The reforms introduced by the Constitutional Reform Act 2005 have ensured that there is now meaningful adherence to the doctrine of the separation of powers in the UK.”Explain and evaluate this statement. PDF

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Discussion of the impact of the Constitutional Reform Act 2005 on the separation of powers...

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The reforms introduced by the Constitutional Reform Act 2005 have ensured that there is now meaningful adherence to the doctrine of the separation of powers in the UK.”Explain and evaluate this statement. The Constitutional Reforms Act 2005 (CRA 2005) is an important piece of legislation in recent times with substantial implications for the English legal system, courts and the Constitutional law. The Act is key to bringing in change and reforms in some established norms of the English legal system, such as the office of the Lord Chancellor and the higher judiciary. An area that has been impacted by the CRA 2005 reforms, is the doctrine of separation of powers, which was otherwise loosely applied in the UK. 1 While the overlapping functions between legislature and executive have not been impacted by the CRA 2005 reforms, there is a marked reform of the judiciary, judicial independence and the separation between judiciary and other organs of the government. Therefore, the CRA 2005 has paved the way for a firmer application of the principle of separation of powers. This essay discusses the three main reforms made by the CRA 2005 and their impact on the separation of powers principle.

The principle of separation of powers

The separation of powers doctrine relates to distribution of powers between the organs of the state, where each organ has certain functions assigned to it, that are to be exclusively performed by it. The three principal branches of government are the legislature which makes law, the judiciary which solves disputes concerning the law and the executive which carries out the law and adheres to it. The legislature consists of the 1

Dawn Oliver, Gavin Drewry, The Law and Parliament (Cambridge University Press 1998).

house of commons and house of lords, the judiciary is the court system and the supreme court, and the latter is the prime minister and his office, as well as the local branches of government. No one organ of the state is allowed to intervene in the functioning of the other organs by assuming to itself functions that are to be performed by the other organ. In that way, separation of powers is achieved as between the different institutions. The proponents of the doctrine suggest that the system of checks and balances is ensured if the principle of separation of powers is followed. 2 For instance, the actions of the executive can be subjected to both Parliamentary review as well as judicial review and the legislative actions are subject to judicial review.

The English judiciary has long highlighted the separation of powers between judiciary and executive and legislature. In R (Anderson) v Secretary of the State for the Home Department,3 it was observed by Lord Steyn that the separation of powers between the judiciary and the other organs of government is strictly applied, and this strict separation is a strong principle of governance in the UK. 4 In DPP of Jamaica v Mollison, strict separation of powers between the judiciary and other organs of the government was accepted by the court. 5 In fact, there are many cases where the judiciary has ruled in favour of there being a strict separation of powers between executive and legislature on

2

B Jones and P Norton, Politics UK (Oxon: Routledge 2014) 61.

3

[2002] UKHL 46.

4

Ibid.

Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010) 27. 5

one hand and the judiciary on the other. 6 Nevertheless, the office of the Lord Chancellor and the functions he exercised in judiciary, legislature as well as executive, has been seen as an impediment to meaningful application of separation of powers prior to this act.

Reform under the CRA 2005

The CRA 2005 changes, are with regard to the judiciary. This act was part of a very long campaign by the Labour party, which started with the devolution acts and the Human Rights act and continued with the development of the CRA: it was not triggered by a certain event but instead culminated from a gradual evolution of events. The principle of separation of powers is diluted in the English political and legal system. There are many reasons why such a dilution of the principle is observed. 7 Indeed, Walter Bagehot commented that the English system appears to be a ‘’fusion of powers’’ 8 as opposed to being compartmentalised. However, with the passage of the CRA 2005, some of this dilution is corrected. This reform has immensely helped the judiciary to become separate from the other two branches: the executive and the legislature. The problems with the separation of powers between the executive and the legislature remained untouched.

6

R (Anderson) v Secretary of the State for the Home Department, [2002] UKHL 46.

7

Dawn Oliver, Gavin Drewry, The Law and Parliament, Supra note 1, p.16.

