Chapter 6: Separation of Powers Flashcards
1
Q
1.1 Theory of the separation of powers
A
It is widely acknowledged that the concentration of all types of state power into the same hands
can lead to iniquitous and/or inefficient government. In the famous words of the British historian, Lord Acton: ‘Power tends to corrupt; absolute power corrupts absolutely.’
2
Q
Constitutional Theorist Argument
A
Constitutional theorists argue that, for a constitution to be ‘efficient’ and ‘well arranged’, the three branches (or organs) of state – the judiciary, executive and legislature –should be
separated into different bodies or persons.
3
Q
Aristotle Theory
A
This theory has deep roots in ancient political theory. While not employing the same terms as modern thinkers, Aristotle stated in The Politics (384-322 BC): 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 […] The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.
4
Q
1.1.1 Montesquieu
A
This theory was given more modern expression by the 18th century, French philosopher, Montesquieu. He believed that liberty would be best protected in a state if there was a separation of powers into judicial, executive and legislative branches. He expressed it in this way in De L’Esprit des lois
5
Q
Legislative and Executive powers are united
A
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty […] again, there is no liberty if the power of judging is not separated from the legislative and the executive. If it were joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression
6
Q
No society, no separation, no constitution
A
There would be an end to everything, if the same man,
or the same body, whether of the nobles, or of the people, were to exercise those three powers,
that of enacting laws, that of executing public affairs and that of trying crimes or individual causes. Any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution.
7
Q
1.2 Separation of powers in practice
A
It should be stressed above all that the separation of powers is a theory or an ideal. Practice varies greatly between different states and different political cultures tend to have differing perspectives on the degree to which the theory can and should be implemented. The country most closely associated with the ideal is the United States where the constitution was directly inspired by the principles associated with Enlightenment thinkers such as Montesquieu, Rousseau and Locke
8
Q
Complete Separation of Power & Confidence in Legislature
A
The key difference is the complete separation in the US between Executive and Legislature. The US
constitution does not allow simultaneous membership of the government and of Congress,
thereby establishing a very notable form of ‘check and balance’ between the two political wings of the state. Like the US, the French constitution also provides for a directly elected President as head of state. However, most modern democratic nations have a form of government which depends on the support and confidence of the legislature, selected through general elections, as in the UK.
9
Q
1.3 Context of separation of powers in the UK: Attachment to the principle of parliamentary sovereignty
A
As we will see in this topic, the degree to which the UK conforms to any model of separation of
powers is a controversial question.
This is a product of the organic development of the UK’s constitution, which has never been the subject of planned design, and of the UK’s continued attachment to the principle of parliamentary sovereignty.
10
Q
Lack of clear-cut rules and delineations
A
The lack of clear-cut rules and delineations between the responsibilities of the three bodies of
state has meant that an accommodation has to be reached between them in order to establish a
balance that can be seen as constitutionally appropriate and healthy.
11
Q
Seen as a co-equal
A
However, unlike the position in the USA, where each body of state is seen as ‘co-equal’, the UK’s
attachment to parliamentary sovereignty means that there is not an equal balance of power in
the first place. As we have seen, UK courts do not have the power to invalidate or ‘quash’ primary legislation if this is deemed unconstitutional. Unlike the situation in the US and many other modern
democracies, the UK’s Supreme Court is not a constitutional court in this sense of being able to
review primary legislation for compliance with constitutional fundamentals.
12
Q
1.3.1 Consequences
A
The unique context of the UK’s constitutional development has meant that there are a number of
issues and discussion points that are engaged when one considers how the separation of powers manifests itself.
Institutional overlaps
* The lack of design to the UK constitution has meant that there have historically been
significant functional overlaps between all three bodies.
* How far does this ‘fusion’ still impact on the efficiency of and balance to the constitution?
The judicial role? Two main issues impact on the judiciary in particular:
* What power does the judiciary have to scrutinise and control the actions of the executive?
* To what extent, if at all, can the judiciary ‘make’ law?
13
Q
1.4 Summary
A
The separation of powers is an ideal which seeks to prevent power in a society being overly concentrated in the hands of a few.
* As an ideal it can be traced back to classical times, but it was mainly developed in the Enlightenment period.
* The degree of attachment to the ideal varies considerably between different states.
* The idiosyncratic development of the UK constitution has meant that there are no clear lines of
separation between the executive and the legislature.
* The UK’s attachment to parliamentary sovereignty has meant that the three bodies of state in the UK are not ‘co-equal’ as in the US.
* The proper role and degree of power of the judiciary in the UK remains controversial, therefore
14
Q
2 The Executive
Constitutional context
A
We have seen in relation to the theme of ‘responsible government’ how intra-parliamentary forms
of scrutiny can assist to a degree in holding the executive to account.
We now need to consider the broader institutional picture, in which the balance of power and
responsibilities between executive and legislature can be assessed.
In other materials we will also see the degree to which the courts are able to scrutinise the actions
of the executive and to hold government to account legally, which is where the constitutional
principles of the separation of powers and the rule of law intersect.
15
Q
2.2 What is the executive?
A
Executive functions are incapable of comprehensive definition, for they are merely the residue
of functions of government after legislative and judicial functions have been taken away. They may, however, be said to entail the formulation or application of general policy in relation to particular situations or cases, or the making or execution of individual
discretionary decisions.
