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Impact of the Constitutional Reform Act on the Separation of Powers...

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Every state has three branches of power: the legislative, the executive and the judiciary. 1. Legislative – making legally binding sets of rules that apply to people generally. 2. Executive – foreign relations; military action; administration; developing national policy on a wide range of subjects. 3. Judicial – applying the law to resolve civil disputes; conduct of criminal trials. The doctrine of separation of powers dictates that in a nation which has political liberty as the direct object of its constitution, no one person or body of persons ought to be allowed to control the legislative, executive and judicial powers, or any two of them.1 "It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches." 2 There are three key reasons for separating powers: a) it may be thought of as a template for the design of a constitutional system, if a country is starting from scratch the idea of SoP offers guiding principles on allocating legislative, executive & judicial functions to various kinds of institution. b) to protect liberty, if too much of one kind of power is concentrated in the hands of one person/institution, there is more of a risk of the power being abused (what if your judge changed the law to convict you?).  Baron Montesquieu ‘The spirit of the Laws’ 1748 – ‘the political liberty of the subject is a tranquillity of mind... in order to have his 1

Baron Montesquieu in his work L'Esprit des Lois Book XI, chs V, VI)

M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), at p.13.

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liberty, it is requisite that the government be so constituted as one man need not be afraid of another’.  Barendt ‘Separation of powers and constitutional government’ 1995 – ‘it does not matter... whether powers are always allocated precisely (Jennings) to the most appropriate institution’. c) efficiency, if the various types of power are allocated sensibly to the right kind of institution, it is more likely to be efficient. Barber ‘Prelude to the SoP’ 2001 – ‘it enjoins *the authors of the constitution] to match function to form in such a way as to realise the goals set for the state by political theory’. Most written constitutions rely heavily on this doctrine such as the US constitution. Despite uncertainty over the influence of separation of powers in the United Kingdom, ideas associated with the doctrine have recently enjoyed something of a renaissance.3

The Separation of Powers in the United Kingdom: The doctrine has always enjoyed an uneasy relationship with the United Kingdom. The doctrine has traditionally not been seen as an important feature of the British constitution which is an unwritten constitution. Dicey in his classic exposition of constitutional law4 hardly mentioned it, and Bagehot described the efficient secret of the English constitution as being not the separation but rather the fusion of the legislative and executive functions.5 Well into the 20th Century, many constitutional scholars who explored the theory rejected it both as a political and as an accurate description of the British constitution.6 3

A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn (London: Macmillan, 1959).

4

W. Bagehot, The English Constitution (London: C.A. Watts & Co, 1964), at p.64. 5

For example I. Jennings, The Law and the Constitution, 5th edn (London: University of London Press, 1959) and G. Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971); see also C.R. Munro, Studies in Constitutional Law, 2nd edn (London: Butterworths, 6

However: Duport Steels Ltd v Sirs [1980] 1 All ER 529 at 541, [1980] 1 WLR 142 at 157, HL, per Lord Diplock ('it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers'), and at 551 and 168–169 per Lord Scarman. A concern, most strongly expressed by the former Lord Chief Justice Lord Hewart of Bury in The New Despotism(1929), that the distinctions between legislative, executive and judicial functions were being unduly disregarded, formed the background for the inquiry conducted by the Committee on Ministers' Powers (the Donoughmore-Scott Committee): see the Report of the Committee on Ministers' Powers (Cmd 4060) (1932). The committee was led to lay emphasis on some rather dubious distinctions, eg between judicial and quasi-judicial functions. These were carefully avoided by the Committee on Administrative Tribunals and Inquiries (the Franks Committee), which reported in 1957 (Report of the Committee on Administrative Tribunals and Enquiries (Cmnd 218) (1957). See Jennings The Law and the Constitution (5th Edn, 1959) ch 1 and Appendix I. For an examination of the tests to be applied to discover whether a court or tribunal has genuine judicial characteristics in a constitutional system which reserves certain functions to the judiciary see Liyanage v R [1967] 1 AC 259, [1966] 1 All ER 650, PC; United Engineering Workers' Union v Devanayagam [1968] AC 356, [1967] 2 All ER 367, PC. See M v Home Office [1994] 1 A.C. 377, 395. The contested nature of the doctrine is attributable to a number of factors7: the physical “fusion” of the elected branches of government8, the absence of a documentary constitution prescribing the organs of government and their functions9, the lack of a clear tradition of legal 1999), at p.302 et seq. Masterman R & Wheatle S, ‘Unpacking separation of powers: judicial independence, sovereignty and conceptual flexibility in the UK constitution’ [2017] PL (Jul), page 469.

