#16722 - Separation Of Powers - Constitutional Law

Separation of powers

[Recent developments]

1. Efforts have been made recently to improve SOP, and make it more apparent –

   1. CRA – introduction of the Supreme Court (instead of HoL appellate committee, which looked suspiciously like a part of the legislature)

      1. Some believe that HRA & art. 6 ECHR led to institutional reforms creating of UKSC – litigation surrounding Donald European case. Registering inappropriateness of HoL appellate committee on the international level led to political force

         1. Having an effect on domestic political process to create UKSC

   2. Changing of the remit of the role of Lord Chancellor in 2005 through CRA

      1. Increased transparency in judicial selection (as opposed to old boys’ network, which is what it seemed to be before).

   3. Home Sec no longer sets tariff for young offenders (Anderson)

2. But many of these changes have gone to merely strengthening the independence of judiciary. This isn’t what we need to be worrying about, it’s the fusion between legislative and executive branches, and the lack of accountability of the executive:

   1. Executive being the initiative taker, drafting bills for a pliant parliament to pass

   2. Broad range of prerogative powers

   3. Henry VIII clauses allow ministers to amend or repeal an AoP enacted before or after without Parliament’s approval

[Nature & theories of SOP + SOP in UK]

1. Three different sense of SOP – all valid

   1. A description of the constitution (Y)

   2. A legal principle (Y – relevant in courts; in that one can bring a case that X infringes on SoP)

   3. A principle of constitutionalism (Y – derived from idea of a state, informs our understanding of a state and how it should be structured)

2. Two types

   1. Pure theory

      1. Believes the three principal functions of government have to be performed by wholly separate institutions, with no interaction at all between them

         1. However, this is both impossible to implement (delegated legislative, judicial interpretation, etc.) and unnecessary – unclear what normative goal this serves, except being a literal interpretation of the doctrine

   2. Partial theory

      1. Really the only sensible option – a theory about institutional interactions, where there is separation, but also connections

         1. Marshall – impossible to define with precision the separate functions of government; universal practice for governments to enjoy massive delegated legislative authority

3. SOP in UK

   1. What people say

      1. Geoffrey Marshall

         1. Principle is a confused collection of arguments that should rather be treated separately

      2. Lord Hailsham

         1. Picture of an elective dictatorship – the executive dominates parliament

         2. Resonates with many modern constitutional scholars – parliament is supine; pliant to the will of the executive – when was the last time parliament voted down a bill proposed by the executive?

         3. Why?

            1. Convention being that Queen invites party winning the most votes to form a government – due to FPTP, very often this will be a party winning majority of seats in HoC

            2. Only branch of government fairly described as the initiative-taker

      3. Walter Bagehot

         1. Fusion of powers between the executive & parliament is the efficient secret of the British constitution

4. Transformation into a legal rule?

   1. HRA has made part of SOP a legal rule instead of just a persuasive principle, by making art. 6 legally enforceable

      1. Anderson – direct legal rule, wrestling from executive what should be in the hands of the judiciary. Courts now have in their defence a tool to ensure judicial activity is not carried out by the executive

      2. No formal separation of powers in the UK due to the absence of a written constitution (B&E)

         1. Thus, no legislation can be challenged on the grounds that it confers powers in the breach of the doctrine – e.g. Fire Brigade Union – SOP is a persuasive force, not a legal rule

[Purpose of SOP]

1. Protection of liberty

   1. Theory –

      1. If the 3 functions were combined in the same institution it would lead to tyranny

         1. Open to the dominant party to enact laws for its own benefit

         2. It would then execute/apply those laws in the way most advantageous to it

         3. If the application of these laws were challenged, it could then adjudicate on the laws and give an interpretation that supported its own view

      2. Madison: "the accumulation of all powers legislative, executive and judiciary in the same hands...may justly be pronounced the very definition of tyranny"

      3. Barendt –

         1. Fundamental purpose being to create friction between institutions, make state action more difficult

            1. Hence, some overlap of the functions and office-holders is welcomed

            2. Justice Brandeis who, in Myers v. U.S., wrote that the purpose of separation of powers “was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.''