16
Q
Executive Execution of Law & Policy
A
More specifically, they include the execution of law and policy, the maintenance of public order, the management of Crown property, the direction of foreign policy, the conduct of military operations, and the provision, regulation, financing or supervision of such services as
education, public health, transport and national insurance.
17
Q
2.3 A fusion of powers?
Overlap
A
In the UK there has traditionally been a considerable degree of overlap in terms of personnel and
functions between the different branches of the state. Academic writers including Walter Bagehot (The English Constitution 1867) have identified this as being a result of the UK constitution being a parliamentary, as opposed to a presidential, system.
18
Q
Parliamentary System
A
In a parliamentary system, the legislature selects and contains the political part of the executive
branch, which is then ultimately dependent on the legislature for its position and power. For this
reason, parliamentary systems are often seen to create a fusion of powers rather than a separation of powers.
19
Q
Dangers of Fusion
A
In the UK, many commentators have warned of the potential dangers of such fusion, particularly given the traditionally strong degree of control exercised by the political parties over their MPs, through the whipping system, and the general tendency since 1945 for governing parties to enjoy large parliamentary majorities in a ‘first past the post’ electoral system.
20
Q
2.4 Hung parliaments
A
The Conservative–Liberal Democrat coalition government of 2010–15 would be joined by up to
five years of a Tory minority government sustained in office by a ‘confidence and supply’
agreement with the Democratic Unionist Party (DUP) […] In between these supposedly
‘unusual’ peacetime conditions, there would be only a single year’s inter-regnum (2015–16)
when the Cameron government had a small but clear overall majority and operated on the
traditional pattern.
21
Q
Westminster system
A
There was also a further year of Tory majority government under May
[before the 2017 general election], but it was marked by a good deal of post-Brexit Leaver– Remain conflicts that made her parliamentary situation very weak. […]
All of this might make the ‘Westminster system’ of disproportional elections producing ‘strong’ majority of governments’ and the associated ‘British political tradition’ look more suspect than ever before. One should note, however, that the start of the new decade has seen another reversion to the more familiar pattern, as the Johnson government holds an 80 plus majority after the December
2019 election.
22
Q
2.5 Overlapping roles
A
Regardless of whether the government of the day has a functioning majority, it remains the case that political roles in government (ie at ministerial level) and in Parliament do overlap. The
relationship between the executive and the legislature can be described as a system of ‘checks and balances’ but whether the balance has fallen in the most favourable position is very much open to debate
23
Q
2.6 Legislative functions of the executive
Primary Legislative Functions
A
One of the most significant functional overlaps is the executive’s ability to create secondary
legislation, as long as it has the authority to do so from primary legislation (in the shape of a
‘parent’ Act of Parliament).
24
Q
Secondary Legislative Functions
A
Secondary – also called subordinate, or delegated – legislation takes the form of rules, orders and regulations, largely created as statutory instruments (SIs). There are approximately 3,500 SIs made annually, varying in length from a single page to several hundred pages.
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2.6.1 Acts of Parliament (primary legislation)
These contain provisions giving the executive (the relevant Secretary of State) power to make secondary legislation in specific areas. The wording you should look for to identify these powers is ‘the Secretary of State may/shall by regulations/orders make […]’.
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2.6.2 Statutory Instruments
These contain the Secretary of State’s further rules on the specific area identified in the ‘parent’
Act of Parliament.
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2.6.3 Henry VIII clauses
Some Acts contain clauses allowing the executive to amend or repeal provisions in an Act of Parliament using secondary legislation. These are controversial powers as they have the effect of enhancing executive power over the making of laws with very little parliamentary scrutiny
28
Particular significance in the context of Brexit
They are of particular significance in the context of Brexit. The EU Withdrawal Act 2018 provides
that laws and regulation made over more than 45 years, while the UK was a member of the EU,will continue to apply now that the UK has left the European Union. This ‘retained EU law‘ will require further amendment because many of the laws mention EU institutions in which the UK will no longer participate, or mention EU law itself, which will no longer be part of the UK legal system. They may also contain law that a future government wants to repeal for political reasons.
29
Giving ministers so-called ‘Henry VIII powers’
Therefore, the Act gives ministers so-called ‘Henry VIII powers’ to make changes to both primary
and secondary legislation using statutory instruments. These changes can get onto the statute
book quicker, as they are subject to less parliamentary scrutiny
30
2.7 Parliamentary control over subordinate legislation
The Level of No Scrutiny
There are three ‘levels of delegation’ which determine the level of scrutiny given to delegated
legislation.
Some delegated powers receive no parliamentary scrutiny. For example, an order to close a major
road while it is being developed.
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2.7.2 Negative instruments
These can become law without a debate or vote in Parliament. They can be opposed and, in theory, rejected but not amended by Parliament.
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2.7.3 Affirmative instruments
The most important delegations of power are subject to affirmative resolution. They cannot come
into effect until both houses have approved a draft SI in a vote.
33
The most important delegations of power are subject to affirmative resolution. They cannot come
into effect until both houses have approved a draft SI in a vote.
’Intra vires’ and ‘ultra vires’ are fundamental concepts in the study and practice of public law
(particularly judicial review).
