Relationship Between three Organs in Government. In light of the doctrine of separation of powers, it is necessary to evaluate the manner in which, and the extent to which, separate functions are allocated between the different bodies and kept separate. This task is most conveniently undertaken by examining the relationship between first, the executive and legislature, secondly, the legislature and judiciary, and, thirdly, the executive and judiciary.
Relationship Between three Organs in Government:-
As stated earlier, there are three organs of a government the legislature which makes the laws, the executive which implements them, and the judiciary which interprets laws and decides disputes. The organs of the government are so structured that they can adequately perform the functions required of them. This system of dividing powers among the three organs of a government is called the separation of powers.
Executive and Legislature:-
Parliament provides the personnel of government. Ministers of the Crown, including the Prime Minister, must be members of either House of Parliament. By convention, the Prime Minister must be a member of the House of Commons and it is for this reason that Lord Home renounced his peerage in 1963, under the Peerage Act of that year, to revert to being Sir Alec Douglas-Home, Leader of the Conservative Party and subsequently Prime Minister. It is thus immediately apparent that the executive, far from being separated from the legislature, is drawn from within its ranks. It is for this reason that Walter Bagehot in The English Constitution denounced the theory of the separation of powers under the English constitution. For Bagehot, this feature of the constitution, however, far from being a dangerous divergence from an ideal separation of powers, had clear merits. To Bagehot, the close relationship between the executive and parliament represented ‘the efficient secret of the English constitution which:
…May be described as the close union, the nearly complete fusion, of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our constitution lies in the entire separation of the legislative and executive authorities, but in truth, its merit consists in their singular approximation. The connecting link between the executive and parliament is the Cabinet.
There are, however, opposing views. Lord Hailsham, the Lord Chancellor in 1979-87 Parliament, asserted that the current electoral process which, generally, but not invariably returns a government with a large majority of seats in parliament, contributes to what he terms, an elective dictatorship, that is to say, a situation in which the executive controls the legislature. While Bagehor’s view may have been tenable at the time in which he wrote, it is now a da too simplistic and inaccurate a description of the working of the constitution.
Prima facie, this close union of executive and legislature would suggest that the potential for abuse against which Montesquieu warned exists at the heart of the constitution. This would be so if it were to be demonstrated that the executive controls parliament. Judgment on that Matter must be suspended until the working of parliament has been examined in detail, in Chapters, 13-15.
There exist, however, tenable grounds for such an argument, but these must be set against the extent to which procedural mechanisms in parliament avoid an actual or potential abuse of power by the executive. The constitutional principle entailed in this close union between, the executive and legislature, deriving from historical practice, is that of responsible government. that is to say that the powers of government are scrutinized adequately by a democratically elected parliament to whom every member of government is individually and collectively responsible.
Statutory limits on membership:-
There exist statutory limits on the extent to which the executive can dominate parliament. The House of Commons Disqualification Act 1975 preserves the separation between the executive and legislature by providing that certain categories of people are disqualified from holding parliamentary office. Under section 2, holders of judicial office, civil servants, members of the armed forces and the police, and members of foreign legislatures are debarred from office.
The Act also limits the number of government ministers in the House of Commons to 95 (section 2). Despite this limitation, 95 ministers, when considered together with their loyal Parliamentary Private Secretaries, ensure that the government will generally enjoy the automatic support of some 120 Members of Parliament.
Where the government has been elected with a strong majority of seats as in 1983, when the Conservative Party had a majority of 144, and in 1997 when the electorate returned a Labour government with a majority of 179 it must be conceded that the potential for dominance exists. An evaluation of this matter depends upon the adequacy of parliamentary procedures.
Political and procedural checks on government:-
The government must be recognized, irrespective of the size of its majority of seats in parliament is dependent upon parliament for its continuance in office. The loss of a vote of confidence on a matter of policy central to a government’s program will cause the government to fall, as occurred in 1979 when the Labour Prime Minister, Mr. James Callaghan, w4 forced to seek a dissolution of parliament and call a general election.