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W. Bagehot, The English Constitution (Oxford: Oxford University Press, 2001) (Oxford World’s Classics), p.11. 8

S.A. de Smith, “Separation of Powers in New Dress” (1966) 12 McGill Law Journal 491, 491. 9

control on government10 and differing visions of the aims and purpose of separation of powers itself11. Only in one aspect of the constitution can it be said that the doctrine is strictly adhered to, namely that by virtue of rules of strict law, constitutional conventions, political practice, and professional tradition, the judiciary is substantially insulated from political influence: See Abse v Smith [1986] QB 536 at 554, [1986] 1 All ER 350 at 360, CA, per Sir John Donaldson MR; Sherdley v Sherdley [1986] 2 All ER 202 at 206, [1986] 1 WLR 732 at 736, CA, per Sir John Donaldson MR. See also Duport Steels Ltd v Sirs [1980] 1 All ER 529 at 541, [1980] 1 WLR 142 at 157, HL, per Lord Diplock and at 551 and 168–169 per Lord Scarman; Chokolingo v A-G of Trinidad and Tobago [1981] 1 All ER 244 at 247–248, [1981] 1 WLR 106 at 110–111, PC; R v HM Treasury, ex p Smedley [1985] QB 657 at 666, [1985] 1 All ER 589 at 593, CA, per Sir John Donaldson MR; Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 250, [1986] 1 All ER 199 at 204, HL, per Lord Scarman. See also paras 130–131. A statement of the doctrine of separation of powers as it applies in the United Kingdom was given by Lord Mustill in R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513 at 567, [1995] 2 All ER 244 at 267: '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 the administration of the country in accordance with the powers conferred upon it by law. The courts interpret the laws, and see that they are obeyed'. However, the last 20 to 30 years have seen renewed judicial acknowledgment of the importance of the doctrine.12

M. Loughlin, “Wither the Constitution?”, in C. Forsyth (ed.), Judicial Review and the Constitution (Oxford: Hart Publishing, 2000), p.425.

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G. Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971), ch.5. 11

For example in Hinds v R. [1977] A.C. 195 PC (Jamaica) at 212 and R. v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513 HL at 567.

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Assertions of the fundamentality of the doctrine have become more commonplace.13 Separation of powers is not only revealing itself as an influential factor in macro-level constitutional renovation but is also argued to show increasing signs of enforceability in the micro-level processes of litigation.14 In modern Britain the doctrine is deficient as an accurate description of present day constitutional arrangements. However, in modern times, the doctrine does retain important value as a description of how the different elements of our constitution might or should operate as independent from each other. This makes the value of the doctrine of the separation of powers an important element in the protection of the judiciary and its independence. As Lord Templeman explained in M v Home Office15: “...Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law.” In fact, the doctrine has contributed to the justification of important constitutional changes made by the Constitutional Reform Act 2005 especially the changes to the office of the Lord Chancellor and, by the creation of the Supreme Court, the severing of the link of the highest court to Parliament.

Separation between crown and parliament: Tomkins ‘Public Law’ 2003 – ‘all constitutional actors ultimately draw their power from either the Crown or from Parliament’ & ‘the judiciary derives its constitutional power ultimately from that of the Crown’, he gives the following evidence: 1. Parliamentary sovereignty & acts of parliament ‘represent the legal moment when the two sovereign authorities of England come together and agree: Parliament on the one hand, the Crown (Royal Assent) on the other’.

