Separation_of_Powers

Lord Lloyd once said: ‘the separation of powers is not part of our constitution.’ How far do you agree with this statement in light of the recent constitutional reforms' The earliest government in the world, for instance Mesopotamia took place in the form of kingship where all the powers were in the hands of the Kings. However, such administration inexorably became corrupted and dictatorial. Therefore, the tyrant was dethroned by the community who subsequently instituted an aristocracy where the power was held by a few of the most famous citizens from the class of elite. However, the successors were corrupted by the opportunity to gratify their desires. Thereupon, the community overthrew the oligarchy where political power mostly rested with small segment, usually being the most powerful in the society. A democracy was established but yet the people were potentially debauched by evil leaders which may lead to the collapse of society. The saga mentioned above did show perceptibly that separation of power is of significant importance to ensure an effective and efficient government. This concept is of great antiquity since it is traceable far back to Aristotle, but a clearer exposition is found in De I’Esprit des Lois written by Montesquieu. Essentially, he voiced the necessity for three organs of government, explicitly the legislature, executive and judiciary, to have defined area of power and clear demarcation of functions between them. This is to prevent monopolization of power which in turn may preserve human liberty and protect society from dangers of capricious rule. Due to the absence of a codified constitutional text in United Kingdom, several queries regarding the doctrine have arisen in the society. For instance, Lord Lloyd was of the view that separation of powers was not part of the constitution. This was further explicated by Lord Woolf who believed that there were important departures from the classical doctrine and hence it could never be relied upon as a basis by people. In contrast, Lord Irvine opined that the British constitution was firmly based on separation of powers. The possible answer to these contradictory examinations probably lies with the coming into effect of several Acts of Parliament. As indicated by Sir Ivor Jennings, the Great Britain would have no constitution if a written document is to be meant, but it does have rules determining the creation and operation of government institutions, hence the phrase “British Constitution” is aptly used to describe them. Essentially, constitution comprises of statutes and case law which are the legal sources, complemented by non-legal conventions and authoritative writings. In view of the fact that those Acts bringing reform into operation are passed by Parliament and statutes being a source of constitution, this is a good indication that separation of powers does represent a part of the framework of the British unwritten constitution. According to the doctrine, legislative functions include the making of rules for governance and order of society. Executive, on the other hand, involves in administration of state and conduct of foreign affairs, as well as the proposal of domestic policy. While in the branch of judiciary, there will be an independent judgment of criminal and civil cases, in addition to interpretation and application of statutes passed by Parliament and common law which develops on a case-by-case basis. In spite of this, United Kingdom indeed fails to comply with such pure doctrine where there is overlap of powers between the institutions. However, the implementation of several Acts has shed light on realignment of constitutional arrangements in an attempt to accord with stricter concept of separation of powers. Formerly, the overlap of powers between three organs of the state can be illustrated by the position and roles of Lord Chancellor. In the perspective of legislature, he sat in upper chamber as an impartial speaker of the House of Lords. Besides that, he exercised a restricted power to keep order within chamber and represented the House both domestically and internationally. However, with the coming into effect of Constitutional Reform Act (CRA) 2005, Lord Chancellor was no longer the Speaker. By agreeing to the Report of Select Committee on Speakership of House in 2006, speaker is elected instead of being drawn directly from the House of Lords so as to replace Lord Chancellor. In addition, a compromise has been reached that a future Lord Chancellor may not necessarily and exclusively be drawn from the House of Lords since Prime Minister ought to recommend appointment of Lord Chancellor when the person is qualified by experience as member of either House. From the aspect of executive, Lord Chancellor was once a minister of Crown and a senior member of Cabinet. He was also the head of Lord Chancellor’s Department which was replaced later by Department for Constitutional Affairs and subsequently by Ministry of Justice in recent times. Besides that, Lord Chancellor was the spokesman representing government in the House of Lords though acting as official speaker in that House at the same time. Nowadays, although Lord Chancellor remains to act as a minister and the