Furthermore, parliamentary procedures are devised to secure adequate scrutiny for legislative proposals, and it cannot merely be assumed that the government will always get its legislation through in the form envisaged. By way of example, in 1983-84, the Police and Criminal Evidence Bill was substantially amended following pressure from politicians of all parties, pressure groups, academics, and lawyers.
In 1986, the government despite having a strong majority in parliament was forced to abandon its plans for legislation to deregulate Sunday trading due to parliamentary pressure. In 1994, the Conservative government faced unprecedented opposition over membership in the European Community and Union.
While the government narrowly won a vote of confidence in the Commons, eight of its own members refused to support the government, and the Conservative Party whip was withdrawn. The constitutional effect of losing eight members under the whip was to place the government in the position of a minority government.
More recently, in the 2003 to 2004 session, in spite of having a significant majority in the House of Commons, the government won a vote on its Higher Education Bill by a majority of just five votes.
The role of the official Opposition must also be considered. Her Majesty’s Loyal Opposition is, constitutionally speaking, a ‘government in waiting. Not only is it the function of the Opposition to question, challenge and oppose the government, but it also puts forward alternative policies and solutions to problems. In order to ensure that there is adequate opportunity for the Opposition to fulfill its constitutional role, 20 days per session are set aside for debate on subjects chosen by the Opposition.
Question Time, debates, and select committees:-
Question Time and debates in parliament ensure the accountability of the government to parliament. The administration of the state is scrutinized by a system of select committees in parliament with wide powers of inquiry.
The House of Lords:-
In addition to checks within the House of Commons, the House of Lords may cause the government to modify or abandon proposed legislation. The House of Lords has the power to amend and delay non-Money Bills for approximately a year before the Bill can receive royal assent under the Parliament Acts 1911 and 1949. Rather than risk the delay of legislation, the government may prefer to compromise its proposals and accept proposed amendments from the Lords.
Finally, the electorate, in addition to its role in a general election, can also express its displeasure with government policies during a parliamentary term at by-elections and local government elections. In the 1993 county council elections, the government lost control of many of the councils which had been its traditional supporters — clear evidence that no government can afford to ignore the views of the people. Subsequent by-elections confirmed the government’s loss of electoral support, as did the general election on 1 May 1997, when the Conservative government suffered a humiliating defeat.
Delegated legislation and the separation of powers:-
Delegated or secondary legislation raises important questions relating to the separation of powers. Delegated legislation refers to laws, rules, and regulations, made by government departments, local authorities, and other public bodies, under the authority of an Act of Parliament. ..every exercise of a power to legislate conferred by or under an Act of Parliament.
The principal justification for the delegation of such law-making power is efficiency. By granting delegated power, parliament is freed from scrutinizing every technical detail of a Bill, Delegated power also enables ministers and others to fill in the details after the parent Act has been passed. AV Dicey approved delegated powers on this basis. Delegated power has, however, been questioned. In 1929, Chief Justice Hewart criticized delegated legislation as being an abuse of power. An Interdepartmental Committee of Inquiry on Minister’s Powers exonerated ministers from this charge and defended both the necessity and desirability of delegated legislation.
In any parliamentary year, some 40 to 50 Acts of Parliament will be passed. The volume of delegated legislation, however, may amount to some 3,000 statutory instruments per year. While general Bills — public and private — are subjected to full parliamentary scrutiny, it will be seen in Chapter 15 that delegated legislation receives far more cursory examination by parliament as a whole. The implication of delegated legislation in constitutional terms is that a legislative function is being exercised by the executive and not parliament. The delegation of law-making power is a necessity given the heavy legislative program and the modern complexity of legal regulation. Provided that parliamentary scrutiny is adequate and that the courts are vigilant and effective in ensuring that delegated powers are exercised consistently with the law intra vires -it may be concluded that this ostensible breach of the separation of powers is unavoidable, although whether it is subject to adequate scrutiny and control remains questionable.
