#3124 - Separation Of Powers - GDL Constitutional and Administrative Law

Introduction

- Crux: not much formal SOP in UK, but how much practical adherence to theory?

- Prima facie: lack of formal SOP in UK constitution – esp. between executive + legislature.

• no formal SOP: uncodified constitution, due to historical development (cf. France, USA); overlaps (e.g. Queen: head of all 3 branches).

• [Ld Hailsham]: ‘elective dictatorship’ – legislature effectively controlled by executive.

• [Barendt]: ‘no effective SOP between legislature + executive in the system of checks + balances.’.

• [De Smith & Brazier]: ‘no writer of repute would claim that SOP is a central feature of the modern British Constitution’ (BUT: formalistic view).

• [Prof Hood Phillips]: ‘constitutional myth’.

  - BUT: in practice, some adherence – esp. effective separation of judiciary from other 2 branches.

• practical SOP:

  • 1. statutes + conventions.

  • 2. judicial independence.

• strengthened by recent developments:

  • 1. growth of judicial review (esp. after GCHQ).

  • 2. evolution of substantive rule of law.

  • 3. HRA 1998.

  • 4. A & Others (2004)

  • 5. Jackson (2005)

  • 6. CRA 2005

• in practice: always some adherence to theory + now growing.

  • [Barendt]: ‘there is, however, effective separation of judicial power from the other branches’.

  • [Munro]: ‘although not absolute, [SOP] ought not to be lightly dismissed’.

  • [Ld Steyn, Anderson]: ‘our constitution has never embraced a rigid SOP. The relationship between the legislature and the executive is close [but] the SOP between the judiciary and the legislative and executive branches of government is a strong principle of our system of government’.

  • [Ld Diplock, Duport Steel v Sirs]: ‘UK constitution, though unwritten, is firmly based on the SOP’.

  • [Ld Irvine]: SOP is ‘an ideal which must be pursued in a manner appropriate to contemporary circumstances … a flexible and dynamic approach’.

    Theory

    - Theory of SOP: separation of legislature, executive + judiciary prevents accumulation of power.

• background: Aristotle – need for 3 functions of govt.; Locke: developed idea.

• Montesquieu (De L’Esprit de Lois: analysing English 18C English constitution presenting idealised picture):

  • 1. 3 functions of government: legislative (make law); executive (apply law); judicial (enforce law).

  • 2. 3 organs: legislature; executive; judiciary.

  • 3. 3 functions should be kept separate: no branch should exercise power of another; personnel separate.

    • rationale: prevent concentration of power, protect rights + freedoms ([Ld Acton]: ‘absolute power corrupts absolutely’).

  • but: absolute separation impossible some overlap + checks/balances needed.

• - [Munro]: 3 ideas –

  • 1. no body should form more than 1 part of the 3 organs.

  • 2. 1 organ should not exercise functions of other 2 organs.

  • 1 organ should not interfere with/control functions of other 2 organs.

  - Application:

  • France: Art 16 Declaration of the Rights of Man, 1789: ‘any country in which the safeguarding of rights is not assured, and SOP is not observed, has no constitution’.

  • US constitution: rigid separation – Art 1: legislative power Congress; Art 2: executive power President; Art 3: judicial power Supreme Court + other courts; checks + balances – e.g. President may veto legislation but 1/3 of House must support; e.g. President appoints judges, but Senate must approve.

  UK: weak SOP between executive + legislature.

  - No formal SOP in UK: uncodified constitution, pragmatic not principled development – no upheaval since late 17C (cf. USA, France) overlaps (e.g. Queen: head of all 3 organs).

  - Parliament (usually) controlled by govt. – [Ld Hailsham]: ‘elective dictatorship’ clearly contrary to SOP.

  • structural factors: Parliamentary system

    • convention: executive (PM, ministers) drawn from Parliament + tend to dominate it (+ PM can dissolve Parliament) – [Bagehot]: ‘efficient secret’ of the constitution.

    • FPTS elections (usually return majority) + mass political parties: whip system + culture of political patronage.

      • [Barendt]: ‘the advent of mass political parties has destroyed the semblance of such a system which existed a century ago. Except on rare occasions when there is a significant party split, the government effectively controls the legislature’.

    • govt. defines parliamentary agenda.

    • delegated/subordinate legislation: govt. making law; little scrutiny from govt. (e.g. Orders in Council).

    • weak upper chamber: convention – HoL will not reject bills giving effect to manifesto; anyway can only delay (Parliaments Acts 1911 + 1949).

  • prerogative powers: Parliamentary scrutiny difficult (esp. e.g. foreign affairs).

  - BUT: some SOP – statutes + conventions (cannot judge UK by theoretical standard: pragmatic + gradual constitutional development).

  • 1. Bill of Rights 1688: supremacy of Parliament.