head of government department, but CRA 2005 has actually diluted his responsibility as a Cabinet minister since he is required only to uphold judicial independence and prevent infringement by government’s legislative proposal. In respect of judiciary, Lord Chancellor’s discretion has been largely reduced by the provision in CRA 2005. For instance, there is transfer of certain statutory functions of Lord Chancellor to Lord Chief Justice. Being the President of the Courts of England and Wales, Lord Chief Justice is responsible for training, guidance and deployment of judges, besides representing the views of judiciary to Parliament and ministers. An additional title of Head of the Judiciary of England and Wales is also assumed. The CRA 2005 also seems to enhance the judicial independence which is the “traditional preoccupation of English separation of powers”. It has been a constitutional convention that executive members can never criticise judges. This is boosted further by s.3 CRA 2005 where duty is placed on Ministers of Crown and Lord Chancellor to uphold the continued independence of judiciary. For instance, Ministers of Crown must not seek to influence particular judicial decisions through any special access to judiciary over and above what might be exercised by member of general public, but what might be said on Ministers’ behalf in court is not restrained while presenting a case in the usual way. Moreover, Lord Chancellor is bound by statutory obligation to ensure an effective system so as to support the carrying on of the business of courts in England and Wales. For example, there is a requirement to concern with the need of judiciary to have proper support in exercising their functions and the necessity for public interest to be properly represented in deciding matters relating to the administration of justice. In the old system of judicial appointments, senior judiciary was consulted and Lord Chancellor deliberated the applications personally before making any recommendation to Prime Minister. However, it was referred to as ‘tap on the shoulder’ and subject to criticisms for being excessive reliant upon support of ‘old boys’ network’ which resulted in judges not necessarily selected on the basis of merit. Besides that, Lord Chancellor being an executive member gave rise to the doubt that appointments were politically motivated. Therefore, such system is brought to an end and an independent, non-departmental Judicial Appointments Commission instead is established as part of reform following CRA 2005. Lord Chancellor at this point of time merely accepts or rejects the candidate recommended with reasons provided. Lord Chancellor who is the office – holder is prohibited by CRA 2005 from holding a judicial post, indicating that he has been stripped of his previous ability to sit as a senior judge in Court of Appeal, the Privy Council or Appellate Committee of House of Lords. Lord Chancellor is no longer responsible for processing complaints against judges and administering judicial discipline. As an alternative, a Judicial Appointments and Conduct Ombudsman is created under s. 62 CRA 2005 to investigate complaints regarding judicial appointments process, as well as handling issues involving judicial conduct and discipline. From the very facts aforementioned, it is obvious that CRA 2005 in effect has radically curtailed powers of Lord Chancellor, moving the office away from judicial but into executive branch. However, it is critiqued as a drastic change which appears to have been made without having thought through the constitutional implications and practicality. It is plainly impossible to abolish the position and eradicate the roles of Lord Chancellor which has been in place for decades over night by simple diktat. Therefore, politicians and social commentators viewed such reform as “ditching of hundreds of years of history and practice for the sake of dressing up a Cabinet reshuffle as a matter of constitutional importance”. In addition, the position of Lord Chancellor is defended by Lord Woolf who believes that he serves as “a voice on behalf of the judiciary” and crucial in preserving the independence of judicial branch. Besides that, playing a pivotal role in coordinating the three arms of government enables Lord Chancellor to act as a “lightening conductor” and communication bridge between executive and judiciary so that the legitimate objectives are understood by one another, particularly in times of high tension. Apart from the reform brought to the office of Lord Chancellor, there is clearer separation of powers between legislature and judiciary. Prior to October 2009, Appellate Committee of the House of Lords served as the highest appellate court in United Kingdom, hearing both civil and criminal matters on point of law of general public importance. Since the Law Lords formed part of both the legislature and judiciary, this was in conflict with the pure doctrine proposed by Montesquieu. Thus, Supreme Court is established under Part 3 CRA 2005 and authorisation is given to Lord Chancellor under s. 148(4) CRA 2005 to bring it into operation. All Supreme Court Justices in future will not be entitled to receive life peerages who take part in House of Lord’s