Solicitors Qualifying Examination

The Separation of Powers | Public Law – SQE1 & SQE2 Exam

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The Separation of Powers
Lord Acton: ‘Power tends to corrupt; absolute power corrupts absolutely.’
Three bodies to be separated:
1. Judiciary – s 6 HRA = independent and impartial + paid by independent
fund – enforce law (interpret, but not create law to too significant a
degree)
2. Legislature – create law
3. Executive – implement law
Montesquieu: ‘When the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no liberty’ – De L’Esprit
des Lois
Lord Irvine: ‘In the United Kingdom, the approach which is taken to the
separation of powers […] is essentially pragmatic’
© Liam Porritt 2020 2
US and German Constitutions
• US: strict separation of powers in which no office holder can legally wield
power belonging to another branch of the state
• Germany: similarly rigid separation of powers
UK Constitution
• Overlap between personnel and functions due to parliamentary (not
presidential) system ~ Bagehot, The English Constitution, 1867.
• Legislature selects the political part of the executive branch, which is then
dependent on the legislature for position and power
• Parliamentary systems = fusion rather than separation
• Strong degree of control exercised by political parties (i.e. the executive)
over their MPs (i.e. legislators) ~ through whipping system
• + Tendency for large majorities in parliament in ‘first past the post’
system
• = Executive political power for PM – Lord Hailsham: ‘elective dictatorship’
Example of power of Lord Chancellor before 2005 Constitutional Reform Act
• Member of Cabinet (Secretary of State for Justice) = executive – remains
role today
• Presiding officer of the House of Lords (head of the highest court in UK) –
now Lord Speaker; and President of Supreme Court following separation
of judiciary from legislative body
• Head of judiciary in England and Wales – now Lord Chief Justice (who is
also head of Court of Appeal, Crim Div)
• Powers of judicial appointment given to Judicial Appointments
Commission
• Judge of Chancery Division of High Court – now Chancellor of the High
Court
© Liam Porritt 2020 3
Blurred Lines between 3 bodies: Legislative and law-making role
• Parliament = legislature making statute
o Parliament has the ability to override common-law making by
passing legislation to nullify it
§ Burmah Oil Co Ltd v Lord Advocate: compensation claim vs
Crown for damage done by British forces during wartime
§ The War Damage Act 1965 passed with retrospective effect
to deny entitlement to compensation
• Executive
o Secondary legislation (nominally requiring approval by resolution
of both Houses, but in reality passing unchallenged – 0.01%
rejected by either house)
§ Usually statutory instruments – limited opportunity for
parliamentary scrutiny
• E.g. The Childcare Act 2016 – skeletal act, enabling
Secretary of State to legislate by regulation in
accordance with a vague mission statement
§ ‘Henry VIII clauses’ = Constitutional Reform and
Governance Act 2010 – Ministers can create secondary
legislation that can:
• Amend, repeal or revoke provisions in primary
legislation without parliamentary scrutiny (which,
Lord Judge makes clear, was not in fact possible at
the time of Henry VIII)
• Include supplementary or incidental provision
§ EU withdrawal will likely require significant degree of
delegated legislation when the government decides to take
steps to divest the country of elements of EU law deemed
unnecessary or undesirable
§ Concerns surround this:
• HoL Constitutional Select Committee: ‘Delegated
Legislation and Parliament: A response to the
Strathclyde Review’ report
• Lord Judge: Ceding Power to the Executive; the
Resurrection of Henry VIII
o ‘Parliamentary sovereignty is the antithesis of
executive sovereignty’
o ‘Parliament is there to protect us from
authoritarianism […], from an over mighty
executive’
o Establish policy through prerogative powers
o Limited judicial function
§ HoL as highest court – ended in 2009 following
Constitutional Reform Act 2005
© Liam Porritt 2020 4
§ For Home Secretary – reduced (e.g. by Criminal Justice Act
2003) following high profile human rights cases – R
(Anderson) v Secretary of State for the Home Department
§ Tribunals attached to government departments (trying
cases relevant to the department) – however, bias in this
arrangement (Gillies v Secretary of State for Work and
Pensions) = now part of Court system (Upper Tribunal =
supervisory body)
• Judiciary = development of common law ~ law-making + interpretation of
statute
o Parliamentary sovereignty: judiciary cannot question the nature or
validity of statute (British Railways Board v Pickin)
o Judicial activism = crossing line between
implementing/developing law and creating it (s3 and s4 of HRA
1998)
§ Shaw v DPP: manual of prostitutes – not a criminal offence
under statute, but courts convicted of: ‘a conspiracy to
corrupt public morals’.
• HoL: ‘residual power to enforce the supreme and
fundamental purpose of the law, to conserve not
only the safety and order but also the moral welfare
of the state’ – goes against parliamentary
sovereignty perhaps
§ Gillick v West Norfolk Health Authority
• Contraception to under 16s without consent of
parents by medical professionals
• Relies on notion set out by Lord Denning that: ‘the
common law can, and should, keep pace with the
times’ – responsibility of judges to take changing
attitudes into account