‘Vires‘ means ‘power’. Therefore, if an action or legal provision is ‘intra vires‘ it means it is done
within the given power and is therefore lawful. If an action or provision is ‘ultra vires‘ it is done
‘outside’ the given power, and therefore unlawful
The concept is covered in detail in separate materials, but at this stage you should be aware that every delegated or subordinate power must be exercised ‘intra vires‘ the power granted. Usually (but not always) the power is granted by primary legislation
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2.8 The concept of ‘vires’: ‘intra’ and ‘ultra’
1. Parliament passes an act giving the Secretary of State Power to make regulations.
2. The SOS (Secretary of State) makes regulations which must be intravires the act
3. Ultimately the administrative court decides if the regulation is intravires.
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2.9 Parliamentary committees
Parliamentary committees have a crucial role to play in scrutinising statutory instruments, even if
they do not need to be put before the House.
These committees ensure that the delegated legislation is within the power or intra vires delegated
in the originating, ‘parent’ Act. (They do not review the merits of the government policy behind the
delegated legislation.)
* Delegated Powers and Regulatory Reform Committee (House of Lords): Examines delegated
powers in primary legislation to see what powers ministers are asking for (before the primary
legislation is debated in Parliament).
* Merits of Statutory Instruments Committee (House of Lords): Examines the secondary
legislation which results from the exercise of those powers.
* Joint Committee on Statutory Instruments: Ensures that each SI complies with the
requirements of the parent Act.
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2.10 Judicial functions of the executive
Historically, the UK constitution has not only seen incursions of the executive into the legislative
sphere, but also the judicial one. Certain aspects of the judicial role can, and have been, exercised by members of the executive, most notably in the past by the Home Secretary. This power derived from both statutory and prerogative sources.
37
During Her Majesty’s pleasure
For example, it was the practice for the Home Secretary to have responsibility for setting the tariff
sentence for those convicted to be imprisoned ‘during Her Majesty’s pleasure’ (ie indefinitely,
subject to review) under legislation going back to 1933.
38
Sentencing Powers on Young Offenders
This sentencing power was most often used in relation to young offenders. Following the murder
of James Bulger by two ten-year-old boys in 1993, it was held in R v Home Secretary, ex parte Venables and Thompson [1998] AC 407 that the Home Secretary had acted unlawfully in exercising these powers.
39
Judicial Power of Home Secretary
The judicial power of the Home Secretary to set sentencing in these situations was removed in 2000 and is now the responsibility of the trial judge in accordance with the principle of separation of powers.
40
2.11 Reduction in overlaps
Until relatively recently, the executive also had the power to decide some legal disputes through a
network of tribunals that were funded and administered by the same government departments
against whose decisions they heard appeals. Following the Tribunals, Courts and Enforcement Act 2007, tribunals are now administered as
part of the court system with a new supervisory body known as the Upper Tribunal. This represents a further ironing-out of some of the more clear-cut overlaps between the executive and judicial functions in the UK.
41
Constitutional Reform Act 2005
This is evident too in the various reforms introduced through the Constitutional Reform Act 2005.
These were at least partially inspired by the reforming effect of article 6 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Article 6
requires courts and tribunals to be impartial and independent from the executive.
42
McGonnell v UK (2000) 30 EHRR 289
The trial judge, known as the Bailiff, also played a role in the Guernsey legislative assembly and so was not deemed sufficiently independent, representing a breach of article 6.
43
2.11.1 The Lord Chancellor
The Lord Chancellor is the government minister with responsibility for the administration of justice including the administration of the court system.
Historically, this office carried a wide portfolio of responsibilities. However, under the Constitutional Reform Act 2005, the role was reorganised to remove overlaps with the office’s legislative and judicial functions.
44
Ceased to be head of judiciary
In relation to Parliament, the Lord Chancellor ceased to be the Speaker or President of the House
of Lords in May 2006. After April 2006 the Lord Chancellor also ceased to be the head of the Judiciary in England and Wales and the office’s powers of judicial appointment were transferred to the Judicial Appointments Commission.
45
Executive Cabinet post & redesignations to Lord Chancellor and Secretary of State for Justice.
The office of Lord Chancellor has been retained as an executive Cabinet post. However, both the
office and underlying department have been reorganised to reflect the new focus on administration. The department was initially renamed as the Department for Constitutional
Affairs. This was further reorganised in May 2007, to incorporate part of the old Home Office function, and was renamed the Ministry for Justice, with the position of Lord Chancellor being redesignated as Lord Chancellor and Secretary of State for Justice.
46
2.11.2 The Attorney General
The Attorney General sits in Cabinet as the chief legal adviser to the government. He or she also
has a role in deciding whether to bring a prosecution in individual cases. The nature of this office has given rise to concerns about the possible impact on the doctrine of
separation of powers, as a conflict of interest could arise between the inherent political allegiance of any holder of the office and the wider constitutional obligation to give independent, impartial legal advice to the government.
47
Example: Legal Advisory surrounding Blaire Government
A good example of this was the controversy surrounding the legal advice given to the Blair
government by the then Attorney General, Lord Goldsmith, in the lead-up to the war in Iraq in
2003, which is covered by s 5 of the Chilcot ‘Report of the Iraq Inquiry’.
The Attorney General continues to sit in Cabinet and to advise on legal matters, and the potential
for political influence on governmental legal advice remains
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2.12 Summary
* There is a continuing partial overlap in the personnel and functions of the Executive and Parliament.