R. (on the application of Anderson) v Secretary of State for the Home Department [2003] 1 A.C. 837, 882 and 899; DPP of Jamaica v Mollison [2003] UKPC 6; [2003] 2 A.C. 411, [13].

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Masterman. 15 M v Home Office [1994] 1 A.C. 377; [1993] 3 W.L.R. 433 HL. 14

2. there is a constitutional convention that ministers (of the Crown) are accountable to Parliament, in order for this to happen ‘the English version of the SoP requires that ministers simultaneously be parliamentarians’. 3. ‘what this case shows (M v Home Office 1994) ..is that even as recently as the 1990s the courts in England have found it exceptionally difficult to subject the Crown and its sovereign authority to the RoL’ .

Judicial analysis of SoP:  R v SoSHD ex parte Fire Brigades Union 1995  ‘...requires the courts on occasion to step into the territory which belongs to the executive, to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended’.  A v SoSHD 2004  ‘it is the function of political and not judicial bodies to resolve political questions, conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions’.  R (app. of Cart) v Upper Tribunal; R (app. of U & XC) v SIAC 2009  ‘the interpreter’s job cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail’. Civil servants imposing penalties on irresponsible fathers:   civil servants are responsible for the administration of central government & work within the executive.   they were allowed to confiscate the passports of fathers who didn’t pay their child maintenance.  HOL Constitution Committee ‘Welfare Reform Bill’ 9th report, 2008-2009 – ‘in our view, suspending a person’s right to hold a passport , because of

its impact on a constitutional right, should fall into the latter category *powers for which judges should be responsible+’.

R v SoSfHD ex parte Anderson 2002:  Home Secretary (government minister –politician accountable to Parliament) given the power to decide how long a murderer’s imprisonment should be before they are released on licence (s.29 Crime (Sentences) Act 1997).  ‘in our system of law the sentencing of persons convicted of crimes is classically regarded as a judicial rather than executive task’.  HOL made a declaration of incompatibility under the HRA 1998 that s.29 was incompatible with Art.6 of the ECHR. The ultimate CoA as a parliamentary committee:   the appellate committee of the HOL was a court & a house of Parliament, judges were also Peers and took part in some of the HOL’s legislative & scrutiny work.   CRA 2005 said that there should be an institutional separation of the ‘judicial business’ from the legislative & scrutiny work so the judicial functions would be transferred to a new Supreme Court.  but Lord Lloyd said in 2003 that ‘it is obviously vital that the judiciary & the executive should be separate & distinct, but there has never been a reason... why the judges & the legislature should be distinct & separate. Dahrendorf ‘A confusion of powers: Politics and the RoL’ 1977  ‘the theoretical SoP is merely the preface to the main volume of practical problems of how the different and possibly separate powers should be coordinated’.

Interactions between Parliament, the executive & judges:

‘Crown vs Parliament’ separation:  statutory rules state that MPs and Peers are not eligible to serve as fulltime members of the judiciary.  but they can hold part-time judicial appointments.  up to 2009 senior judges who had been conferred with a peerage were entitled to sit and vote during the HOL’s legislative work & senior judges took part in political scrutiny.  but after ‘judicial business’ was transferred to the new Supreme Court serving judges cannot now participate directly in the legislative process for making AoP, they may have an interest in commenting on legislative proposals.  Art.9 of the BoR 1689 is still respected & enforced by the courts (freedom of speech & debates or proceedings in Parliament ought not to be impeached or questioned by any Court).  subject to one major exception, courts should not allow parties to litigation to put in as evidence statements that were made in Parliament.  but Pepper v Hart 1993 – a judge can receive evidence in the form of extracts from Hansard in which a minister responsible for introducing a Bill explains what a provision is intended to achieve but only if (a) the statutory provision that the court is trying to interpret is ambiguous & (b) the minister’s statement is itself clear → in subsequent cases (Wilson v SoSTI 2003) the courts sought to limit this e.g. when a judge is assessing the compatibility of a provision with the HRA 1998 reference should not be made to explanations given to Parliament by ministers as to the various policy options that the government had explored before introducing the Bill.  the sub judice rule (HOC Standing Order 42A) requires that MPs should not seek to bring up in debates, questions/motions cases that are pending or being heard by a court.  but there is discretion for the Speaker & Lord Speaker to allow discussion of judges/judgments if it is in the national interest & the Joint Committee on HR’s reported twice on what it saw as the wrong approach adopted by the courts in deciding that private care homes were not

