Separation Of Powers

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Theory or ideal

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3 branches of state - Judiciary, Executive, Legislature. Goes as far back as Aristotle. Idea is to keep them separate and prevent abuse of power by them checking each other.

(US Constitution)

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But in the UK...

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there are overlaps. Bagehot - because it is parliamentary, not presidential.

The Executive is taken from within the Legislative.

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The fear is...

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parties exert too much power, through parliamentary majorities (legislature) and the executive. FUSION OF POWERS!!!!

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Lord Hailsham says it's an -

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'elective dictatorship' - executives dominance over the legislature.

95 MPs are ministers (executive).

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e.g. Where Bailiff sat in on debate over development plan (legislature) and then on claimant's application for planning permission which was denied by the same Bailiff who sat on the appeal board (Judiciary/ claimant lost because of the development plan)...

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McGonnell v UK

seen as a breach of Art 6(1) right to fair trial.

ECrtHR - even the doubt, however slight the justification = sufficient to vitiate the impartiality of the court.

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Legislative Power

Primary law making entity -

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... Parliament.

BUT - Executive has extensive law making powers through operation of delegated legislation. Also have prerogative powers.

ALSO - judiciary can 'make' law through common law and interpreting statute.

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an example of the latter

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Shaw v DPP

ladies' directory. Told it wasn't illegal. Courts decided it was. They had "residual power to enforce... fundamental purpose of the law is to conserve safety, order and moral welfare of the state..."

also for judicial activism: Gillick v West Norfolk HA, Airedale NHS Trust v Bland (also invasive surgery needs consent, c.f. In Re F - mentally incapacitated couldn't consent)

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another example of the same

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R v R

Husband's attempted rape of estranged wife.

Was a law that said by marrying wife had consented for all time. Court said, no! Husband said this was retroactive law making... v. bad. Court said they were interpreting 'unlawful' in light of society's progress (other laws) and also that it meant he could be charged for violence but not rape (absurd). Also Parliament's intent... (in context of other laws?).

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BUT Parliament can always override the courts -

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Burmah Oil Co v Lord Advocate

compensation for stuff destroyed in war.

Parl. made law saying they didn't have to pay. War Damages Act (with retrospective effect)

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Judicial Power

Executive has some judicial power by statutory and prerogative sources - e.g.

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Changing tariffs for imprisonment

R v Home Secretary, ex parte Venables and Thompson

HS was found to have acted unlawfully (fettering discretion?)

Home secretaries powers have been reduced by Human Rights and Statutes (Criminal Justice Act), R (Anderson) v Secretary of State for the Home Department.

The Supreme Court (Constitutional Reform Act 2005, court started in 2009).

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Executive Power...

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Judiciary can't strike down laws like in US but can quash actions through judicial review.

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Mass political parties have... Barendt

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"destroyed the semblance of such (checks and balances and separation) a system which existed a century ago. Gov. effectively controls the legislature. but the judicial remains separate..." Barendt

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HRA reinforces separation of powers through...

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s4 - declaration of incompatibility.

CRA 2005 also upholds judicial independence

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Judicial review

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is an expression of the importance of separation of powers, acts as a check (GCHQ, ex parte Fire Brigades Union)

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Malone v Metropolitan Police Commissioner

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Police warrant for phone tap authorised by Home Office. Malone said violated right to enjoy private property, confidentiality and certain Human Rights.

Court found there was no such thing as right to privacy in English law. Also that just because it wasn't in law doesn't mean it's illegal. Has to be a first time for everything. BUT it is not the court's job to legislate in a new field. Therefore it's up to parliament.

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R (Nicklinson) v Ministry of Justice

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Right to die. Had a stroke, need assistance to commit suicide. An offence under Suicide Act 1961. Court said it DOES engage Article 8 (private and family life). Could have declared it incompatible but decided not to, was beyond remit of courts - perhaps because it was a policy thing, a matter of public opinion, because there was a reasonable argument for the illegality of it.

Said Parliament might want to review it but didn't force the issue.

POINT - didn't want to overstep their power, to meddle in legislation.

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R (Evans) v Attorney General

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FOI for Charles' letters. Court had granted the request.

Attorney general said he had power to refuse (via statute) by issuing a certificate.

Appeal court said this shouldn't be (by EU directive can't be) allowed. Neuberger "as a matter of constitutional principle" Attorney's power should be interpreted restrictively. Why? Specifically to keep the separation of powers - Attorney = executive, Tribunal (that authorised FOI) = judicial. Can't have the executive overriding the judicial like that (especially without good reason, e.g. national security.)

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R v secretary of state for the Home Department, ex parte Fire Brigades Union

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New criminal injuries compensation scheme act passed. Home Sec given power to decide WHEN enforced. Ignored it and drew up own tariff scheme. Court said we can't force you to implement, but you must consider when you will and also illegal to just invent your own.