legislative business to some extent. As held in Davidson v Scottish Ministers, a ‘fair-minded and informed person’ could have divined a possibility that Law Lords would be biased instead of deciding cases on the sense of an “objective and undistorted judgment” when they did participate in debates on legislation Establishment of a new, free-standing Supreme Court is justified by the aims of protecting and further enhancing the independence of the highest court of the land. Besides that, Law Lords who were to sit both as members of the House of Lords and judges in the highest domestic court were likely to undermine public confidence due to the civic notion that decisions would be politically motivated. At that instant, it was simply unsustainable for Law Lords to clarify that they would not participate in matters relating to party political controversy so as to insulate themselves from involving in political arena. Simultaneously, there are arguments against the removal of Appellate Committee, hence giving rise to the question as to whether the establishment of Supreme Court is really in need. It is accepted widely that Law Lords are completely independent since the other two institutions could never attempt to influence judges while deciding cases heard before the courts. Otherwise, this is contrary to the maxim laid down by Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy that ‘justice should not only be done, but should manifestly and undoubtedly seen to be done. In addition, majority of the court in Pabla Ky v Finland held that independence and impartiality of court could be hardly doubted albeit a member of Parliament sat as an expert member of panel hearing appeal since the theory of the separation of powers was not sufficiently decisive. Over the years, administrative tribunals dealing with judicial review has been subject to different opinion. Essentially, as defined by Barnett, judicial review is a means to ensure that “government departments, local authorities, tribunals, state agencies and agencies exercising powers in governmental nature exercise their authority in a lawful manner”. This indicates that judiciary is meddling effectively with actions undertaken by executive. Judiciary is also brought face to face with executive in unfamiliar and sometimes sensitive areas such as the need to deport suspected terrorists immediately. On the contrary, judicial review can be deemed as a modified version of doctrine where courts review, check and balance executive’s conduct so that officials are acting lawfully and strictly with legal powers. Basically, members of administrative tribunals who acted as judges resolving dispute were mainly the executive since these bodies were effectively associated with administration department over which they were adjudicating, leading to the trepidation as to conflict of interests. Therefore, reform is brought through the implementation of Tribunals, Courts and Enforcement Act 2007. Independence of tribunals is further augmented by removing them from association or other sponsoring government department and transferring them instead to a new department. Therefore, the setting up of Tribunals Service indicates that tribunals no longer depend on relevant ministry for provision of administrative support, selection of members and payment of fees. Furthermore, a new, simplified statutory framework has been created under the 2007 Act with the aims of providing coherence and bringing tribunal judiciary together for future reform, instead of the rules being set by different executive associations. Historically, there was an overlap of powers where executive performed a judicial function. Home Secretary representing the executive was conferred the power under s. 35 Criminal Justice Act 1991 to determine the period of imprisonment (tariff) to be served by discretionary life prisoners with the raison d'être that Home Secretary had general responsibility to maintain public order and confidence in criminal justice system. A major change occurs following the case of V & T v UK where applicants’ right to a fair trial was held to have been violated since the setting of tariff was not performed by an independent and impartial individual but by the Home Secretary forming part of the executive. Therefore, s. 60 Criminal Justice and Courts Services Act 2000 is enacted so that the tariff is determined by trial judge in the court. There is a further reform following the case of R (Anderson) v Secretary of State for Home Department where it was reckoned that complete functional separation of judiciary from executive was fundamental. Thus, Criminal Justice Act 2003 is passed so that decision as to minimum term for those sentenced to life imprisonment is ultimately made by judiciary but not under Home Secretary’s judicial powers. Although several Acts of Parliament have been passed to address the issue regarding overlap of powers between institutions and bring reform representing a move towards clearer separation of powers, nonetheless several aspects of British constitution not in accord with the doctrine are not dealt with. For instance, Attorney General is drawn from the House of Lords. However, in the context of acting as the guardian of public