In addition to the delegation of power to make secondary legislation, Acts of Parliament may on occasion confer on ministers the power to amend primary legislation. Such powers are known as Henry VIII’s powers and are discussed on p 382 below.
Legislature and Judiciary:-
It has been stated above that parliament is sovereign and that the judiciary is subordinate to parliament. It has also been stated, perhaps paradoxically, that the judiciary is independent. This raises the question of how such apparently conflicting assertions can be reconciled. At the head of the judiciary is the Crown. The Crown represents the fountain of justice and all judicial acts are carried out in the name of the Crown. In law, it is the Crown that appoints all senior judges.
Rules against criticism of the judiciary:-
To reinforce the independence of judges, the convention dictates that there should be no criticism leveled at them from members of the executive but not from other Members of Parliament.
Parliamentary practice prohibits the criticism of judges other than under a motion expressing specific criticism or leading to an Address to the Crown for the removal of a judge. It was not, however, regarded as a breach of conventional rules when the then Prime Minister.
Mrs. Thatcher, in parliament, criticized the light sentence imposed on a child molester. There have, however, been other incidents where judges have been criticized in parliament.
In 1977, for example, motions were tabled for the dismissal of judges who had reduced a sentence for rape. further, a judge who described a rape victim as guilty of contributory negligence was criticized in parliament.
The manner in which Members of Parliament are controlled in terms of what they may, or may not, say is through the powers of the Speaker of the House of Commons. These powers will be considered in Chapters 13 and 17.
The subjudice rule:-
Where proceedings are either before a court or awaiting trial, Members of Parliament are barred from raising them in debate. If the matter has not yet reached the courts, the debate may be barred if the Speaker considers that there would result in a real and substantial danger of prejudice to the trial arising as a consequence. No reference may be made to criminal proceedings from the time of the charge being made until the final appeal is determined.
Parliamentary supremacy and the judicial function:-
The doctrine of parliamentary supremacy entails the necessary constitutional subordination of judges to parliament and has several implications. First, it is well established that the sovereign parliament can overturn any court decision by way of legislation.” Secondly, the judiciary’s primary role in relation to the interpretation of statutes is to give effect to the latest expression of the will of parliament.”
The Human Rights Act was consciously drafted in such a manner as to preserve the balance of power — and separation of power — between the judiciary and parliament. As will be seen more fully in Chapter 18, this is accomplished by providing that primary (but not secondary) legislation remains immune from judicial invalidation even where that legislation is ruled. to be incompatible with Convention rights. Where judges in the higher courts make ‘declarations of incompatibility, the matter is referred back to the executive to determine whether, and in what form, amending primary legislation should be enacted by parliament.
Judges as legislators:-
One of the most debated aspects of the relationship between the legislature and the judges lies in the question: ‘Do judges make law? In constitutional terms, the issue is whether by making law Cither by virtue of the doctrine of precedent or through the interpretation of statutes the judges are usurping the legislative function or, in other words, violating the separation of powers.
The role of judges as lawmakers must be understood against the backdrop of the long history of the common law ~ the law common to the whole country, developed by the judge, rather than by the Act of Parliament.
In terms of volume, Parliament only became the principal law, maker in the nineteenth century when the effects of industrialization required major pro, grams of legislation, much of it relating to safety at work and employment law, housing, health, and relief from poverty.
As discussed in Chapter 6, Acts of Parliament are supreme and may overturn the common law, as occurred for example in Burmah Oil v Lord Advocate (1965) in which the House of Lords awarded compensation for property loss and Parliament overruled the decision by enacting the War Damage Act 1965.
However, when judges make law, Parliament may also ‘tacitly’ approve the decision by not interfering with it: when this occurs it can be said that the judges and Parliament are acting in a form of constitutional partnership. Parliament may also expressly endorse a judicial decision by incorporating it into statute, as occurred with the amendment to the statutory definition of rape following the House of Lords’ decision in R v R (1991 ).
