Lecture 4 The Separation of Powers and the three branches of government in the UK Constitution PDF

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Lecture 4 The Separation of Powers and the three branches of government in the UK Constitution lecture notes...

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Lecture 4: The Separation of Powers and the three branches of government in the UK Constitution Theory of Separation of Powers ● The idea that there should be a clear separation of powers between the three branches of government (legislature, the executive and the judiciary) is by no means a new concept ● Aristotle (384–322 BC), writing in The Politics, stated (based on his observations on the governmental practices of the small Greek city states and other Aegean and Eastern Mediterranean states), that it was not good to have too much governmental power concentrated in the hands of one person or body ● In his view, it led to tyranny, and subsequent misery for the citizens of that state ● “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; of these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the official; and third the judicial element.” Separation of Powers and the Bill of Rights 1689 ● The idea of separation of powers as outlined by Aristotle did help to inform the government of the Roman Republic, and also lingered long into Imperial Rome ● However, after the fall of the Western Roman Empire in the Fifth Century AD, classical ideas of government and constitution fell into disuse, subsumed by smaller kingdoms and fiefdoms governed by absolute rulers ● However: we know that in England and Wales (and later Scotland and Ireland) the events of the 17th century (Civil War, Glorious Revolution etc.) did culminate in a form of separation of powers between the three branches of government, in the form of the Bill of Rights ● In the Bill of Rights (an Act of Parliament which is still largely still good law today) the Monarch (representing the executive branch of government) was forbidden from raising taxes, making new laws, and maintaining a standing army in peacetime, using the Royal Prerogative ● Furthermore, the Bill of Rights 1689 forbids members of the executive from acting in a judicial capacity. In essence, this created a clear delineation between the powers of the legislature, the executive, and the judiciary. ● Baron de Montesquieu: ○ “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers.” (L’Espirit de Lois, 1748) ○ Both the operation of the Bill of Rights 1689, and the ideas of Montesquieu provided an inspiration to the architects of the US Constitution in 1787 ○ The new USA wished to distance itself from what they saw as the iniquities of monarchical governments in Europe ○ The USA took the ideas of Montesquieu on separation of powers a stage

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further than Great Britain: they insisted on COMPLETE separation of powers between their three branches of government This strict separation of powers pertains to this day, with each branch of government carrying out a strict check and balance on each other to prevent the misuse of government power.

What is the main reason for the partial separation of powers in the UK Constitution? ● Again, it comes down to the fact that the United Kingdom Constitution EVOLVED, rather than being a product of grand intellectual and philosophical design like codified constitutions ● The reason for the overlap between Parliament (the legislature) and the top level of the Executive (the Prime Minister, his Cabinet and other Ministers of the Crown who are not in Cabinet) is one of historical accident ● When King George I came to the throne in 1714, he had little appetite for dealing with all the day to day affairs of Executive government and dealing with Parliament – he delegated a large portion of this role to a new office called First Lord of the Treasury which is still the official title of the Prime Minister to this day ● The original First Lord of the Treasury, Sir Robert Walpole was also a Member of Parliament, and had a great deal of respect over both Houses of Parliament ● Gradually, the First Lord of the Treasury/Prime Minister had to have help dealing with the increasing load of executive business, so had to have a Cabinet, consisting of other MPs and Lords ● Again, none of this was pre-planned: our Parliamentary Executive in the UK simply happened as a result of historical and political development.

