The Separation of Powers
What is the principle of the separation of powers? It is the principle that the executive, legislative, and
judicial functions ought not to be exercised by the same individual(s).
The relationship between legislature and executive
In the UK, the legislature is Parliament, while the executive is the government. This creates significant
overlap of personnel, since the government is drawn entirely from parliament (since we are a
parliamentary democracy).
This is somewhat problematic since Parliament is supposed to hold the govt to account, and yet
they are members of it.
Bagehot: the efficient secret of the English Constitution.
o It promotes accountability, since the govt is drawn from the body which holds it to
account
Lord Hailsham: the elective dictatorship of Parliament
o The govt is in its position since it has a parliamentary majority, and so it can get
parliament to do what it wants.
o A (small) check on this is the HoC Act 1975 which restricts the govt to having 95
members sitting in the Commons (will mean vast majority of members are not also in
govt).
There is also rather an overlap in responsibilities/functions. One example is secondary legislation – lots of
primary legislation gives ministers the duty of filling in the gaps and fleshing out the legislation in the
form of secondary legislation. Problem 1, the ministers are passing the acts giving themselves powers,
and problem 2, there is very little scrutiny of secondary legislation (not debated in the Commons for
example).
One way in which parliament has some oversight of secondary legislation is affirmative/negative
resolution procedures. The affirmative resolution procedure says that parliament has to approve
the regulations within 40 days (which is really just a formality, no debate). The negative
resolution procedure says that the regulations take effect within 40 days unless the opposition
tables a motion on the subject.
Henry VIII clauses give ministers the power to repeal or amend primary legislation without scrutiny. E.g.
when a court declares a piece of legislation incompatible with the HRA 1998, a govt minister can fast-
track the changes to the offending piece of legislation. A more sinister example is the Civil Contingencies
Act 2004, which gives ministers to do very wide-ranging things (e.g. destroy property without
compensation).
The PM also has a certain number of prerogative powers, for example to declare war, or sign treaties.
Relationship between legislature and judiciary
The principle of the separation of powers was the motivation behind the CRA 2005. Prior to this, the
most senior judges sat in the House of Lords (though by convention they avoided politically sensitive
debates). The Lord Chancellor was a member of all three branches of the state; he ran the Lord
Chancellor’s department (so was a cabinet minister), he was the speaker in the Lords, and he was the
head of the judiciary.
,Post CRA 2005, the HoL Appellate committee became the Supreme Court, the Lord Chancellor became
the minister for justice, and was not required to be a lawyer, and the judges no longer sit in the Lords
while they are serving on the court.
Scrutiny of the legislature by the judiciary
Under the principle of parliamentary supremacy, the courts cannot strike down primary
legislation (though they can declare it incompatible).
o Lord Diplock in Duport Steels Ltd v Sirs (1980): it cannot be too strongly emphasised that
the British Constitution, although largely unwritten, is firmly based on the separation of
powers; Parliament makes the laws, the judiciary interprets them.
o Where the courts have interpreted a law in a way that the legislature is unhappy with, it
can just legislate more specifically, as Parliament did after the Burmah Oil judgement.
Jackson v AG (2005)
o Related the Hunting Act, challenged it based on the procedure by which it was passed.
The Lords had opposed it, and the govt had used the Parliament Act 1949 to pass it. The
argument was whether the Parliament Act 1949 was itself invalid, on the grounds that it
was a major constitutional change, and had been passed using the Parliament Act 1911,
rather than the standard procedure.
o The Hunting Act was held to be valid – the Parliament Acts could be used to pass any
legislation except extending a parliament.
o Lord Hope obiter dicta: it was possible that parliamentary supremacy was no longer the
main principle in the UK constitution, and should Parliament pass legislation that
violated this principle, it was possible that the courts might not feel obliged to give effect
to that legislation.
o Shows that parliamentary supremacy may well be limited – parliament may just not be
able to pass legislation which runs against the principles of the rule of law. But this is not
at all clear – our present Supreme Court is relatively conservative and would probably
disagree.
Parliamentary Privilege
First element is freedom of speech in Parliament. MPs are legally immune for anything they say
or do during parliamentary proceedings.
Second element is exclusive cognisance. Parliament is responsible for policing itself.
Freedom of Speech:
Regarded as crucial so that MPs can hold the govt to account, and speak freely without risk of
repercussions.
This means it is possible for parliamentarians to breach court orders.
o Injunctions prevent certain pieces of information from being reported.
o Super-injunctions prevent the reporting even of the fact that an injunction has been
granted.
o John Hemming MP used parliamentary privilege to announce to the Commons that it
was Ryan Giggs who had taken out this injunction in 2011.
Another example is Philip Green’s super-injunction relating to allegations of bullying and sexual
harassment.
, o Peter Hain stood up in the HoL and named Green.
o David Gauke LC said he had serious concerns about the use of privilege to undermine the
rulings of our independent judiciary.
Relationship between the judiciary and the executive
Clearly if the judiciary is to hold the executive to account, it is imperative that they remain independent.
There are 3 main ways in which this independence is retained. These are the means of appointment, the
means of dismissal, and their terms of service.
Means of appointment
Senior Judges are now appointed by the Judicial Appointments Committee (CRA 2005). Formally
it is the PM who does it based off the recommendation of the LC, but he just takes what the
select Commission of the JAC says, with a very limited power of veto (can just ask them to
reconsider, but they don’t have to).
Security of tenure
A majority of both the Commons and Lords must vote to dismiss a senior judge, which has only
happened once, for criminal misconduct back in the 19 th century.
Terms of service
Their salary and terms are set by an independent body – Senior Salaries Review Body.
The Lord Chancellor has statutory duties to uphold the independence of the judiciary.
Grounds of judicial review (for secondary legislation/decisions of public officials)
Common law grounds – illegality, unreasonableness, natural justice (unfairness)
s6 of the HRA 1998.
R (Miller No.1) v The Prime Minister (2017)
Miller No.1 was the first Miller case, brought after May tried to trigger Article 50 using
prerogative power. The courts decided that she did not have this power, rather she required an
Act of Parliament, since triggering Article 50 would take away citizens’ rights which could not be
done without an Act of Parliament.
Liz Truss refused to condemn the Daily Mail headline ‘Enemies of the People’, failing to discharge
her statutory duty to defend the independence of the judiciary.
o She then, when sent off to the Treasury, ignored the SSRB’s recommendation to
compensate judges for changes in pension structure.
R (Anderson) v Home Secretary (2002)
The court recommended minimum tariff for A was increased by the Home Secretary unilaterally
(as was his statutory right).
UKHL: sentencing is a judicial function, and the minister’s power to increase the tariff was
incompatible with article 6 ECHR, the right to a fair trial.
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