Separation of Powers

i) legislature: parliament, monarch, House of Lords, House of Commons

ii) executive: sovereign, PM, cabinet and other ministers, civil service, local authorities, police and
armed forces
iii) judiciary: court system state v state, state v individual, individual v individual
Bolingbroke: the safety of the whole depends on the balance of the parts.
Montesquieu: There would be an end to everything if the same man, or the same bodywere to
exercise those three powers.

The UK model: evolved in 19th C under impetus of Reform Act 8132 legislature and executive
closely inter-related Cabinet is link between executive and Parliament.
Walter Bagehot in The English Constitution: the efficient secret of the English constitutionmay be
described as the close union, the nearly complete fusion, of the executive and legislative powers.
BUT
Lord Diplock: It cannot be too strongly emphasised that the British constitution, though largely
unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary
interpret them. Lord Steyn:

What do we mean by the separation of powers?

1. The same person should not form part of more than one of the three organs of government;
2. One organ of government should not control or interfere with the work of another;
3. One organ of government should not exercise the function of another.
How are separate roles and functions allocated between 3? Checks and balances exist between them?:

Executive and Legislature

i. Personnel
Government (Executive) personnel come from the Legislature. Ministers of the Crown must be
Members of either House of Parliament. The PM and the Chancellor of the Exchequer must be
members of the House of Commons.
ii. Overlap of functions
Secondary/delegated legislation: laws, rules and regulations made by government departments, local
authorities, and other public bodies under the authority of an Act of Parliament.
Does secondary legislation enhance efficiency by relieving Parliament from scrutinising every detail of
legislation or is it rather an abuse of power by the Executive?
iii. Control of functions
Parliamentary procedures for scrutiny of government: a vote of no confidence; Her Majestys
Opposition; Question Time, debates and select committees.

Executive and Judiciary

i. Personnel
Judicial Committee of the Privy Council, the Lord Chancellor
ii. Function
Judges as chairmen of tribunals of inquiry, eg Paddington Rail Crash enquiry, sinking of the Herald of
Free Enterprise, arms to Iraq, Hillsborough Stadium disaster, BSE in cattle.
Harold Wilson, leader of the opposition in 1963, said it was fraught with danger to turn to the
judiciary to probe matters which are properly the sphere of the executive.
The Home Secretary and tariff-setting represents a further executive/judiciary overlap.
R v Secretary of State for the Home Office ex parte Anderson [2002]: HSs power was a breach of
Andersons rights (HRA Art 6 right to a fair trial). Power now lies with Lord Chief Justice.
iii. Control of functions
Executive currently appoints judiciary: Judges appointed by Lord Chancellor up to and including the
High Court. Law Lords and Lord Justices of Appeal are appointed by the PM on the advice of the Lord
Chancellor.
Judicial review of executive action:
M v Home Office: Home Secretary and various Home Office officials failed to prevent Ms departure,
who had obtained an order from Garland J that he should be kept in the UK while his case was being
considered. M could be guilty of contempt of court. Lord Donaldson in CA: Ministers are not immune
from legal rulings which ordinary citizens have to obey. It would be a black day for the rule of law and
the liberty of the subject if Ministers could not be held to account.
Legislature and Judiciary
i. Personnel
House of Lords, Lords of Appeal in Ordinary
ii. Functions
Parliamentary Privilege: power to make own decisions on its internal procedure
The judge as law-maker: Shaw v DPP created new offence: the supreme and fundamental purpose
of the law, to conserve not only the safety and order but also the moral welfare of the state.
See also: Gillick v West Norfolk and Wisbech AHA
RvR
Airedale NHS Trust v Bland
R v Human Fertilisation Embryology Authority ex parte Blood
The Human Rights Act 1998 s3 requires judges to interpret domestic legislation in keeping with EC
laws. s4 declaration of incompatibility. Power to judges.
Parliamentary Sovereignty preserved by HRA. Primary legislation cannot be struck down or
disapplied (s3(2)(b)), and Parl is not a public authority s6(3)
iii. Control of functions
Judges can only be removed from office by an address of both Houses of Parliament to the Crown.
The sub judice rule matters awaiting adjudication of a court may not be raised in debate in Parl,
except those relating to ministerial decisions which can be challenged in court only on grounds of
misdirection or bad fait or to issues of national importance (at Speakers discretion).

The Sovereign
Head of Executive, Legislature and the Judiciary. Is the involvement of the Sovereign in all three
branches a good thing, a bad thing, or an irrelevance?

To what extent do we have separation of powers?

Lord Diplock: Parliament makes the laws, the judiciary interpret them Duport Steels v Sirs
Sir John Donaldson: judges take no account of governments policy British Airways Board v Laker
Airways Ltd.
See also Sir John Donaldson in R v Her Majestys Treasury, ex parte Smedley.
Proposals for reform
Lord Chancellor: Head of the Judiciary, Member of the Cabinet, Speaker of the House of Lords. Is it
wise that he has two seats and acts as two different speakers?
The position of Deputy Bailiff of the Royal Court of Guernsey which comprised several similar
positions was held to be not compatible with Art 6 ECHR by the ECtHR in McGonnell v UK.
The Constitutional Reform Bill 2004 will put relationship between three pillars on a modern footing.

What factors might affect the independence of the judiciary

i) Appointment system
All judges up to High Court appointed by or on advice of Lord Chancellor. Superior Court judges by
PM on advice of Lord Chancellor.
As a socially elite group, do British judges have a limited understanding of those brought before them?
ii) Removal from office
Act of Settlement: superior judges (High Court and above) cannot be dismissed by executive except by
an address to Crown from both Houses of Parl. Except for Lord Chancellor, judges must retire at 70.
iii) Judicial immunity
Judicial proceedings are privileged. Judge of a superior court is not liable for anything done or said in
the exercise of judicial functions Sirros v Moore.
iv) Political ties
Judges are expected to remain politically impartial. All political ties must be severed on appointment to
the bench. Lord Irvine: judges should never give grounds for the public to believe that they intend to
reverse government policies which they dislike.
v) Freedom from bias: Chief Justice Barak of Israeli Supreme Court: judicial independence and lack
of bias are backbone of judges existence.
R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No.2 )
Worry of bias: undisclosed links between Lord Hoffman and Amnesty International automatically
disqualified from sitting on the appeal. Test for bias (R v Gough [1993]) not even applied.