The gradual acceptance and solidification of partial separation of power? ● With the passage of time, the overlap between Parliament and the top level of the executive (PM, Cabinet, and Ministers of the Crown) began to be accepted, and even something that legal and political writers were proud to have as a unique feature of the UK Constitution. ● Sir William Blackstone (1765-1769): ○ ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not be whole, of the legislature. The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ ● Professor Eric Barrendt (1997): ○ ‘The separation of powers in some form is arguably the essence of constitutionalism’ Judicial acceptance of the overlaps between legislature and executive ● Lord Bingham in DPP of Jamaica v Mollison [2003] UKPC 6: ○ ‘Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described by Lord Steyn as “a characteristic feature of democracies”’ ● Effectively Lord Bingham was asserting that although there is an overlap between the legislative and executive branches of government in the UK, this did not make the UK’s status as a liberal democracy any less valid. He also stressed the complete independence of the judicial branch of government; ● Almost absolute independence of the UK judiciary was achieved in the Constitutional Reform Act 2005, which created the UK Supreme Court to replace the Appellate Committee of the House of Lords. Reason for Separation of Powers in the UK Constitution ● It is about ‘Checks and Balances’ ● Lord Acton: “All power tends to corrupt, and absolute power corrupts absolutely.” ● Parliament: ○ Internal processes and rules of Parliament ○ Electoral processes ● Executive: ○ Executive accountable within Parliament ○ Executive accountable within the admin law system and the courts ● Judiciary: ○ Reasoning within judgments

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Appeals system Protections to ensure independence

Parliament: The United Kingdom Legislature What is Parliament? ● “Parliament is the forum where the exercise of government is publicly displayed and is open to scrutiny and criticism”- Michael Ryle in “The Commons Today” (1981) ● Functions of Parliament ○ It makes new laws (Acts of Parliament) and authorises raising of taxes ○ It provides the personnel for the top level of the Executive (PM, Cabinet, Ministers of the Crown) ○ It provides legitimacy for government actions ○ It subjects matters of public policy to scrutiny and influence - Hilaire Barnett Parliament consists of: ● The House of Commons ● The House of Lords ● The Queen in Parliament Parliament is ‘Bicameral’: it consists of two Houses ● The House of Commons: ○ 650 MPs (each representing geographical/demographic constituencies in the UK) ○ Including speaker ● House of Lords: ○ 797 Lords ○ 87 hereditary peers ○ 684 life peers ○ 26 Bishops Relationship between the two Houses of Parliament: Comparison and Contrast ● House of Commons (elected House) ● House of Lords (most are appointed life peers, with some hereditary peers (the Lords Temporal) and 26 retired Bishops of the Church of England (the Lords Spiritual ● The House of Commons is by far the most influential/powerful Chamber in Parliament ● The Primacy of the HC is recognised in: ○ Statute (the Parliament Acts 1911 and 1949) ○ Constitutional Convention: Manifesto pledges not blocked (Salisbury – Addison Convention) ○ Financial privilege of Commons: the House of Lords cannot delay a finance/money Bill from becoming an Act of Parliament ○ Lords do not usually object to secondary legislation. ● The relationship between the House of Lords and the Commons is important in scrutiny of government action and as such the composition of the Lords is important

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Despite not having the power of the HC, the HL is still extremely important in subjecting the content of most Parliamentary Bill to scrutiny and highly informed discussion and debate Life Peers- is the main membership from the House of Lords Reform Act 1999; Reflecting society?: is the House of Lords truly reflective of modern UK society? Peers have more opportunity/scope for independent thinking and speaking than MPs in the HC Parliamentary Bills may begin their life in the HC or HL House of Lords Reform Act 2014 ○ Provides for formal resignation from the Lords ○ Removal in respect of non-attendance or if a serious criminal conviction Payment of Peers ○ Peers receive no salary but do receive a ‘daily allowance’ for the days on which the house sits and they attend ○ House of Lords Expenses

Summary on functions of Parliament ● Legislative (Main Function) ○ Taxation, finance (Commons only) ○ Protection of human rights ○ http://www.parliament.uk/business/bills-and-legislation/ ● Scrutiny of Executive Action, policy and administration ○ Scrutiny of legislation, debates, questions, select committees ● (Parliament has no judicial function- narrow quasi-judicial exception see (8.7.3 of Ryan & Foster)– the Commons enforces parliamentary privilege). Parliament: Rules, Privileges and Accountability Statutes informing the working of Parliament ● Main Statutes ○ The Bill of Rights 1689 ○ The Parliament Acts 1911 and 1949 ● Other Statutes ○ Human Rights Act 1998 ○ House of Lords Reform 1999 ○ Fixed Term Parliament Act 2011