interest, Attorney General should have acted non-governmentally and instructions are not to be taken from the executive. Undeniably, Attorney General is still the members of government though not part of the Cabinet. Therefore, it is remarkable that there is an overlap of powers involving members of executive to sit in the legislature and perform a quasi-judicial function. Besides that, in United Kingdom, there is parliamentary executive in which government ministers are drawn from Parliament. This provides the opportunities for government to be responsible and accountable directly to Parliament through parliamentary mechanisms, such as written or oral question, debates and select committees. However, this gives rise to apprehension that those Bills proposed by government can easily become Acts since government has a majority of seats in the House of Commons. This may further lead to the possibility that executive may pass undesirable laws so as to enable themselves executing in a tyrannical manner and there is no way of striking those laws down due to the doctrine of parliamentary sovereignty. Furthermore, ministers of the government are conferred the powers to make delegated legislation, illustrating an overlap of power between executive and legislature. Such ministerial power is substantially increased through the introduction of Legislative and Regulatory Reform Act 2006. In fact, it represents an attempt on the part of government to find ways of making it easier for provisions to be removed when they are deemed to impose an unnecessary regulatory burden. Once again, there is inevitably a drawback where much room has been provided because government having majority seats in the House of Commons can simply pass an Act which confers a large discretion to ministers. However, such overlap of powers between legislature and executive seems to be necessary to satisfy the need for flexibility in the modern society. It is famously defended by Bagehot since “the efficient secret of constitution may be described as the close union, the nearly complete fusion of the executive and legislative power”. Unsurprising, there is also an overlap of powers between legislature and judiciary. Although it has been insisted for times that Parliament makes the law while judges in courts merely apply it, on the word of Barnett, “every new meaning conferred on a word, every application of a rule to a new situation, whether by way of statutory interpretation or under common law, creates new law”. This is justified by the principle that once decisions have been made by courts after interpreting through adoption of several rules, they’re binding on lower courts and hence becoming the law which ought to be applied and there is no way out of it until and unless it is overruled by the higher courts. In conclusion, although separation of power is not absolutely established by United Kingdom due to existence of several overlap of powers, it is fairly noticeable that separation of powers does constitute a part of the British constitution. Those Acts bringing reform into effect, specifically Criminal Justice and Courts Services Act 2000, Criminal Justice Act 2003, Constitutional Reform Act 2005, as well as Tribunals, Courts and Enforcement Act 2007 are all passed by the sovereign Parliament and constitute parts of constitution. The only argument supporting Lord Lloyd’s will be the facts that Acts of Parliament are not entrenched since ideally, constitution and its laws should be of fundamental status. Therefore, the doctrine may be subject to alteration and can even be waived under demands. This is because without a higher status, the Acts can be amended or even repealed through the ordinary legislative process without any need for special majority or requirement for referendum from people. [2, 970 words] -------------------------------------------- [ 1 ]. Montesquieu, Charles de Secondat, baron de, The Spirit of Laws (c. 1748) translated and edited by Anne Cohler et al. (Cambridge University Press, New York 1989) [ 2 ]. Jennings I, The Law and The Constitution (University of London Press, London 1933) 36 [ 3 ]. Allison J.W.F, The English Historical Constitution: Continuity, Change and European Effects, (Cambridge University Press, Cambridge 2007) 98 [ 4 ]. Constitutional Reform Act 2005, s. 3 [ 5 ]. Constitutional Reform Act 2005, s. 62 [ 6 ]. Slapper G and others, The English Legal System: 2009-2010, (Routledge – Cavendish, Oxon 2009) 203 [ 7 ]. Lord Woolf, ‘The Rule of Law and a Change in the Constitution’, the Squire Centenary Lecture [ 8 ]. Constitutional Reform Act 2005, s. 148 (4) [ 9 ]. Davidson v Scottish Minister [2005] UKHL 74 (HL) [ 10 ]. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ) [ 11 ]. Pabla Ky v Finland [2006] 42 EHRR 34 (ECtHR) [ 12 ]. Barnett H, Constitutional and Administrative Law (7th Ed, Routledge – Cavendish, Oxon 2009) 685 [ 13 ]. Criminal Justice Act 1991, s. 35 [ 14 ]. V & T v UK [2000] 30 EHRR 121 (ECtHR) [ 15 ]. Criminal Justice and Courts Services Act 2000, s. 60 [ 16 ]. R (Anderson) v Secretary of State for Home Department [2002] UKHL 46 (HL) [ 17 ]. Bagehot, The English Constitution (1867, republished in 2008 by Forgotten Books) 67-68 [ 18 ]. Ibid. 9, pg. 89