* The Executive can make law in the form of secondary legislation, as long as Parliament has
given prior authority in a parent Act.
* These legislative powers of the Executive can also be extended through the use of ‘Henry VIII
clauses’ in legislation.
* Parliamentary scrutiny of delegated legislation is limited by time and resources.
* The Constitutional Reform Act 2005 removed some of the clearest overlaps in the executive
and judicial roles, notably in relation to the Home Secretary (in regard to sentencing) and,
more generally, the Lord Chancellor.
* The Attorney General’s role remains a source of concern in separation of powers terms as this
office has both a political, executive dimension and a legal one.
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3 Independence of the judiciary
A separate judiciary
Only in one aspect of the constitution can it be said that the doctrine [of the separation of
powers] is strictly adhered to, namely that by virtue of rules of strict law, constitutional
conventions, political practice, and professional tradition, the judiciary is substantially insulated from political influence
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3.2 An independent judiciary
Guarantee of continued judicial independence:
(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary. […]
(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular
judicial decisions through any special access to the judiciary.
(6) The Lord Chancellor must have regard to–
(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary to enable them to exercise their
functions; […]
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3.3 Constitutional Reform Act 2005
The fact that the highest appeal committee was, institutionally, part of the legislature was often
quoted as a clear example of a further overlap in the separation of powers model in the UK. The judicial function exercised by this part of Parliament ended in 2009, however, following the Constitutional Reform Act 2005, when the UK Supreme Court was established as a separate
institution from Parliament.
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3.3.1 Judicial appointments
The Constitutional Reform Act 2005, s 6 provided for the setting-up of an independent Judicial Appointments Commission, intended to improve the quality of the administration of justice and enhance public confidence in the judiciary. The work of the Commission ensures greater
conformity with the doctrine of separation of powers.
Independence of the Commission is ensured by 15 commissioners, comprising a mix of
professional, lay and judicial members. Under s 63 of the Constitutional Reform Act 2005, judicial appointments are solely to be based on merit and good character.
53
3.4 Judicial pay and tenure
Judicial security of tenure has been enjoyed since the Act of Settlement 1701, part of the post-Glorious Revolution constitutional settlement. This was seen to be vitally important in protecting judges from politically motivated dismissal by the monarchy/executive.
The principle has since been re-enacted in s 11 of the Senior Courts Act 1981 for judges in the Crown Court, High Court and Court of Appeal, and in s 33 of the Constitutional Reform Act 2005
for justices of the Supreme Court.
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Hold office during good behaviour
Both these Acts state that judges hold office ‘during good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament. The statutory retirement age for judges is 70. Judges are paid a salary by the Ministry of Justice, the amount of which is determined by an independent pay review body.
Judicial officers of other courts, including magistrates, coroners, and tribunal members enjoy less security, and their independence is protected by convention rather than by law.
55
3.5 Political independence of judges
* Full-time judges are disqualified from sitting in the House of Commons under the House of
Commons Disqualification Act 1975.
* Parliamentary rules provide that Members of the Cabinet and MPs should not criticise the character or motivation of judges, although this convention is not always respected.
* Courts also lack jurisdiction to inquire into proceedings in Parliament. This long established
and important principle of ‘parliamentary privilege’ is enshrined in Article 9 of the Bill of Rights
1689.
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3.6 Judicial immunity from civil actions
Judges are immune from legal proceedings for actions that would otherwise be tortious (for example defamation), as long as the action is done in a judicial capacity in a court of justice. For example, a judge would not be immune when commenting to the media.
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Immunity of magistrates
The extent of the immunity of magistrates is less than that of other judicial office holders, as magistrates may be liable for acts outside their jurisdiction (eg imposing a sentence that they do not have power to impose), if it is proved that they acted in bad faith.
58
Sirros v Moore [1975] QB 118
In Sirros v Moore [1975] QB 118 it was held that a circuit judge was entitled to immunity from liability in a civil action for damages, because the acts complained of were done by him acting in his capacity as a judge, in good faith, albeit mistakenly.
59
Per Lord Denning MR and Ormrod LJ:
As a matter of principle every judge of the courts in this land, from the highest to the lowest, should, when he is acting judicially in the bona fide exercise of his office, be protected
against personal actions for damages, even where he may be mistaken in fact or ignorant in
law.
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3.7 Open justice
Trials should be conducted in public, given the importance of justice being seen to be done. Cases should only be heard ‘in camera’ if a hearing in an open court would defeat the ends of justice or if it is necessary to protect the vulnerable. Article 6 of the European Convention on Human Rights (the right to a fair trial) also plays an important role in this regard.
61
Two-fold principles of Open Justice
1. The first is to enable public scrutiny of the way in which courts decide cases – to hold judges
to account for the decisions they make and to enable the public to have confidence that they are doing their job properly […].
2. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken
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3.8 Hearings in private
Under Civil Procedure Rule 39.2:
* If publicity would defeat the object of the hearing. This ground is commonly used in applications for a freezing injunction or a search order.
* If it involves matters relating to national security (evidence may also be withheld, under the ‘closed material procedure’).
* If it involves confidential information (including information relating to personal financial
matters) and publicity would damage that confidentiality.
* If a private hearing is necessary to protect the interests of any child.