Parliamentary Rules and Procedures ● Standing orders (written rules) ● Written Guidance ○ https://www.parliament.uk/documents/rules-of-behaviour.pdf ○ https://www.parliament.uk/mps-lords-and-offices/standards-and-financialinterests/parliamentary-commissioner-for-standards/code-of-conduct-andrules-of-the-house/ ● Tradition and Custom ● https://www.parliament.uk/about/how/role/customs/ ● Constitutional Conventions

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https://www.parliament.uk/site-information/glossary/conventions/

Holding Parliament to Account ● Elections ● Select Committee on the Standards and Privileges ● Parliamentary Commission for Standards ● Code of Conduct for MPs (Lords and Commons each have their own)https://www.parliament.uk/site-information/glossary/code-of-conduct-for-mps/ ● Parliamentary Standards Act 2009: Independent Parliamentary Standards Authority ● Same seven principles of behaviour as for ministers ○ ‘Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty, Leadership’ Holding Parliament to Account: Democracy ● Representative ○ Fixed Term Parliament Act 2011 ■ Elections every 5 years ■ Elections can be held early: ● If a motion is agreed either by at least two-thirds of the house OR ● If a motion of no confidence is passed and there is no alternative govt. within 14 days; ■ ‘first past the post voting system’ ■ To what extent is parliament representative of the population? ● Participatory ○ Elections- the extent to which citizens engage ○ Prior to1832 the right to vote was limited (based upon property owners) ○ 1928- women receive the vote on the same basis as men. ○ Representation of the People Act 1983 (amended 1985 & 2000) ○ Referendums (not traditionally ‘the British way of doing things’) ○ E-petitions calling for debate Limitations on accountability to ensure Parliament can function ● Parliamentary Privileges ○ Freedom of speech within Parliament: Article 9 Bill of Rights 1689; ● What of use of material from parliamentary proceedings today: ○ A v UK [2003] 36 EHRR 51 ○ Defamation? ○ Pepper v Hart [1993] 1 ALL ER 42 ● Freedom from arrest within Parliament (but calls for removal of this privilege) ● Parliament provides for its own composition ● Regulates its own proceedings ● Compels witnesses to attend and give evidence Limits of Parliamentary Privilege ● R v Chaytor [2010] UKSC 52○ If a matter falls within parliamentary privilege then the courts have no jurisdiction

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However: Determination of whether a matter falls within Parliamentary Privilege is based upon the question of whether it is an area which is necessary to allow parliament to function (necessity/functionality test) Parliamentary privilege did not prevent review of members expenses ○ Prosecutions were possible in R v Chaytor [2010]

The Executive The Elected/Non-Elected Political/Non-Political Executive ● As has already been mentioned, there is an overlap at the very summit of the Executive branch of government in the UK with the legislature/Parliament: ● The Elected/Political Executive ○ In addition to being at the very top of the Executive, the Prime Minister, his/her Cabinet, and Ministers of the Crown not in Cabinet will either be (most frequently) Members of Parliament or (less frequently) peers in the House of Lords ○ Boris Johnson PM is also MP for Uxbridge and South Ruislip ○ Rishi Sunak (Chancellor of the Exchequer) is also MP for Richmond ○ Priti Patel (Home Secretary) is MP the constituency of Witham ● Whenever ‘The Government’ is referred to on the news, social media, or in the newspapers, they are usually referring to the very top of the Executive branch of government: the PM, Cabinet, and Ministers of the Crown ● The UK has a Parliamentary Executive, which stands at the apex of the executive branch of government ● This overlap of powers between legislature and executive is not unique to the UK. Here are a few countries which also have a Parliamentary Executive: ○ Australia ○ Canada ○ New Zealand ○ Republic of Ireland (All of these countries have been influenced historically by the “Westminster System” of government ● Underneath the PM, Cabinet, and Ministers of the Crown, there is the nonelected/non-political executive ● This is simply an enormous arm of government, and a huge employer in the UK ● At the very top of the ‘non-political’ executive are the top unelected civil servants known as the ‘Permanent Secretaries’ ● It has sometimes been suggested that these Permanent Secretaries (who remain in post even when the government has changed from one political party to another) are the real power in government! ● Permanent secretaries and their staff not only have the duty of enforcing government policy, but they also will advise the relevant Secretary of State/Minister of the Crown on policy itself, and their staff will play a leading role in the drafting of Parliamentary Bills/Acts of Parliament ● Beneath the Permanent Secretaries lies the whole of the UK Civil Service, including: ○ HMRC

