UK SEPARATION OF POWER

SEPARATION OF POWER IN UNITED KINGDOM; A QUICK SURVEY IN THE 21TH CENTURY JACKSON, R. LL.B UNIVERSITY OF DAR ES SALAAM A CLASS ASSIGNMENT ADMINISTRATIVE LAW Separation of power at glance; Separation of Powers is a historical incidence, a fluid concept which shows the potential for progressive development from time to time, which under no circumstances be discussed in an isolation with its historical background1. Although an extensive account of the intellectual history of the separation of powers is beyond the scope of this inquiry, the intellectual history of the separation of powers reveals no single recognized version that could have served as the necessary baseline2. The foundation of this doctrine can be traced back to the time of Aristotle, in his political science, Aristotle discusses the three elements of policy namely procedural administrative and legal functions, which can be regarded as the kernel of the separation of powers doctrine3. Following Aristotle, Polybius talked about the separation of powers doctrine. He highly praised the principle of checks and balances between the powers of Archon, the Senate, and the Tribune in Roman politics. Polybius further developed Aristotle’s separation of powers doctrine. Following Polybius, the separation of powers doctrine was expounded by Cicero4. The separation of powers doctrine was in existence for a long period of time,

1

Parry, K. (2012). Constitutional change: timeline from 1911: House of Commons Background Paper (Page 2-3).the publication tries to highlight major constitution change which on somehow have a great influence to the 21th century legal doctrine of separation of power; the Parliament Act 1949 that reduced the powers of the House of Lords to delay bills, Parliamentary Commissioner Act 1967 created office of Parliamentary Commissioner for Administration (or Ombudsman) to investigate administrative action taken on behalf of the Crown. 2

Manning F, J. (2011). HARVARD LAW REVIEW: separation of powers as ordinary interpretation. Page 1993-1994.

Aristotle in his book (“The Politics”) proclaimed that: There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element. 3

4

W. Bingxin, (2013) New Theory on Leadership Management Science, Chartridge books oxford, London. Also available (http://www.chartridgebooksoxford.com/index.php/current-titles?id=36 ) Theory of this doctrine was mainly expressed in the

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especially in the middle Ages in Western Europe, before it almost disappeared. In the seventeenth century, the publishing of ‘On Government’ written by the famous British thinker John Locke contributed much to the development of the doctrine of separation of power5, the French Enlightenment thinker Montesquieu further developed the separation of powers theory, and he made his famous theory of the “separation of powers6.” (The Spirit of Laws)”. According to a strict interpretation of the separation of powers, none of the three branches may exercise the power of the other, nor should any person be a member of more than one branches. But his approach confusingly invoked not only separation of powers theory, but also English conceptions of balance among the three organs of the state7 THE SEPARATION OF POWERS IN UNITED KINGDOM; 21ST CENTURY. Basically any country with unwritten constitution have parliamentary sovereignty and legislative monopoly. The notion parliamentary sovereignty, demise the doctrine of separation of power in which it brings a hierarchical structure of a government when one organ of the state is top of others, and not coapply as the doctrine requires, The UK is basically a country with a partial separation of powers, but historically it has never had a written Constitution, thus resulting in the legislative powers having a higher position in the separation of powers than the other two powers (executive and judicial power). The British Parliament can pass any new bills but the judiciary had no power to declare the new bill invalid.

‘Republic’. He advocated that a republican form of government should have the advantages of three constituents, namely the monarchy, the nobility and the civilians, and that there should be a combination and ongoing reform of these three branches) page 213-214. 5

Ibid (Locke made a detailed description of the theory of the separation of powers. He divided power into legislative, executive and foreign branches and wrote that these three powers should be exercised by different state organs. Legislative power belonged to Parliament, executive power to the King.) 6ibid

(In Spirit of the Law, he divided state power into three kinds, namely legislative, executive and judicial powers. This socalled separation of powers meant that by law the three powers were handed over to three different state organs) Ibid (Page 1995) A traditional theory of English government held that liberty was preserved because the three estates — the monarchy, the aristocracy, and the commons — checked one another. Sometimes political theorists conflated the ‘English theory of mixed or balanced government with the separation of powers’, even though the two represent distinct governmental strategies. 7