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3.9 Summary
* The independence of the judiciary is regarded as the clearest manifestation of the principle of
the separation of powers in the UK constitution and is fundamental to the rule of law.
* The protection of security of tenure for judges has been established since the Act of Settlement
in 1701.
* Judicial independence is protected by independent recruitment, pay, and rules on political involvement.
* ’Open justice’, wherever possible, is seen to maintain public confidence in the judiciary and the accountability of judges.
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4 Law-making
4.1 Constitutional context
The traditional view of the separation of powers in the UK constitution was neatly summed up by Lord Diplock in Duport Steels v Sirs [1980] 1 WLR 142: [the constitution] is firmly based on the separation of powers; Parliament makes the laws, the judiciary interpret them.
65
Law derived from both statute and common law
As we have seen, law in the UK derives from both statute and the common law – in other words
the law developed by the courts over a period of time, based on established, core principles. The
reality, therefore, is that the judiciary itself has built up a body of legal principles, mainly in certain areas of private law, such as the law of negligence, but also in the public law field. Judges have therefore made law.
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Interpreting Legislation
In the modern world most law is now created by statute but the judiciary’s constitutional responsibility for interpreting legislation has meant that it has played a notable role in shaping and influencing how law is applied in this respect as well.
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4.2 Making laws
An inflexible theory of the separation of powers would suggest that law-making should solely be a matter for the legislature. However, that is not necessarily practical or realistic. Who proposes the laws for the legislature to consider? Are judges properly only ‘interpreters’ of the law, or should
they be able to develop it too?
Each of the three organs of the state in the UK has a role to play in making laws (see next card).
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4.2.1 The executive
Government proposes primary legislation to be considered by Parliament and drafts secondary
legislation.
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4.2.2 The legislature
Parliament can propose primary legislation of its own (via Private Members’ bills) and it decides
whether executive proposals become law.
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4.2.3 The judiciary
It interprets Parliament’s intentions in making legislation and develops the common law (legal principles not found in legislation).
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4.3 Judges ‘making’ law?
The proper role of the judiciary is a long-standing source of political and constitutional controversy in the UK. The courts are instrumental in the implementation of the law through the interpretation of statute - this is recognised as the constitutional responsibility of the judiciary.
However, there is a fine dividing line between developing the law and making it, and sometimes the courts are accused of excessive ‘judicial activism’. This will be explored by considering a number of leading cases.
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Key case: Shaw v Director of Public Prosecutions [1962] AC 220
Shaw wanted to publish a directory of prostitutes. He was advised by his lawyers that publication of the directory would not amount to a criminal offence. Nevertheless, a conviction of ‘conspiracy to corrupt public morals’ was ultimately upheld (even though there was no such statutory offence, and such a conviction was unprecedented).
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Residual Power
The House of Lords held that courts had ‘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.
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Custos Morum
In this case, the issue was whether the court could effectively ‘create’ a new offence in its capacity as ‘custos morum’ (keeper of morals) in the absence of specific legislation by Parliament, which had been legislating for over 100 years on issues of public morality and decency generally.
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Applying existing principles of law to the facts
The court’s justification, which has subsequently been questioned, was that there was a long line of case law establishing that conduct calculated to corrupt public morals (as opposed to the morals of a particular individual) was an indictable misdemeanour. The court therefore was not ‘creating new offences’ or making new law; it was applying existing principles of law to the facts.
The absence of a statutory basis for an alleged crime is irrelevant if there is an established principle of common law giving rise to it. Application of that principle is not ‘making new law’ but applying existing law.
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4.4 Deference?
The effective opposite of ‘activism’ is ‘deference’. This represents a more cautious attitude on the part of the courts who may choose to defer to Parliament by resisting any call to develop the law in a particular area.
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Key case: Malone v Metropolitan Police Commissioner [1979] Ch 344
Malone was charged with handling stolen property. The prosecution admitted that there had been prior interception of his telephone conversations. Malone sought declarations against the Metropolitan Police Commissioner (MPC) to the effect that the police conduct was unlawful.
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Court Investigation
The Court found for the MPC and held, in summary:
* There was no prohibition on the interception of telephone calls in English law.
* There was no right to privacy in English law. (The European Convention on Human Rights was
at that time not directly enforceable in English law.)
* ‘No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the
head of a judge deciding a particular case: only Parliament can create such a right.’ (per Sir Robert Megarry, VC)
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Gillick v West Norfolk Health Authority [1986] AC 112
Overview
* Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.
* A feature of common law is that it develops with the changing political and cultural climate.
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Gillick v West Norfolk Health Authority [1986] AC 112: Key facts
The court was asked to rule on the question of whether children under 16 could lawfully be given
contraception, without the knowledge of their parents. The House of Lords decided that in some
circumstances they could, if the minor was sufficiently mature to be able to consent to medical
treatment (referred to since as ‘Gillick competence‘).
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Gillick v West Norfolk Health Authority [1986] AC 112: Judgement
There was no prior authority on the point. It was suggested that this was due to that fact that in previous eras, it would have been self-evident
that parental authority was required, and the question would not have arisen.
Lord Denning’s view, in another case, that ‘the common law can, and should, keep pace with the times’, was cited with approval. Lord Scarman warned against judges ‘failing to keep the law abreast of the society in which they live and work’.