8

Bagehot, The English Constitution, 1867, p 67–68

Changes to the Lord Chancellor

Earlier, the Lord Chancellor was given a place in Parliament, Executive and the judiciary, in which he exercised functions in all three organs. He was the head of the judiciary, a senior cabinet member and thus the executive, whilst also the Speaker of the House of Lords, the legislature. This is one of the reasons why it was said that the principle of separation of powers is diluted in the UK. The CRA 2005 corrected this dilution: the head of judiciary ceased to be the Lord Chancellor :according to section 7(1), the Lord Chief Justice is the President of the Courts of England and Wales and Head of its Judiciary . 9 Furthermore, the Lord Chancellor was replaced as a chairman in the house of lords by a Lord speaker. I will further elaborate on these two changes within the other reforms.

Creation of the Supreme Court

Earlier, the highest court in the UK was the House of Lords, but under section 23 of the CRA 2005 and the creation of the Supreme Court, the House of Lords have been subsequently replaced. As explained earlier, the Lord Chancellor was replaced as head of the judiciary by the Lord Chief Justice, who now has important functions in the Court of

9

CRA 2005, section 7.

Appeal, High Court, County Courts, Crown Courts and Magistrates’ Courts.

10

The

creation of the Supreme Court as a separate entity, clearly separates parliament from the final court of appeal. Lord Falconer announced, “the time had come for the United Kingdom's highest court to move out from under the shadow of the legislature”. 11 This new modern supreme court, was symbolic; the mere physical separation transpired public confidence as it emphasised the judiciary’s independence from Parliament. Indeed, this was a huge improvement, as before this reform, the justices were listening to appeals in secretive Committee Room of the Parliament. As the aim of this reform was to achieve a “full and transparent separation between the judiciary and the legislature”, 12 any judges who sat in the house of lords couldn’t vote, which adhered to the separation of powers. This creation played a massive role in helping a more strict adherence to the separation of powers which the UK lacked.

The two reforms discussed above, that is, the ceasing of the office of Lord Chancellor as the head of judiciary and the establishment of the Supreme Court, are the two most important reforms of the CRA 2005 with respect to the principle of separation of powers. These two reforms were made to ensure the complete separation of the judiciary from the executive and the Parliament.13 The basic focus of the reforms was to strengthen the judicial independence, which has always been the primary concern of the English

10

CRA 2005, s.7

11

Hansard, HL Vol.657, col.26 (January 26, 2004).

12

Hansard, HL Vol.657, col.927 (February 9, 2004).

Roger Masterman, The Separation of Powers in the Contemporary Constitution, Supra note 6, p.219. 13

application of doctrine of separation of powers. 14

Appointment of judges

Judicial independence has been strengthened under the CRA 2005 though the ceasing of the Lord Chancellor’s office as head of judiciary as well as abolishing Lord Chancellor’s role in appointment of judges. 15 In fact, his influence in the appointment of judges was a considerable watering down of the independence of judiciary as he was prone to be influenced by his political agenda. Under s61 of this act, the Judicial Appointments Commission is established for the purpose of judicial appointments.

16The

establishment of this committee, further decreased the significance of the Lord Chancellor’s office in the judiciary.17 This complies with the principle of separation of powers as it paves the way for more transparency, specialisation and diversity. The Lord Chancellor’s influence in this area was an impediment both the application of judicial independence as well as the application of the principle of separation of powers. 18. Judicial independence is a key aspect of rule of law and despite importance of the principles of rule of law in the English legal system, the concept of judicial independence

14

Ibid.

15

Ibid.

16

CRA 2005, sections 63 to 66.

17

Ibid.

18

Diana Woodhouse, The Office of Lord Chancellor (London: Hart Publishing 2001).

did not receive statutory recognition until the passage of the CRA 2005. 19 Currently under the CRA 2005, judicial independence has received statutory recognition under s. 3(5) where it states that the Lord Chancellor should ‘’not seek to influence particular judicial decisions though any special access to the judiciary.’’