  • 2. House of Commons Disqualification Act 1975:

    • s1: members of civil service, police, army cannot be MPs;

    • s2: limit on no. of MPs who can be ministers (95) prevents complete executive control.

  • 3. parliamentary scrutiny of executive: questions + debates; general + select committees; PCA.

    • Constitutional Reform and Governance Act 2010: parliamentary scrutiny of int’l treaties.

  • 4. conventions – executive accountable:

    • individual ministerial responsibility: ministers accountable to Parliament for dept. + personally.

    • collective cabinet responsibility: cabinet responsible for govt. actions – can face no confidence vote.

  • 5. some independence: Private Members’ Bills (priority on some days).

  - Overall: significant overlap – but structural.

  • [Bolingbroke]: UK does have constitution: system of rules, laws, institutions.

    • pragmatic evolution: no political upheaval since late 17C.

  • Parliamentary system: overlap inevitable most govts. since 1945 have had majority (but not necessarily: small/no majority in 1974; 1977-79; John Major Eurosceptic rebellion; current coalition more independence).

  Practical SOP: independent judiciary

  - Judges well insulated.

  • security of tenure: Act of Settlement 1700; s11 Senior Courts Act 1981 (CC, HC, CoA); s33 CRA 2005 (SC).

  • immunity from suit: for actions reasonably believed to be within jurisdiction even if malicious (Sirros v Moore).

  • open courts.

  • political independence: conventions – exec. will not criticise decisions; MPs do not discuss current cases (sub-judice rule); judiciary will not involve self in party politics; judges cannot sit in Commons (s1 HCDA 1975).

    • but now less?: exec. criticises judges (e.g. Abu Qatada); judges involved in poltics (e.g. Hutton Enquiry).

  • Art 6 ECHR: limits quasi-judicial functions of executive (ex p Anderson: HS cannot determine life sentence tarrifs).

  - Decisions: instances of ‘judicial law-making’, but also clear judicial consciousness + respect for principle of SOP.

  • Ev. of lack of SOP: ‘judicial law-making’ – treading on toes of legislature.

    • [Ld Denning, Magor and St Mellons]: courts should ‘fill in the gaps’ – but criticised by HoL.

    • Shaw v DPP: courts impose purpose of law from archaic authority.

    • Gillick v W Norfork HA: CoA holds up liability for giving contraceptive advice to minors.

    • Airedale NHS Trust v Bland: makes up law to allow taking Bland off life support.

    • R v R: intermarital rape effectively made illegal by judges.

    • GCHQ: court overrules prerogative power.

    • + judges influence statute (e.g. Criminal Justice and Public Order Act 1994).

    • BUT: Parliament supreme: judicial law-making bounded + allowed by Parliament.

      • War Damages Act 1965: overruling Burmah Oil v LA.

      • Terrorist Asset Freezing (Temporary Provisions) Act 2010: overruling SC in HM Treasury v Ahmed that 2 orders in council incompatible with UN Act 1946.

  • BUT: judicial respect for SOP (+ traditional dominant notion of Parliamentary supremacy).

    • Entick v Carrington: court refused to recognise authority of SS to issue warrant.

    • Malone v CC MP: judge refused to create common law right of privacy.

    • M v HO: HL – minister should have obeyed injunction to bring back asylum seeker (executive cannot question law).

      • [Ld Donaldson]: ‘the judiciary had to ensure that … Ministers are accountable to the law for their personal actions’.

    • ex p Fire Brigades Union: minister cannot exercise prerogative to defeat will of Parliament by refusing to consider to implement statutory scheme (executive must give effect to will of legislature).

      • justified by SOP: [Ld Mustill]: Parliament has a legally unchallengeable right to make whatever law it thinks fit. The executive carries on 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.

    • Rossminster

    • Duport Steel v Sirs: [Ld Diplock]: ‘it cannot be too strongly emphasises that the British constitution though largely unwritten is firmly based on the SOP.

    • McGonnell v UK: greater SOP enforced in Guernsey (breach of Art 6 ECHR) influenced CRA 2005.

    • R(A) v SSHD

      - Recent developments: strengthening SOP – more determined + less deferential judiciary.

  • 1. growth of judicial review (esp. after GCHQ): explained as upholding will of Parliament vs. executive.

    • more substantive (idea of proportionality – influence of HR):

      • M v HO

      • A & Others: detention without trial of foreign nationals (s23 ATCSA 2001) incompatible with Art 5 (derogation under Art 15 disproportionate) + Art 14 ECHR because discriminatory.

        • [Ld Hoffmann] dissent: derogation invalid because no ‘emergency threatening life of nation’ (although N.B. refuted by Strasbourg).

        • [Ld Bingham]: defended judicial decision-making as democratic under HRA 1998.

        • (cf. earlier deference: Liversidge v Anderson; Chandler v DPP).

    • broader scope: more areas...