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4.6 Modernising the law
R v R [1992] 1 AC 599 [Marital Rape Exemption]
A similar approach to that taken in Gillick can also be seen in a further House of Lords case: R v R
[1992] 1 AC 599. This is sometimes cited as an example of ‘judicial activism’ because the law lords
overturned an apparent, long-standing common law principle that, by virtue of marriage, a woman consents to sexual intercourse with her husband. R’s case was that he could not accordingly be convicted of the offence of ‘marital rape’.
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R v R [1992] 1 AC 599 [Marital Rape Exemption] Judgement
The judgment contained a comprehensive review of the authorities on the marital exception to the crime of rape and considered whether a change of the apparent common law position was
appropriate, in the absence of legislation by Parliament.
The court considered that it was appropriate: It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the
rule if it can legitimately do so in the light of any relevant Parliamentary enactment. The court went on to conclude that the wording of the relevant enactment could be interpreted in such a way as to overturn the existing, archaic common law principle.
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4.6.1 Bland
The quandary faced by the courts in situations where the state of the law is not entirely clear or where legislation has not yet caught up with new societal or medical developments was well illustrated by the case of Airedale NHS Trust v Bland [1993] AC 789.
Permanent Vegetative State: It concerned the application by the family of a young man, Tony Bland, who had suffered serious injury in the 1989 Hillsborough football stadium disaster and had been left in a ‘permanent vegetative state’.
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Lawfully withdraw treatment
The family applied for a declaration that his medical team could lawfully withdraw treatment and so let him die, given his prognosis showed no hope of recovery. The declaration was granted by the court at first instance and confirmed by the Court of Appeal.
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Official Solicitor’s appeal to the House of Lords
Was eventually dismissed, as it was considered that the issues involved – namely the best interests of the patient and the established distinction between actions and omissions in the law on homicide – could legitimately be adjudicated upon by the courts.
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Wholly new moral and social issues,
Where a case raises wholly new moral and social issues, in my judgement it is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges’ moral stance when society as a whole is substantially divided on the relevant moral issues.
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Distinction between acts and omissions
In this instance the law lords appeared content that they were working from existing principles in
relation to the distinction between acts and omissions. They were ‘allowing nature to take its
course’ rather than condoning a positive act allowing life to be brought to an end.
But the issue was a narrow one and one can see a tendency here towards deference to Parliament on novel and contentious matters. The function of the court in these circumstances is to determine this particular case in accordance with the existing law, and not seek to develop new law laying down a new
regimen.
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4.7 Conclusion
It is difficult to give a definitive conclusion on whether the judiciary over-step an appropriate constitutional line when it comes to making or developing the law. This is controversial politically and within the legal community – for a perspective which views the modern courts as too interventionist
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Importance of English Courts
English courts clearly have an important role to play in developing the law, given the common law
tradition, but it is fair to say that the courts are conscious of their place in the constitutional hierarchy and so wary of encroaching on parliamentary territory.
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Insufficient existing common law threads
The impression one can take from some of the above cases is that the courts will not feel it right to
develop law when there are insufficient existing common law threads to build principles from.
They will also be wary of doing so when the matters before them are novel and contentious, especially if they involve matters that are seen as political or ethical in nature
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Elected Sovereign Body
In such situations the courts will generally defer to Parliament, as the elected sovereign body, and therefore the appropriate forum for the debate and resolution of such matters. Opinions very much differ about whether the courts strike the right balance but, even if they do
not always do so, the political wings of the constitution have a fall-back position.
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4.8 Parliamentary response
It is important to bear in mind that Parliament (and of course, the government within Parliament)
has a form of constitutional safety mechanism potentially to hand if it considers that the courts have exceeded their authority in making law.
Statutory law has a higher status than common law and so a legal principle established by the courts can be over-ridden by Parliament passing legislation. Parliament, in the words of Professor A.V. Dicey, can ‘make or unmake any law whatever’.
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Burmah Oil Company (Burma
Trading) Ltd. v Lord Advocate [1965] AC 75.
The classical example of this legislative override came in the case of Burmah Oil Company (Burma
Trading) Ltd. v Lord Advocate [1965] AC 75. Oil fields in Burma had been destroyed by British forces during the Second World War.
The law lords decided that compensation should be paid to Burmah Oil, on the basis that the destruction was equivalent to an act of requisitioning in wartime, for which compensation should be payable. Following this judgment, however, Parliament passed the War Damage Act 1965, which exempted the Crown from paying compensation for property damage or destruction in war.
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4.9 Summary
* The traditional view of the role of the courts in the UK constitution is that do not make the law but instead merely interpret it.
* The position in reality is not as simple as that, as the courts are operating in a common law
system.
* There is a fine dividing line between interpretation of existing law and development of new legal
principles.
* The pattern of case law reveals that the courts are conscious of their place and of the appropriateness of deferring to Parliament in particular situations.
* These include where the legal issue is novel, without any clear common law themes or principles that can be built upon, and where the matter has a politically or ethically
contentious aspect.
* The political parts of the constitution are able to exercise a constitutional override by passing
legislation which will reverse the effect of common law decisions.
