Topic 3

The Separation of Powers revision notes

I)

Separation of powers in general

Developed
by
Aristotle,
John
Locke,
furthered
by
Monstesquieu
- Idealist description of the English constitution
- 3 branches of government (legislative, judicial, executive) to
correspond to the three functions
- All should be exercised by different people
- Legislature and executive should have powers to limit and check
one another notion of checks and balances by which the three
branches might legitimately influence or even impose certain
limits on the actions of one another.

A political theory, not a legal principle

prescribes what ought to happen if a particular goal is to be
achieved

Forms of separation of powers:

a) Pure all 3 functions completely separate
b) Partial, based on checks and balances (US)

Traditionally, the doctrine required a threefold classification

of functions
- ...but now depends on the arrangements of the state. In UK, the
processes of law-making, administration and adjudication are not
clearly separated; however, still have to ask whether powers are
appropriately allocated and whether effective check mechanisms
are in place.

Bradley and Ewing -> threefold meaning of the doctrine of

sep of powers
a) The same person should not form part of more than one of the
governmental bodies
b) Governmental organs should not control or interfere with each
others work
c) One organ of government should not exercise the functions of
another

Why do we need separation of powers?

- Montesquieu principle helps to avoid tyranny
- John Locke principle concerned with efficiency of government
and avoidance of tyranny

Munro - aimed at avoiding absolutism by preventing the

monopoly of power

Critique of the principle of separation of powers

- Marshall Its impossible to define with precision what the exact
functions of government are and to determine to whom they
should be allocated. Judicial independence is always very
important but there is a frequent fusion between legislative and
executive branches(as in UK). The doctrine is therefore far to
imprecise and incoherent to form the basis in the analysis or
critique of the constitution.
- John Locke : there are no material differences (only formal and
procedural) between legislature, judiciary and executive, so the
principle fails to explain why certain tasks should be given to one
rather than the other. The principle is irrelevant as a safeguard
from tyranny what prevents it is the democratic control through
the House of Commons and the party system.

Defending the principle of the separation of powers

- Barendt: it is possible to define in general terms the three
functions, which are allocated by a constitution to particular
bodies or institutions. Such a distribution is enforceable by courts
and they are entitled to take the final decision in practice of
whether the function is judicial, executive or legislative.
- The separation of powers reinforces democracy, since citizens
expect that the elected Parliament will take most of the
fundamental decisions which affects them and the principle
ensures it is so
- The allocation of functions is a way for achieving the avoidance
of arbitrary government and tyranny. It therefore doesnt matter
so much whether powers are allocated precisely to the right
institution.
- The pure principle of sep of powers does not take into account
functions of government which do not fall exactly within one of
the three divisions, while the partial sep of powers does.
- The principle should hence be explained as a network of rules
and branches which ensure that no power of concentration ends
up in the hands of one
- Madison: The principle does not operate in vacuum and, setting
aside its theoretical defects, it can be seen that it helps the
courts to protect the individuals rights and to prevent one
branch from accumulating excessive powers.
- Bagehot: although there is no effective separation of powers in
the sense of checks and balances between legislature and

executive in UK, but the doctrine plays a role in the UK

constitution its purpose is to protect individuals liberty
(through the division of power) and not identify the best holder
for a particular kind of power.
Barber: the core of the principle is efficiency, not liberty; pure
separation of powers is impractical and some overlap of function
(like in UK) is actually welcomed.

ii) Separation of powers in UK

Legislature and executive

- Walter Bagehot: the efficient secret of the English constitution
may be described as the close union, the nearly complete fusion
of the executive and legislative power.
- Example: Parliamentary executive, which is headed by the
ministers (under the Queen as the ceremonial head of state), all
of whom are drawn from the legislature and who are also capable
of exercising a considerable amount of influence in regards to the
proceedings in the elected House. In terms of personnel, there
definitely is a degree of fusion between the executive and the
legislature. Bagehot, however, thought it to be good, in that it
made the government work better.
- Further overlap can be seen in the context of delegated
legislation. Under the separation of powers, the constitutional
function of the legislature is to enact laws, while the role of
executive is to execute and apply it. In UK, the Parliament,
through delegated legislation, entrusts a law-making power to
executive. Justifiable on practical necessity grounds; however,
clearly the separation of powers between legislature and
executive is one where the equal powers are counter balanced
(Tomkins).