         2. Montesquieu & Madison – when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty

   2. Problems

      1. Doesn’t explain how to allocate powers – seems to suggest that the power and roles of organs of the state can be distributed arbitrarily, without concern for proper functioning of the state

         1. Barendt – “No natural division of power between the 3 institutions of the state – division is blurred, and even so far as it can be maintained, no reason to match these powers to corresponding state institutions”

      2. Doesn’t give sufficient consideration to positive liberty – not just freedom from state, but freedom to do X – negative liberty is not enough. State should empower individuals with positive liberty – education/healthcare, etc.

         1. Liberty is not merely the absence of state intervention, it also requires state empowerment

      3. Doesn’t accommodate state’s task of defending its citizens – from other citizens

2. Efficiency (Barber)

   1. Theory –

      1. Promote efficient state action by ensuring that powers are allocated to institutions best able to make use of those powers

      2. For the system to function competently and efficiently, there must be different institutional structures, with individuals of different skills, to perform different functions

         1. Type of institution appropriate for the power it exercises, and the skills of the people/official in the institutions

         2. Must it necessarily be a tripartite system? Could a different system be envisaged, in which the executive & parliament are close? (Bagehot’s efficiency secret)

   2. Requires –

      1. Set of institutions suitable for pursuing ends of the state

      2. Sets of powers suitable for pursuing these ends

      3. Set of skills suitable for these ends

   3. State action characterised by comity and co-operation

      1. Point being to make the state work well, not to stop it working by creating friction

      2. Broad idea to develop interpretations based on the purpose and aim of parliament (Pepper v Hart) – relationship of harmony between parliament and judiciary

         1. Parliament acknowledged generally that it is not the place of parliament to criticize the courts – e.g. speaker’s ruling (1987)

         2. Courts have respected parliamentary privilege and is extremely reluctant to question parliamentary procedure – Pickin. Right is enshrined in Art. 9 of BoR that courts cannot call into question P proceedings

            1. ‘For a century or more both Parliament and the courts have been careful not to act as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict…”

   4. Efficiency however is an empty term – requires defining what we want the state to be efficient at

      1. Aim of state – ensure competent and representative state action to advance the well-being of citizens

3. Balance

   1. Best of both worlds

      1. Efficient state action is the end-point of the efficiency hypothesis, but does it then increase the likelihood of tyranny?

         1. Barber acknowledges that liberty model is still valuable – SOP also requires institutions to check and balance each other

         2. Appropriate balance being struck, in that power is not over-concentrated in the hands of any one institution, yet state functioning is not crippled

      2. In fact, efficiency is imperative in enabling the state to protect positive liberty by empowering individuals with the capacity to exercise their freedom

         1. Negative liberty in itself is utterly without substance – when imagining a destitute failed state with no laws restraining liberty – no one would sensibly claim its citizens are free

[Executive & Legislature]

1. Executive dominance over parliament

   1. Constitutional convention for Queen to invite party most likely to command confidence of HoC to form the government; in a FPTP electoral system, this is most likely the party commanding a majority in HoC. Through party whips enforcing discipline amongst backbenchers to vote along party lines, this makes P compliant to a powerful executive that dominates P

      1. Evidence –

         1. Historically, parliament has rarely refused to pass a bill introduced by the executive

         2. Executive is the only body fairly described as the initiative taker (E&T) – by introducing Bills for a pliant P to pass

         3. Henry VIII clauses allowing executive to amend or repeal even future acts of parliament

         4. Broad range of law-making powers – e.g. Civil Contingencies Act 2004 – destruction of property…

         5. Poor parliamentary scrutiny of delegated legislation

         6. Ministers rarely held responsible by parliament despite the doctrine of ministerial responsibility (Barendt, J&O)

      2. Led to Lord Hailsham describing the domination of parliament by the executive as giving rise to an elective dictatorship

   2. Rebuttal...