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5 Judicial scrutiny of the executive
5.1 Constitutional context
We have seen how the absence of clear delineation in the responsibilities of the three bodies of
state in the UK has caused tension between them. This has been most acute in the modern period
in terms of the relationship between the judiciary and executive. As we will see in separate materials, the constitutional principle of the rule of law, of which the judiciary are the acknowledged guardians, has arguably become more pronounced in recent times
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Judiciary is not elected & dynamics are complicated by position of the executive
Yet, the judiciary is not elected and does not share an equal place in the constitutional hierarchy
to Parliament, and so it is incumbent on judges to defer where appropriate. The dynamics at work are complicated by the position of the executive which, although not
sovereign, is drawn from the sovereign Parliament and, in political terms, is more powerful in most
situations (other than when the government does not have a majority). The degree to which the judiciary can control what the various arms of government do in practice is therefore finely balanced.
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5.2 Judicial oversight or legislation?
Reviewing Primary Legislation
Firstly, it is important to reiterate that judges in the UK have no power to scrutinise proceedings in
Parliament, nor, most importantly, to ‘review’ primary legislation (Acts of Parliament). As will be seen in other materials, there is a partial exception: if an Act of Parliament is
incompatible with the European Convention on Human Rights, the Court may make a declaration
to that effect pursuant to s 4 of the Human Rights Act 1998 – but note that the courts cannot invalidate it
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Secondary Legislation
In contrast, secondary legislation (ie legislation made in the exercise of powers conferred by or under an Act of Parliament) can normally be challenged – and potentially invalidated or ‘quashed’ – in the courts.
The legal mechanism for doing so is judicial review (which is carried out
by the Administrative Court, a specialist court within the King’s Bench Division of the High Court
of Justice).
The context in which judicial review normally arises (and which we will largely concentrate on in
other materials) is when the actions and decisions of executive bodies are challenged by interested parties.
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5.3 Judicial review
Over the last half century, the judiciary has played an increasing role in exercising a check on the
executive through the use of judicial review. The purpose of judicial review is twofold:
* To prevent abuse of power by the executive
* To uphold individual rights or interests
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Quashing Decisions
If the executive, or any public body exercising a public function, reaches a decision which is wrong in law, the decision may be ‘quashed‘ - ie rendered a nullity - by the Administrative Court. The detail of judicial review procedure, and the various remedies, in addition to quashing orders, are the subject of separate materials.
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Examining legality of decision, to respect the doctrine of seperation of powers
The fundamental point to understand at this stage is that judicial review examines the legality of a decision (ie whether it was made within the powers granted to the decision-making body, following the correct procedure and on a correct interpretation of the law), and not its merits. The merits of a decision are a matter for the executive (or other public body). This approach is
intended to respect the doctrine of the separation of powers.
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5.4 The role and status of the courts
One of the most clear-cut areas of the case law relating to the relationship between the judiciary
and executive has come about in situations where the executive appears to have ignored or overridden court orders or decisions. This is viewed by the judiciary, particularly in less deferential
modern times, as a form of disrespect for their constitutional role.
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Key case: M v Home Office [1994] 1 A.C. 377
In this case, a judicial order was made in the High Court stopping the removal of M from the UK.
He was an asylum seeker from Zaire whose application was initially rejected but who had produced new evidence which had not yet been assessed. The Home Secretary ignored the order and M was deported.
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Interim injunction (Injuction can be made against the Crown)
The case is notable for the subsequent Court of Appeal finding that an order such at this (in the
form of an interim injunction) could legitimately be made against the Crown and that the Home
Secretary had been in contempt of court for ignoring it.
This reversed the previous position that an injunction could not be made against the Crown. It also symbolised the important rule of law principle that the Crown, in the form of a government minister, is just as much subject to the law as ordinary citizens are. A legal order could not be disregarded; only a higher court could overturn it.
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Key case: R (Evans) v Attorney General [2015] UKSC 21
This case began with a request by a journalist, Rob Evans, under the Freedom of Information Act
2000 (FOIA) for copies of Prince Charles’ correspondence lobbying various government agencies.
(These were known as the ‘black spider memos’ on account of his handwriting.)
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Role of the Upper Tribunal
The government departments refused to disclose the letters on the ground that they considered
them exempt from disclosure under the FOIA. However, a court of law, the Upper Tribunal, determined after extensive deliberation that many of the letters, referred to as ‘advocacy
correspondence’, should be disclosed.
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Attorney General issued a certificate, under s 53(2) of the FOIA
The Attorney General subsequently issued a certificate, under s 53(2) of the FOIA, effectively overriding the Upper Tribunal’s judicial decision. Evans sought judicial review of the Attorney General’s decision to issue the s 53 certificate. The case reached the Supreme Court, which found
against the Attorney General.
The Supreme Court considered that the Attorney General’s conduct had ‘contradicted the fundamental principle that a court’s decision could not be ignored or set aside by anyone, including the executive, and that the executive’s actions were reviewable by the court’.
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5.5 Judges ‘upholding the will of parliament’
In some situations, the rationale for the court holding the executive legally to account is that it is
protecting and upholding the sovereignty of Parliament in the face of executive encroachment.
This was the setting for the judgment of the Court of Appeal in R v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513.
The Home Secretary announced his intention not to bring into force a statutory compensation scheme for criminal injuries, which had been approved by Parliament, but instead to introduce a new ‘radically different’ tariff scheme, using his prerogative power. (This is a form of pure executive power, not legitimated by Parliament.)