Legislature and judiciary

- Largely separated, at least in so far as personnel is concerned a
judge cannot be a member of the House of Commons
- Constitutional Reform Act 2005 abolished the office of Lord
Chancellor which could have previously been cited as a classic
example of a fusion of powers this was done to enhance judicial
independence and to preserve the sep of powers between the
legislature and the judiciary
- Vice Chancellors role as head of judiciary was also abolished
- The dual role of the Law Lords, who until recently sat as Lords of
Appeal in Ordinary in the highest court of appeal, in addition to
participating in debates and legislative functions of the Upper

House has been amended by the 2005 Act. Following its

implementation in 2009, the Law Lords were removed from the
House of Lords and became new justices of the Supreme Court.
2005 Act ensured that Vice Chancellor will only be able to
appoint judges as recommended by the newly created Judicial
Appointments Commission this will lessen the executive control
of the judiciary
Common law judge made law/ oversteps the legislative function
of the legislature ( Lord Steyn in Brown judges to and must
make law in the gaps left by Parliament. Some matters are
particularly thought of as requiring judicial creativity.
Lord Goff: the development of law by judges is different from
legislation, but although the boundary exists, it varies from case
to a case. The question is where such boundary has to be drawn.
Consider Shaw v DPP here, the HL essentially made a new
offence of conspiracy to corrupt public morals a decision at
odds with the principle of sep of powers.

Judicial independence
- Preserves the partial separation of powers
- Lord Steyn in Anderson the constitution never rigidly
embraced the principle of separation of powers and the
legislature and executive are close. Separation of judiciary and
legislative and executive branches is a strong principle of UKs
government system and is enforced through judicial
independence, access to justice and the rule of law.
- Turpin and Tomkins argue that the courts have only considered
the principle of sep of powers as a juridical principle, hence
failing to transform it into a general principle of constitutional law
- Case example: Anderson; whether it is right for the executive to
have the power to determine how long a convicted offender will
remain in custody and is the fixing of the tariff a sentencing
exercise the court defended its judicial function, in accepting
that the fixing of tariff was a sentencing exercise and should be
left up to the courts to exercise. The imposition of a sentence was
a part of criminal trial and the Home Sec was not independent of
the executive; hence, this was a clear violation of the principle of
sep of powers.
- Judicial independence is now guaranteed by s3 of the 2005 Act
the first such guarantee in statutory form it requires the Lord
Chancellor to uphold judicial independence and to refrain from
seeking to influence judicial decisions.
- Sub judice rule -> a constitutional principle which states that
Parliament should not interfere in or prejudice judicial decisions.

The rule applies to debates, motions and Questions in both

Houses, where it does not allow consideration of cases currently
before the courts. The rule, however, remains subject to
parliamentary sovereignty.
Judicial independence is preserved by rules on tenure and
remuneration, long embodied in a statutory form s33 of 2005
Act
Woodhouse quotes Denham in suggesting that judicial
independence is not a judicial privilege, but a right of the people
and the duty of judiciary. Judicial independence, however, is not
defined in 2005 Act and remains open to interpretation. In the
absence of written constitution, the principle is convention-based
and hence depends on the commonality of purpose between
various political, institutional and judicial cultures. Although such
an approach has been effective thus far, its interesting to
speculate whether, should changes in government arise, that
commonality of purpose will survive in its present form. The
preservation of judicial independence hangs on the balance.

Relationship between the courts and the Parliament

- **Pepper v Hart -> HL held that, subject to any question of Parl.
privilege, the rule excluding reference to Parliamentary material
as an aid to statutory interpretation should be relaxed as to
permit such reference where legislation was ambiguous or
obscure, or led to absurdity. Held that use of ministerial
statements as an aid to construction of ambiguous legislation did
not violate article 9 of the Bill of Rights 1689. Lord Bridge stated
that reference to Hansard should be allowed, but only in rare
cases he also failed to see how issues relating to increased
costs of litigation for the plaintiff could justify the court
continuing to wear blinkers that conceal the vital clue to what
was the actual intention of Parliament. In enacting the provisions.
- Kavanagh argues that the rule allowing reference to Hansard
and hence allowing the courts to construe ambiguities by
reference to what individual members have said in Parliament
amounts to enforcing un-enacted intentions, which have never
become a binding law. This undermines the rationale and
integrity of legislative process. If statements of ministers are
accepted by the courts, the executive is effectively given a power
to make law- this cannot be reconciled with constitutional
principle of parliaments only power to legislate. The executive is
also allowed to intrude upon judicial function.
- **Wilson qualified Pepper v Hart in 2 ways:

a) Ministerial statements will be assessed a lot more carefully when

referring to Hansard
b) Such statements will not be given the force of law, but will referred
to as an optional background material by the courts.
- Kavanagh argues that following Wilson the courts have a total
discretion of whether to adopt or depart from ministerial
statements, no matter how clear they are, and to adopt its own
views instead. This can be interpreted in 2 ways:
a) The relationship between the courts and the Parliament were
brought back to its usual self, in that the courts will continue
mainly referring to the enacted intentions of Parliament when
performing their function of judicial interpretation
b) By retaining that choice, the courts have increased the scope
of their function and got dangerously close to overstepping
the boundaries reflected in the partial doctrine of separation
of powers.