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“No writer of repute would claim that [the separation of powers] is a central feature of the modern British constitution8” It was said more than 36 years ago (1977). But does it still reflect the situation of the 21st century? Basically no! In deed “… the theory of separation of powers requires that they be kept … the answer is that the separation of power is not part of our constitution (Hansard HL Vol 665, Col 57) cited in9 The United Kingdom society is excessively dynamic, and the following are the foremost changes in 2000s which negates the Adam smith’s assertion. Recent years have seen something of a rejuvenation of ideas associated with separation of powers in the British constitution, with – inter alia – the Human Rights Act 1998, the Constitutional Reform Act 2005 and the increase in currency of common law constitutionalism each exercising a discernable influence. The cumulative effect of these two legislative initiatives is to extend the judicial checking role into spheres traditionally associated with the elected branches of government and to enhance the institutional separation of the judges from the executive and legislature. Taken together, the two have realigned the relationships between the judicial and elected branches of government, and, in so doing, have revitalised the debate over the separation of powers in the contemporary constitution. In form the traditional obstacles to any complete realisation of separation of powers remain in place, in substance the checking and balancing abilities of the courts have been extended to such a degree that one commentator has gone so far as to suggest that the sovereignty doctrine has effectively been replaced by a uniquely British version of separation of powers.

8 9

S. A. De Smith, (1977). Constitutional and Administrative Law 3rd edition, p.36. Ryan M (2009) unlocking constitutional and administrative law Hodder Arnold London P.87

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THE CONSTITUTIONAL REFORM ACT 2005 In the Constitutional Reform Act 2005, the Government and Parliament reformed some of the areas where, in the UK, the “powers” had been least separated. The Minister responsible for the bill in the Commons, Christopher Leslie, told the House that “we want to ensure that we clearly define the separation of powers, where it is appropriate, but that is not incompatible with having a partnership between the different branches of the state.10” By establishing a Supreme Court, ridding the Lords of Appeal, the Constitutional Reform Act created a separate Supreme Court, separating out the judicial role from the upper House. Lord Falconer told the House that “the time has come for the UK’s highest court to move out from under the shadow of the legislature… the key objective is to achieve a full and transparent separation between the judiciary and the legislature” S.33 of the constitution reform Act, provide for security of tenure in relation to the future justices of the new supreme court. Salaries and allowances,11 Resignation and retirement12. Judicial independence is boosted by giving senior judges security of tenure which means that their sustained office is not reliant on the favor of the executive. Although the executive is involved in the appointment of the judiciary, they do not remove seniors’ judges. Even though the security of tenure is considered still there is so many rivers to cross13 Subjecting the legislative function to judicial review, most obviously perhaps, the legal sovereignty of Parliament indicated that the particular responsibility of the legislature was to make law, seemingly denying this function to the other branches of government, and more importantly placing legislative

10

HC Deb 26 Jan 2004: c27 cited in the Benwell R and Gay O (2013) the separation of power. The house of common library page. 8. 11

Section (34) of the constitution reform Act 2005

12

Section (35) of the constitution reform Act 2005

13

Although the senior judicial are protected, the lower ranks, such as circuit judges, are not as they can be removed by the lord chancellor (due to incapacity or misbehavior) albeit in accordance with prescribed procedures under the constitution

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instruments passed by Parliament outside of the courts‟ powers of judicial review.14 While delegated legislation and the progressive development of the common law undermined Parliament’s legislative monopoly, a distinct hesitance to overstep perceived constitutional boundaries is nonetheless readily discernable in many judicial invocations of separation of powers in the British context.15 The Lord Chancellor before the constitutional reform act of 2005 had the following powers 

As the speaker of the house of lord (legislature)



As a government minister (executive)



Head of the judiciary (judicial)