The rules of precedent have been developed by the judges in order to ensure certainty and uniformity in decisions. The need for certainty is expressed in the word’s stare decisis standing by the decided cases. In essence, decisions of the highest court the Appellate Committee of the House of Lords are binding on all the courts lower in the hierarchy. Furthermore, the House of Lords is very slow to go against a previous decision of its own, although since 1966 it has had the power to do so.
Decisions of the next highest court the Court of Appeal are binding on courts lower in the hierarchy, and the Court of Appeal may only depart from its own previous decisions under limited circumstances. There is thus a structure in place by which the lower courts are controlled by the decisions of the higher courts.
It is of course essential that while the law is certain, it is also able to reflect changes in society. The requisite Mexibility is provided within the rules that structure the extent to which judges may depart from previous decisions. It should be noted that not all aspects of a previous case will be binding on a new case before the court.
What is binding’ is the ratio decidendi of the precedent case, and the ratio may be defined as the rule of law upon which the decision is founded or the material facts of the case plus the decision thereon. Other aspects of the precedent judgments are known as obiter dicta: things said by the way, which are not binding on future courts but may nevertheless prove to be highly influential in the future.
The rules also include the technique of distinguishing: the reasoning process through which it can be said that the facts before the court in the instant case can be distinguished from those of a precedent case; thereby making its decision inapplicable. Taken together, the rules relating to being bound by the higher courts and to the ratio and distinguishing produce a high degree of stability, while also allowing for necessary flexibility.
The rules of statutory interpretation, devised by the judges themselves, are designed to limit judicial creativity. Statutory interpretation is not straightforward, even though Acta of Parliament are couched in the detailed language in order to maximize clarity and minimize vagueness wort obscurity, Despite this attempt to achieve clarity in statutory language, it is artificial to deny that judges make law.
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. Judges have themselves abandoned the fiction of the ‘declaratory theory which asserts that they do not ‘make’ law but merely discover its true meaning.
From the separation of powers perspective, judicial lawmaking should cause disquiet only if judges display overtly dynamic law-making tendencies. By way of illustration, in Magor and St Mellons Rural District Council v Newport Corporation (1965), Lord Denning MR was accused by Lord Simonds in the House of Lords of ‘naked usurpation of the legislative function.
The reference by judges to government publications and records of parliamentary proceedings, for the purposes of interpreting statutes, has traditionally been regarded as improper. In Davis v Johnson (1979), Lord Denning MR stated that privately he looked at Hansard in order to establish the true construction of a statute, a revelation not approved of by the House of Lords.
The Renton Committee’s Report on the Preparation of Legislation and the Law Commission’s Report on the Interpretation of Statutes had both ruled against any relaxation of the rules on the basis, inter alia, that such reference was of doubtful benefit, difficult in practice, and costly.
Exceptions to this rule existed. For example, in Black-Clawson International Ltd v Papierwerke AG (1975), the House of Lords accepted that reference could be made to Law Commission reports and to the reports of parliamentary committees in order to establish the defect in the previous law which parliament was seeking to redress.
Further, in Pickstone v Freemans plc (1989), reference to Hansard was regarded as justified for the purpose of determining the purpose of the legislation and government policy. Until the case of Pepper v Hart (1992), it had been widely accepted that the courts should not, except under these circumstances, consult materials preparatory to the enactment of the statute or the records of parliamentary proceedings in connection with its passage in order to assist with the task of interpretation. In Pepper v Hart, however, the House of Lords conceded the limited right to resort to Hansard as an aid to interpretation.
The Attorney General had argued that any relaxation in the rules would amount to a questioning of the freedom of speech in debate in parliament contrary to Article IX of the Bill of Rights 1689. Lord Browne-Wilkinson, for the majority, rejected that reasoning, declaring that far from ‘questioning the independence of parliament and its debates, the courts would be giving effect to what is said and done there.