covered by the HRA 1998, Parliament then reversed the effect of a HOL decision.   the statutory duty of ministers is to uphold the independence of the judiciary & the role of the Lord Chancellor is to defend that independence but ministers have been outspokenly critical of individual judges, the judiciary as a whole & particular judgements.   ministers are required to be members of Parliament, the role of the UK Parliament is largely reactive.  but a cap is placed on the total number of MPs who can serve as ministers. The impact of the Constitutional Reform Act "The structural changes engineered by the Constitutional Reform Act 2005 in particular have contributed to a more tangible separation of powers within which the judicial branch has emerged as both stronger and institutionally independent of its executive and legislative counterparts".16

Under the Constitutional Reform Act 2005, the Lord Chief Justice became head of the judiciary in England and Wales and in 2009 the Supreme Court became the appellate jurisdiction taking over that function from the House of Lords.

Undoubtedly judicial independence is being upheld but this may cause problems when judges are asked to undertake public inquiries that bring them into direct contact with party political issues or the public media. Mr Justice Beatson has raised a query of whether or not judges should conduct such inquiries.17 The recent Leveson Inquiry18 into the media Masterman R & Wheatle S, ‘Unpacking separation of powers: judicial independence, sovereignty and conceptual flexibility in the UK constitution’ [2017] PL (Jul), 469-487.

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J. Beatson, “Should judges conduct public inquiries?” (2005) 121 Law Quarterly Review 221.

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following examples of illegal “phone tapping” is a case in point as to whether or not this was a desirable role for a serving judge. Other examples such as the Hillsborough Inquiry into a football stadium disaster19 and events in Northern Ireland relating to “Bloody Sunday”20 are illustrative of the range of sensitive issues21 that judges are expected to consider. Also problematic is the Law Officers of the Crown, the Attorney General and Solicitor General are members of the government but are expected to give independent legal advice. The role 22 of the Attorney General in the overall consent to prosecute certain criminal offences may be difficult and tinged with political, social and economic considerations. The decision of the independent Director of the Serious Fraud Office to drop his investigations of bribery charges against BAE Systems Plc was upheld by the House of Lords as perfectly lawful. Pressure to drop the case had come from Saudi Arabia and advice from diplomats, the foreign office and the Attorney General is well documented in the decision of their Lordships. It is clearly indicative of the problem of ensuring independence in a sensitive area in difficult cases where defining the public interest is often determined by a delicate balance of conflicting considerations. The war in Iraq proved an example of where there was a vote in Parliament in 2003. The House of Commons voted by 412 to 149 to authorise the war had been proceeded by advice from the Attorney 18 An

inquiry into the Culture, Practices and Ethics of the Press, HC 780 (2012–13), known as the Leveson Inquiry. 19

The Hillsborough Stadium Disaster, Cm 962 (1990), Lord Taylor.

Report of the Bloody Sunday Inquiry, HC 29-I-HC 29-X (2010–11), Lord Saville.

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Report of the Inquiry into the export of Defence Equipment and Dualuse Goods to Iraq and Related Prosecutions, HC 115 (1995– 96), Lord Scott.

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R (On the application of Corner House Research and others) v Director of Serious Fraud Office [2008] UKHL 60; [2009] 1 A.C. 756.

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General on the legal basis for the war.23 The Attorney General was forced to publish his advice24 revealing how his opinion had been shaped by changing events and circumstances when...