Therefore the Lord Chancellor was part of the executive, the legislature and the judiciary. The Lord Chancellor’s role changed drastically on April 3 2006 as a result of the Constitutional Reform Act 2005. This latest major change to affect the judiciary has been described as the most significant since Magna Carta. The Act establishes the Lord Chief Justice as President of the Courts of England and Wales and Head of its Judiciary, a role previously performed by the Lord Chancellor. For the first time an express statutory duty is placed on the Lord Chancellor and other Ministers of the Crown to protect the independence of the judiciary. For the first time in its 1,000-year history, the judiciary is officially recognised as a fully independent branch of the government16. The Constitutional Reform Act 2005 removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now filled by the Lord Chief Justice. The Lord Chancellor no longer sits as Speaker of the House of Lords, which now elects its own Speaker. This was intended to create a more formal separation of powers. One way in which the Constitutional Reform Act sought to 14

British Railways Board v. Pickin [1974] AC 765. Also R v. Secretary of State for Transport, ex parte Factor tame (No.2) [1991] 1 AC 603 15

for example: Duport Steel v. Sirs [1980] 1 WLR 142, 157 (Lord Diplock),

16

www.judiciary.gov.uk/about-the-judiciary/introduction-to-justice-system/history-of-the-judiciary#pageTitleContainer (accessed on 11/17/2013)

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address this problem was to reduce the danger of threats from the executive by translating the political obligation on the executive to respect judicial independence into a legal one by including in the Act a provision that the Lord Chancellor and other ministers involved in the administration of justice must respect judicial independence. A key question is whether the provisions can of themselves ensure that judges are protected from improper political pressure in their decision-making on a day-to-day basis Judicial Appointments Commission was introduced by the Constitution reform act of 2005. For England and Wales. Judges are represented on the Commission, but do not hold a majority and the Commission has to have a lay Chair. The Commission recommends candidates to the Lord Chancellor, who has a very limited power of veto. As Lord Phillips of worth stressed that The Act gives the Commission a specific statutory duty to “encourage diversity in the range of persons available for selection for appointments”.17 Separate procedures apply to the appointment of Supreme Court judges, which take account of the fact that the Court has a UK wide remit. Although this system is still a bit controversial.18 THE HUMAN RIGHTS ACT OF 1998 (OPERATED ON OCTOBER 2000) The Human Rights Act of 1998 have been used in this study because had a far reaching effect19 in particular has done much to alter the balance of power in the British constitution as it has been

17

Available online www.ud.ac.uk/constitution-unit/event/judicial-independence-events/launch (accessed 17/11/2013) The new process has also been criticised for being slow and involving the President and the Deputy President of the Supreme Court in the selection of their own successors, UCL Constitution Unit, ‘Judicial Independence, Judicial Accountability and the Separation of Powers’, Note of Seminar at Queen Mary, University of London, 11th May 2011 cited in Benwell R and Gay O Supra page.9 18

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Gordon Brown raised the possibility that such a document might be published in time for the 800th anniversary of the Magna Carta in 2015 (http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/security-andliberty/from-the-human-rights-act-to-a-bill-of-rights/) also Similarly Dingle, Lesley and Miller, Bradley (2005) "A Summary of Recent Constitutional Reform in the United Kingdom," International Journal of Legal Information: Vol. 33: Article 7. Available at: http://scholarship.law.cornell.edu/ijli/vol33/iss1/7 because the Lord Chancellor and Lords of Appeal in Ordinary who together constitute the Appellate Committee of the House of Lords – the Law Lords – also sit in the House of Lords, which is part of the legislature, their decisions cannot be seen to be politically impartial. Based on the same logic, recent rulings in the European Court of Human Rights imply that decisions of the Appellate Committee of the House of Lords are ‘incompatible with Article 6 of the European Convention on Human Rights, , which deals with access to independent and impartial tribunals’ page 82

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traditionally understood. It is in the exercise of the courts‟ powers under s.3 (1) and s.4 of the Act that this realignment of the separation of powers has been most marked20. By bringing questions of rights into the sphere of competence of the judiciary the Act has done much to subject various areas of policy many of which were previously thought to lie beyond on the periphery of judicial review into the realm of judicial supervision. The checking and balancing function of the judiciary has as a result been significantly enhanced. More specifically, by affording the judiciary a power to either interpret statutes in order to achieve compatibility with the Convention Rights21, or if such interpretation is impossible – to issue a declaration of incompatibility,22 The Human Rights Act also provides the judiciary with the opportunity to temper the effects of rightsinfringing legislation or to apply pressure for legislative action to address the suggested incompatibility between primary legislation and those rights given further effect under the Human Rights Act.23 While the ability of Parliament to legislate subject to no constitutional restraints is, theoretically at least, preserved,24 sections 3 and 4 of the Act ensure that all legislation is susceptible to judicial reinterpretation or to the coercive political force of a declaration of incompatibility.