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Home Secretary acting unlawfully
By announcing that the agreed statutory provisions would not be implemented, the Home
Secretary had acted unlawfully. His decision to introduce a new scheme, which was inconsistent with the statutory scheme, when the statutory provisions remained unrepealed, represented an
abuse of his prerogative power and a bypassing of the clear will of Parliament.
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5.6 Miller litigation
Tension between executive and judiciary has been heightened in recent years by two very highprofile defeats for the government in relation to cases associated with – but not about – the process of ‘Brexit’, both initiated by Gina Miller (alongside other challengers)
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R (Miller) v Secretary of State for Exiting the European Union [2017]
UKSC 5
The case involving Article 50 – R (Miller) v Secretary of State for Exiting the European Union [2017]
UKSC 5 – will be considered in other materials on prerogative power. More recently, in R (Miller) v Prime Minister/Cherry v Advocate General [2019] UKSC 41 the Supreme Court found unanimously that the advice given by the Prime Minister to the late Queen in late August 2019 to prorogue Parliament was unlawful.
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Case was justiciable
It was found firstly that the case was justiciable, as it related to the courts’ historic ability to hold the executive to account for its actions. The effect of the PM’s advice to prorogue would have meant that, for a highly significant period of around five weeks in the lead-up to the planned exit from the EU at the end of October 2019, Parliament would have been unable to meet either in
session or in any committees. This was a far longer period of prorogation than normal and ‘no
justification for taking action with such an extreme effect’ had been put before the court.
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5.6.1 Significance of Miller 2
In her summary of the case, Lady Hale, as UKSC President stated that the prorogation would have
had: the effect of frustrating or preventing, without reasonable justification, the ability of
Parliament to carry out its constitutional functions as a legislature and as the body
responsible for the supervision of the executive.
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Constitutional safeguard
It is notable here how the UKSC saw its role as providing a constitutional safeguard to protect Parliament, the sovereign body, against an executive over-reaching its authority (and its use of prerogative power). In ex p FBU the Home Secretary had been seen as bypassing the will of Parliament.
In Miller 2, disregard of constitutional norms by the executive was, in the courts’ eyes more acute still, as the
effect of its proposals was to prevent Parliament from carrying out its proper ‘constitutional functions’ at such a significant moment.
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5.7 Scrutiny of executive decisions
We have seen therefore that one of the key functions of the judiciary is to ensure that executive decisions are lawfully arrived at. Where tension arises in particular is when the courts have to decide on challenges involving matters that are at the more political or ‘high policy’ end of the spectrum – in other words the area of competence of the executive rather than the judiciary.
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Reasonableness or rationality
This area will be explored further in other materials in relation to judicial review. In the constitutional sense, however, it is important to distinguish between cases where the courts have to address challenges on the basic legality of governmental actions and those where the
challenges are based on the reasonableness or rationality of what government does.
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Variable intensity of review
In the former instance, it is constitutionally orthodox for the courts to be able to intervene – they
are effectively deciding if the executive had the authority to do what it did. In the latter type of
cases, the balance is much more finely set, and the courts will apply a more deferential approach
accordingly. This relates to the idea of variable intensity of review, that will be encountered in more detail in materials relating to judicial review.
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5.7.1 Judicial intervention?
The constitutional status of the judiciary should not, however, excuse the courts from any
scrutiny of policy decisions. Courts are able, and indeed obliged, to require that decisions, even in the realm of “high policy” are within the scope of the relevant legal power or duty and arrived at by the legal standards of procedural fairness.
The courts display reserve in impinging upon the substance of policy decisions, but even here
they may legitimately intervene if the decision is devoid of reason and not properly justified.
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Culture of Justification & Culture of Authority
Judges always possess the capacity to probe the evidence and assess whether the reasons and motives for decisions are rationally related to their aims. As will be shown […] public law has rapidly advanced recently from a “culture of authority” to a “culture of justification”
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5.7.2 An illustration – ‘GCHQ’
Since 1947, staff employed at the GCHQ communications centre had been permitted to join trade
unions. In December 1983 the Prime Minister, with no prior consultation, altered the conditions of service, forbidding membership.
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Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374
The applicants sought judicial review on the ground of unfairness due to failure to consult. As will be seen in other materials, the law lords established, very significantly, that the courts have the power to review
how the executive uses its prerogative powers.
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Issues of National Security
Notably, however, they concluded that in this case requirements of national security outweighed
those of fairness, recognising that this was a matter for the executive to weigh up and decide upon. This illustrates how the courts exercise self-restraint by not interfering in matters of government policy relating to national security. The separation of powers balance also confers responsibility for matters of social and economic policy primarily upon the legislature and the executive, rather than the judiciary.
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5.8 Summary
There is no clear delineation between the role of the judiciary and executive in the UK.
* The courts can review secondary legislation and have limited powers under the HRA to
determine the compatibility of all legislation, but they cannot invalidate primary legislation.
* The courts exercise scrutiny over the legality of governmental actions through judicial review.
* The executive has to act within its powers and also to respect the jurisdiction of the courts and
the authority of court orders.
* The judiciary acts as a constitutional guardian of the role and function of Parliament in the
face of executive overreach.
* In matters involving the rationality of governmental decisions the courts will defer in areas
involving national security, and social and economic policy.
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