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 other’s 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 It’s 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 arb itrary
government and tyranny. It therefore doesn’t 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
individual’s 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 individual’s 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 Chancellor’s 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 UK’s
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, it’s 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 parliament’s 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 Steyn’s 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
government’s 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’.