicial function. - **Wilson – qualified Pepper v Hart in 2 ways:

a) Ministerial statements will be assessed a lot more carefully when referring to Hansard b) Such statements will not be given the force of law, but will referred to as an optional ‘background material’ by the courts. - Kavanagh argues that following Wilson the courts have a total discretion of whether to adopt or depart from ministerial statements, no matter how clear they are, and to adopt its own views instead. This can be interpreted in 2 ways: a) The relationship between the courts and the Parliament were brought back to its usual self, in that the courts will continue mainly referring to the ‘enacted intentions’ of Parliament when performing their function of judicial interpretation b) By retaining that choice, the courts have increased the scope of their function and got dangerously close to overstepping the boundaries reflected in the partial doctrine of separation of powers.

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Separation of powers is recognised by the common law - Lord Diplock in Duport Steels v Sirs said that the British constitution is firmly based on the separation of powers in that Parliament makes the laws and the judiciary interpret them. In this case, separation of powers was used to draw a distinction between the legislative and judicial functions with a view to keeping the judiciary within bounds. - In M v Home Office Lord Templeman emphasised that Parliament makes the laws, the executive carry the laws into effect and the judiciary enforce them. - In Fire Brigades Union case, Lord Mustill discussed the doctrine in his dissenting judgement, where he said that: a) Parliament, the executive and the courts each have their distinct and largely exclusive domain b) Parliament has a largely unchallengeable right to make whatever laws it thinks right c) The executive carries on the istration of the country d) The courts interpret the laws and see that they are obeyed

iii) Separation of powers after the HRA 1998

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a) Distribution of powers between the legislature and the executive Loveland - The Act gives too much power to the government at the expense of Parliament (s10(2) of HRA 1998 – if a Minister considers there

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are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility’ Ewing - S10(2) represents a substantial concession by the government comparing to the initial proposed clause and the result is that the principle of primary legislation being amended or repealed by primary legislation only remains intact - The stipulation as to the ‘compelling reasons’ should be seen as a form of a residual power and one which in any event will be subject to judicial review. Loveland in response to Ewing - Even if istrative law constraints are placed on the minister in of judicial review, they are of extremely loose nature. If one takes human rights seriously, then any breach might be thought to be serious enough to fall under the definition of ‘compelling reasons’ and as such require immediate remedial action by the minister. - The courts (in relation to judicial review) might be reluctant to strike down a remedial action following a declaration of incompatibility by a superior court. b) Distribution of powers between the legislature and the courts

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S3 of HRA 1998 - the courts are instructed to read and give effect to legislation, so far as is possible, in a way which is compatible with the Convention rights – hence, Parliament has prescribed a principle of construction to the courts; something that has not been done before. Purposive approach a de facto insertion of additional clauses into legislation by the courts; a technique hard to reconcile with the traditional principle of sep of powers (Parliament has a legislative role, courts an interpretative role). RvA - Lord Steyn ‘In accordance with the will of Parliament as reflected in s3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will involve the reading down of express language in statute but also the implications of provisions. A declaration of incompatibility is a measure of last resort’. - Lord Hope ‘Compatibility with Convention rights is the sole guiding principle. But the rule is only a rule of interpretation. It

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does not entitle the judges to act as legislators....Compatibility is to be achieved only so far as this is possible...Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible.’ Ghaidan v Godin Mendoza - Lord Nicholls confirmed Lord Steyn’s approach in R v A, but went on to stress the importance of preserving the intentions of Parliament and the principle of separation of powers between the Parliament and the courts. The courts recognised the potential dangers of taking the principle of interpretation too far and overstepping the traditional boundary between Parliament and the court. Kavanagh has suggested that such a distinction is only useful in so far as such a distinction between the legislation and the interpretation can be drawn. She went on to state that in so far as HRA is concerned the courts both make and apply the law. c) Distribution of powers between executive and the courts

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Exercise of judicial review and the test of proportionality - The courts have traditionally been reluctant to apply it as a ground for review of government’s actions – the ‘necessary in a democratic society’ test requires much higher form of scrutiny that traditional grounds of review under istrative law

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Initial approach of the courts - Lord Steyn in Daly – there is an overlap between the tradition grounds for review and the proportionality test, as most cases would be decided the same way whichever one is adopted. However, the latter requires a higher intensity of review. Proportionality review – what is it? - the courts have to ask themselves whether the limitation of the right in question was necessary in a democratic society in respect to the objectives it was intended to serve. A shift of power from executive towards the courts as to matters of substance? - Contrast with Lord Hope in Doherty v Birmingham Council where he suggested that proportionality is simply an additional ground of review and thus should not call for extreme statements purporting a shift of power from executive to the courts. Principle of deference – what is it? the courts have been cautious in their application of Convention (a culture of judicial deference has developed in te courts, in that

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judges can be rather reluctant to interfere with laws enacted by democratically elected Parliament). Lord Hope in Kebilene – in some circumstances it will be appropriate for the courts to recognised that there is an area of judgement within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention’.