Section 3(1) of the Human Rights Act 1998 provides: “So far as is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.‟ If such an interpretation is not possible, the higher courts might under section 4 issue a Declaration of Incompatibility in respect of the relevant statutory provision(s). A declaration of incompatibility „does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given‟ and does not place the elected branches of government under any enforceable obligation to address the supposed incompatibility. 20

21

Section 3(1) of the human right Act.

22

Section 4 of the human right Act.

23

Section 1(1) Human right Act.

Section 4(6) Human right Act provides that, “a declaration under this section … (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.‟ See also s.3(2)(b) Human Right Act. 24

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It is in the exercise of the courts powers under s.3 (1) and s.4 of the Act that this re-alignment of the separation of powers has been most marked.25 While the s.3(1) interpretative power is subject to the implied and express limitations that interpretations be both “possible” and go with the grain of the legislation under review, the courts have nonetheless been able to „modify the meaning, and hence the effect, of primary and secondary legislation.‟20 Use of s.3(1) is the more immediate of the courts weapons against rights-infringing legislation and – as a result of utilising the ‘politically entrenched’ interpretative powers of the courts – is difficult, though not impossible, for the legislature to overturn.26 Though the courts may not explicitly invalidate legislative provisions that infringe the Convention standards, the power under the Act to review the compatibility of domestic legislation has nevertheless drawn comparisons with stronger-form mechanisms of judicial review27, REMARKS The occurrence of overlap stuck between the different powers even pillar to the constitution reform act 2005 are such that it is impossible to claim that there is an absolute separation of powers in the UK constitutional. Indeed, an absolute separation of power would in practice be counterproductive in that it would prevent the abuse of power by preventing the exercise of power28, leading to a constitution deadlock leaving the government in a standstill

Section 3(1) of the Human Rights Act 1998 provides: „So far as is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.‟ If such an interpretation is not possible, the higher courts might – under section 4 – issue a Declaration of Incompatibility in respect of the relevant statutory provision(s). A declaration of incompatibility „does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given‟ and does not place the elected branches of government under any enforceable obligation to address the supposed incompatibility. 25

26

To date, no judicial use of s.3 (1) has been legislatively overturned during the life of the Human Rights Act.

27

Masterman R, The Form and Substance of the United Kingdom’s Separation of Powers

28

Separation of Power; available onlinehttp://bookshop.blackwell.co.uk/extracts/9780199232857_parpworth.pdf(accessed 17/11/2013).

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“I think the independence of judicial and the rule of law a very difficult to sever, it is a role of the judiciary, in practices to uphold the rule of law, to apply the rule of law, and to do that they have to be independent of outside influence29” by lord Philips The effect of these developments has been to move en route for a system of judicial checks and balances within the British constitution that embraces the potential at least to involve all exercises of statutory and prerogative power. Following the implementation of the Constitutional Reform Act 2005, the legality of these extended judicial checks is now supported by the increased structural independence of the courts, despite the fact the functional constitutional boundary is preserved through the adherence of the courts to the structured test of proportionality and the capacity of the courts to afford weight to the decision-making processes adopted by political actors.

29

Meeting with chief justice HL 213 (2006) Q7 cited in Mark R op cit page 362

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REFERENCE: 1. Bradley A.W & Ewing D.K, (2007) constitutional and administrative law, Pearson Longman, London. 2. Mark R (2009), unlocking constitutional law and administrative law, Hodder Arnold, London. 3. W. Bingxin, (2013) New Theory on Leadership Management Science, Chartridge books oxford, London 4. S. A. De Smith, (1977). Constitutional and Administrative Law 3rd edition. 5. Department for Constitutional Affairs - www.dca.gov.uk 6. Parliament - www.parliament.uk 7. The UCL Constitutional Unit - www.ucl.ac.uk/constitution-unit 8. The Hansard Society - www.hansardsociety.org.uk 9.

The united kingdom judicial www.judiciary.gov.uk

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