• Interpret law in current context and
environment
§ Airedale NHS Trust v Bland
• Individual in a permanent vegetative state –
question: can he be disconnected from food, as it is
of no benefit to him?
• Here, court say that all such cases where doctors
consider it best to disconnect the patient must refer
decision to Family courts.
• Here, there is a lack of primary legislation, and so the
court feel obliged to ‘create’ law in this area, but
refer it to Parliament for their urgent attention.
§ http://judicialpowerproject.org.uk/50-problematic-cases/
§ Against the POV that judicial activism is a bad thing:
https://publiclawforeveryone.com/2016/05/09/anisminic
-axa-evans-and-nicklinson-judicial-powers-50-problematiccases-and-the-contestability-of-the-proper-judicial-review
© Liam Porritt 2020 5
o Judicial deference: Malone v Metropolitan Police Commissioner
§ Phone tapping against Malone in criminal investigation
§ Court refused to find right to privacy to hold phone call
without molestation in English law – phone tapping for
parliament, and not the courts, to intervene on
§ Sir Megarry: ‘if the principles of English law, and not least
analogies from the existing rules, together with the
requirements of justice and common sense, pointed firmly
to such a right existing, then I think the court should not be
deterred from recognising the right’
§ ‘The extension of the existing laws and principles is one
thing, the creation of an altogether new right is another
[…] only Parliament can create such a right’
o R (Nicklinson) v Ministry of Justice
§ Court can find that Suicide Act 1961 s 2 infringes ECHR
1950 art. 8; however, the court should not grant a
declaration at that time, and should instead give parliament
the opportunity to consider amending s 2.
§ Court can ask that the Director of Public Prosecution clarify
her policy, but it cannot dictate what that policy should be
Statutes and Conventions ensuring a degree of separation of power
Statutes
• House of Commons Disqualification Act 1975 – prevents judges and
senior civil servants becoming MPs
• Judiciary’s role is to interpret law, not to legislate HRA 1998 s3
• Division between judiciary and legislation – HRA 1998~ if court considers
legislation to be incompatible with European Convention of Human
Rights, court can make ‘declaration of incompatibility’ (s4 HRA 1998).
Then, it is for Minister (not judiciary) to amend statute.
Conventions
• Judges not politically active
• Judge’s professional conduct not criticized in Parliament
© Liam Porritt 2020 6
Judicial Independence
• Executive held to account legally
• Constitutional Reform Act 2005, s.3 – executive must uphold judicial
independence + Ministers barred from influencing judicial decisions
• Tenure
o Senior Courts Act 1981, s 11 + Constitutional Reform Act 2005, s
33 ~ judges hold office ‘during good behaviour’, only dismissed by
monarch after address by both Houses
• Immunity
o Not sued for actions in court, even if make mistakes, provided they
act within jurisdiction (Sirros v Moore)
• Open courts
o In general, cases conducted in public
• Political independence
o Full-time judges conventionally apolitical
o Cannot inquire into proceedings in Parliament (Art 9 Bill of Rights
1689 + British Railway Board v Pickin)
• Judicial appointments
o Constitutional Reform Act 2005: power taken from LC ~ now:
independent Judicial Appointments Commission
• Head of Judiciary
o CRA 2005 ~ not LC, now: LCJ
The Judiciary and Judicial Review
• Growth of JR = reflection of importance of separation of powers
o Council of Civil Service Unions v Minister for the Civil Service
• R v Secretary of State for Home Department, ex p Fire Brigades Union –
Home Secretary using prerogative power to introduce criminal injuries
compensation scheme at variance with as yet unimplemented statutory
provision = inconsistent with will of Parliament
• M v Home Office – Home Secretary ignored court order (refusing the
deportation of man) because he thought it was wrongly made = court
made clear this was contrary to separation of powers and that the
executive must respect and adhere to decisions of the courts
o Ditto opinion of Denning in: IRC and Another v Rossminster Ltd and
Others
• R (Evans) v Attorney General – Lord Neuberger: court or judicial tribunal
finds that information should be released; for a member of the executive
(AG) to overrule this via statute because he does not agree with it ‘would
cut across two constitutional principles which are also fundamental
components of the rule of law’ – parties bound by decisions of courts
(above all the executive) + actions of executive must be reviewable by
court
© Liam Porritt 2020 7
Constitutional Reform Act 2005
• Separation of judiciary from legislature – Supreme Court, October 2009
• Lord Chancellor – see above
• Attorney General – conflict: political allegiance to executive (as member
of Cabinet) + supposedly impartial legal advice given to government
o Blair + Goldsmith – Chilcot ‘Report of the Iraq Inquiry’
Fixed Term Parliament Act 2011
• Maximum 95 MPs can be ministers to ensure that not too much of the
legislature is also within the executive – CMR = ministers must support, so
if very many of them, many MPs will have to vote in favour of bill
Section 3 & 4 HRA
• S3 – judiciary to interpret
• S4 – refer law to the parliament for review – not only legal implications,
but also social and political issues
o Ballenger v Providence Hospital

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