Separation of powers is recognised by the common law

- Lord Diplock in Duport Steels v Sirs said that the British
constitution is firmly based on the separation of powers in that
Parliament makes the laws and the judiciary interpret them. In
this case, separation of powers was used to draw a distinction
between the legislative and judicial functions with a view to
keeping the judiciary within bounds.
- In M v Home Office Lord Templeman emphasised that
Parliament makes the laws, the executive carry the laws into
effect and the judiciary enforce them.
- In Fire Brigades Union case, Lord Mustill discussed the doctrine
in his dissenting judgement, where he said that:
a) Parliament, the executive and the courts each have their
distinct and largely exclusive domain
b) Parliament has a largely unchallengeable right to make
whatever laws it thinks right
c) The executive carries on the administration of the country
d) The courts interpret the laws and see that they are obeyed

iii) Separation of powers after the HRA 1998

a) Distribution of powers between the legislature and the

executive
Loveland
- The Act gives too much power to the government at the expense
of Parliament (s10(2) of HRA 1998 if a Minister considers there

are compelling reasons for proceeding under this section, he may

by order make such amendments to the legislation as he
considers necessary to remove the incompatibility
Ewing
- S10(2) represents a substantial concession by the government
comparing to the initial proposed clause and the result is that the
principle of primary legislation being amended or repealed by
primary legislation only remains intact
- The stipulation as to the compelling reasons should be seen as
a form of a residual power and one which in any event will be
subject to judicial review.
Loveland in response to Ewing
- Even if administrative law constraints are placed on the minister
in terms of judicial review, they are of extremely loose nature. If
one takes human rights seriously, then any breach might be
thought to be serious enough to fall under the definition of
compelling reasons and as such require immediate remedial
action by the minister.
- The courts (in relation to judicial review) might be reluctant to
strike down a remedial action following a declaration of
incompatibility by a superior court.
b) Distribution of powers between the legislature and the courts

S3 of HRA 1998
- the courts are instructed to read and give effect to legislation, so
far as is possible, in a way which is compatible with the
Convention rights hence, Parliament has prescribed a principle
of construction to the courts; something that has not been done
before.
Purposive approach
a de facto insertion of additional clauses into legislation by the
courts; a technique hard to reconcile with the traditional principle
of sep of powers (Parliament has a legislative role, courts an
interpretative role).
RvA
- Lord Steyn In accordance with the will of Parliament as
reflected in s3 it will sometimes be necessary to adopt an
interpretation which linguistically may appear strained. The
techniques to be used will involve the reading down of express
language in statute but also the implications of provisions. A
declaration of incompatibility is a measure of last resort.
- Lord Hope Compatibility with Convention rights is the sole
guiding principle. But the rule is only a rule of interpretation. It

does not entitle the judges to act as legislators....Compatibility is

to be achieved only so far as this is possible...Plainly this will not
be possible if the legislation contains provisions which expressly
contradict the meaning which the enactment would have to be
given to make it compatible.
Ghaidan v Godin Mendoza
- Lord Nicholls confirmed Lord Steyns approach in R v A, but
went on to stress the importance of preserving the intentions of
Parliament and the principle of separation of powers between the
Parliament and the courts.
The courts recognised the potential dangers of taking the principle
of interpretation too far and overstepping the traditional boundary
between Parliament and the court. Kavanagh has suggested that
such a distinction is only useful in so far as such a distinction
between the legislation and the interpretation can be drawn. She
went on to state that in so far as HRA is concerned the courts both
make and apply the law.
c) Distribution of powers between executive and the courts

Exercise of judicial review and the test of proportionality

- The courts have traditionally been reluctant to apply it as a
ground for review of governments actions the necessary in a
democratic society test requires much higher form of scrutiny
that traditional grounds of review under administrative law

Initial approach of the courts

- Lord Steyn in Daly there is an overlap between the tradition
grounds for review and the proportionality test, as most cases
would be decided the same way whichever one is adopted.
However, the latter requires a higher intensity of review.
Proportionality review what is it?
- the courts have to ask themselves whether the limitation of the
right in question was necessary in a democratic society in
respect to the objectives it was intended to serve. A shift of
power from executive towards the courts as to matters of
substance?
- Contrast with Lord Hope in Doherty v Birmingham Council
where he suggested that proportionality is simply an additional
ground of review and thus should not call for extreme statements
purporting a shift of power from executive to the courts.
Principle of deference what is it?
the courts have been cautious in their application of Convention
(a culture of judicial deference has developed in te courts, in that

judges can be rather reluctant to interfere with laws enacted by

democratically elected Parliament).
Lord Hope in Kebilene in some circumstances it will be
appropriate for the courts to recognised that there is an area of
judgement within which the judiciary will defer, on democratic
grounds, to the considered opinion of the elected body or person
whose act or decision is said to be incompatible with the
Convention.