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○ The Child Support Agency ○ The Police, Prison Service and Immigration Agency ○ The Armed Forces ○ The Jobcentre Plus ○ The Diplomatic Corps The non-elected civil service must be POLITICALLY NEUTRAL: for example, a serving police officer cannot be elected as an MP or to the position of councillor in a local authority.

Function of the Executive ● You will see from your reading in Ryan and Foster that the exact function of the executive branch of government is difficult to define (See Ryan and Foster 5.3.2.) ● However, it is possible, in fairly general terms, to identify some key tasks and functions of the Executive: ○ ‘Residual functions once the legislative and judicial functions allocated’ ○ Governs the state ○ Provides political leadership ○ Formulates domestic and foreign policy ○ Initiates legislative proposals ○ Implements law and policy ○ Makes appointments ○ Some law making powers ○ Delegated legislation: https://guidetoprocedure.parliament.uk/collections/lA7IUL12/delegatedlegislation-and-statutory-instruments Rules governing the Executive ● There is little legal theory governing the role of the executive/Political constitutionalism (this is probably because it is still evolving, along with the entire UK constitution) ● Cabinet Manual ○ In 2010 many of the rules and constitutional conventions were brought together in the Cabinet Manual: https://www.gov.uk/government/publications/cabinet-manual ● Standards of Conduct ○ Constitutional Conventions of: ■ Collective responsibility ■ Ministerial responsibility ■ Ministerial code of conduct Responsible and Accountable Government/Legitimacy of Government ● Constitutional Conventions on Conduct ○ Role of Ministers: ■ Ministerial accountability ■ Collective responsibility ○ Parliamentary scrutiny of Government: ■ Questions ■ Debates

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■ Select Committees Public Scrutiny ○ Electoral accountability ○ Transparency of Government ○ Freedom of Information Act 2000 ○ Public Records Acts ○ Data Protection Act 1998 ○ Official Secrets legislation ○ Legal Accountability: ■ Judicial Review ■ Inquiries

Ministerial Code ● Codified Constitutional Convention ○ ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety.’ ○ ‘The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life. They are expected to observe the Seven Principles of Public Life’ ○ (Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty, Leadership)- Ministerial Code ● Sets out a range of rules governing ministerial behaviour ○ Collective responsibility ○ Duty to parliament to account for policies, decisions and actions of departments and agencies ○ Duty to give accurate and truthful information to Parliament ○ Duty to be as open as possible, save where disclosure is not in the public interest ○ What of Enforcement of the Code? ○ Changes to the code? Collective Responsibility ● Ministerial Code (2.1 of the code) ○ ‘Decisions reached by the Cabinet or Ministerial Committees are binding on all members of the Government’ ■ ‘The principle of collective responsibility [save where it is explicitly set aside] requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and ministerial committees, including in correspondence, should be maintained’. ● The Government must maintain the confidence of the House of Common ● Cabinet collective responsibility ● Examples of Collective Responsibility being set aside: ○ 1932 Coalition Government over economic policy

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4 ministers resigned until PM waived convention to allow them to discuss differences 1975 Labour Government over the EEC ■ Limited to issue of EEC membership only= agreement to differ ■ 2010-15 Coalition members often disagreed publicly Breach of confidence challenged in AG v Cape [1976] 1 QB 752 ■ ‘Crossman Diaries’

What is Individual Ministerial Accountability? ● ‘The Minister in charge of a department is solely accountable to Parliament for the exercise of the powers on which the administration of that department depends. The Minister’s authority may, however, be delegated to a Minister of State, a Parliamentary Secretary, or to an official.‘- 4.6 Ministerial Code ● The convention can be summed up into tw...