This change hoped to comply with the European Court of Human Rights (ECHR) which held for the conformity to Article 6 (1) the tribunal must not only appear to be independent but must actually be independent. 20 Prior to these reforms, the Lord Chancellor was part of all three branches of the government, compromising the independence of judiciary and the principle of separation of powers. 21

Finally, there is a constitutional convention where the executive cannot criticise the judges decisions. However this has not always been adhered to. For example, this can be seen when Elizabeth Truss, the Justice Secretary, did not defend the judges from the Brexiteer attacks, when they were stigmatised as ‘’enemies of the people.’’ 22 This is a weakness of the CRA 2005, as judicial independence may be threatened as there are no measures implemented to ensure its enforcement. Overall, this reform is a meaningful adherence to the separation of powers, as it removes the executives power in appointing judges.

19

Diana Woodhouse, "United Kingdom: The Constitutional Reform Act 2005—defending judicial independence the English way" (2007) 5 (1) International Journal of Constitutional Law 153. 20

McGonnell v UK, [2000] Eur. Ct. H.R. 28488/95.

21

Diana Woodhouse, "United Kingdom: The Constitutional Reform Act 2005”, Supra note 21.

Jon Stone Political Correspondent. "Silent Justice Secretary Liz Truss Slammed for Not Speaking out to Defend Judges from Brexiteer Attacks." The Independent. Independent Digital News and Media, 04 Nov. 2016. Web. 08 Mar. 2017. 22

Flaws in the CRA 2005

Another reason why the separation of powers doctrine was considered to be diluted in the UK is because of the close inter-relation between the Parliament and Executive. The functions of legislature and executive are overlapping. 23 However, this is not a unique phenomenon in the UK alone. A united legislature and executive is often seen in different countries in the name of expediency. 24 Indeed, perhaps it is not favourable to separate these two branches; as Walter Baghot remarks that the fusion of the executive and legislature is the ‘’efficient secret of the English constitution.’’ 25 For example, in the UK, the Prime Minister performs the functions of the head of the executive as well as the leader of the majority party in the House of Commons 26 which grants him greater autonomy then a president would have had in government. On the other hand, the apparent disadvantage is that there is no proper implementation of checks and balances due to this fused composition between these two branches. An example of this fusion is

23

Dawn Oliver, Gavin Drewry, The Law and Parliament , Supra note 1, p.16.

Ronald J Krotoszynski, “The separation of legislative and executive powers”, in Tom Ginsburg, Rosalind Dixon (eds.) Comparative Constitutional Law (Cheltenham: Edward Elgar 2011) 234. 24

25

Bagehot, The English Constitution, 1867, p 67–68

26

Richard Benwell and Oonagh Gay, “The Separation of Powers” (SN/PC/06053) 3.

that the executive is drawn by the legislator. Overall, while there is meaningful separation of powers concerning the judiciary, the CRA 2005 has had no impact on the separation of powers between the executive and legislature.

Conclusion

The passage of the CRA 2005 is an important step towards achieving greater independence of judiciary as well as a more meaningful application of the principle of separation of powers. This is achieved through reshuffling the Lord Chancellor’s duties in the judiciary, executive and legislature, which disperses the concentration of power. The creation of the Supreme Court reflects a true separation of the legislature from the judiciary. The appointment of judges by the Judicial Appointment Commission, has led to greater transparency and specialisation which allows the separation of powers to further develop.Therefore, a stricter separation of powers has been achieved between the judiciary and the other two organs, however, the problems with the legislator and executive were not addressed and hence as a whole, the doctrine of separation of powers was not adhered to. On the other hand, the interconnectedness of the executive and the legislature, is viewed as an efficient mechanism, and thereby reforms would not be favourable.

Bibliography

Benwell R and Gay O, “The Separation of Powers” (SN/PC/06053, House of Commons) Krotoszynski RJ, “The separation of legislative and executive powers”, in Tom Ginsburg, Rosalind Dixon (eds.) Comparative Constitutional Law (Cheltenham: Edward Elgar 2011) Jones B and Norton P, Politics UK (Oxon: Routledge 2014) Masterman R, The Separation of Powers in the Contemporary Constitution: and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010) Oliver D and Drewry G, The Law and Parliament (Cambridge University Press 1998) Woodhouse D, The Office of Lord Chancellor (London: Hart Publishing 2001) Woodhouse D, "United Kingdom: The Constitutional Reform Act 2005—defending judicial independence the English way" (2007) 5 (1) International Journal of Constitutional Law 153...