The traditional techniques of statutory interpretation contrast markedly with the European method of interpretation. Civil Codes are, for the most part, phrased in broad language which indicates the objective(s) being sought. The interpretative technique the teleological or purposive approach is accordingly designed to guide the judge toward the desired outcome and involves far less detailed construction of the statutory words than is customary within the English legal system.
The High Court of Parliament:-
Parliament has the sovereign power to regulate its own composition and procedure. Unde, parliamentary privilege derived from the law and custom of parliament and thus part of the common law parliament, and not the courts, has jurisdiction to rule on its own power Parliament cannot, however other than by an Act of Parliament extend its own privileges & The role of the judges in relation to privilege is to rule on its existence and extent.
Once the co is satisfied that a particular matter falls within parliament’s domain, it will defer to parliament, Accordingly, if, for example, a citizen is defamed by the absolute privilege of free speech in parliamentary proceedings, there is no legal redress. Privilege will thus protect the Member of Parliament from the law of defamation and leave the aggrieved individual without a legal remedy.
Privilege also extends to regulating the legislative process. It is for parliament alone to determine the procedure by which an Act of Parliament should come into being. It is clearly established that, in order to become an Act of Parliament, a Bill must pass its legislative stages in the Commons and Lords (except where the Parliament Acts apply) before receiving royal assent, Once that process is complete, it is not for the judiciary to inquire behind the parliamentary roll.
Executive And Judiciary:-
With regard to the relationship between the executive and the judiciary, several matters having implications for the separation of powers require examination: the attitude of the courts in matters entailing the exercise of the royal prerogative; parliamentary privilege; judicial review; the role of judges in non-judicial functions; and the role of the Law Officers of the Crown.
The royal prerogative:-
The royal prerogative has significant implications for the separation of powers. Being the residue of monarchical power the prerogative is part of the common law and thus amenable to the jurisdiction of the courts. day, the vast majority of prerogative powers ate exercised by the government in the name of the Crown.
As will be seen later, the substance of many prerogative powers is political entailing matters of policy which the judges are not competent to decide or — to phrase it differently — matters which, if ruled on by the judges in a manner inconsistent with the inter’ predation of the executive, would place the judges in a sensitive constitutional position and leavé them open. to accusations of a violation of the separation of powers. the hat is not to suggest, however, that the courts have no role to play with respect to the royal prerogative.
The traditional role of the courts is to rule on the existence and scope of the prerogative, but — having defined its existence and scope ~ to decline thereafter to rule on the exercise of the power. However, if Council of Civil Service Unions v Minister of State for Civil Service (1985) (the GCHQ case); the House of Lords made it clear that the courts have jurisdiction to review the exercise of executive power irrespective of whether the source of power is statutory or under the prerogative.
Having seemingly extended the jurisdiction of the courts in relation to the prerogative, the House of Lords, nevertheless, proceeded to rule that there exists a wide range of ‘nonjusticiable’ matters which should be decided by the executive rather than the courts: a clear expression of the separation of powers.
Law Officers of the Crown:-
The Law Officers of the Crown — the Attorney General and the Solicitor General – are members of the government. The Attorney General may also be a member of the Cabinet. The Attorney General is bound by conventions that serve to limit the overlap in functions, Thus, where his consent to prosecution is required, by convention the Attorney General must avoid party political considerations, and may not take orders from the government. This is a particularly delicate matter when essentially political prosecutions are being contemplated. The Law Officers are advisers to the government and its ministers, and, by convention, this advice must never be disclosed. In 1986, this convention was breached when Leon Brittan, then Secretary of State for Trade and Industry, revealed advice given on the Westland Helicopter rescue plan.
As part of the government’s 2007 proposals for constitutional reform, it has been announced that the 500-year-old office of the Attorney General is to be reformed. The reason for reform centers on the concerns over the Attorney General’s role as chief legal adviser and the separate role as chief prosecutor and guardian of the public interest. It is expected that the role of chief legal adviser to the government will be undertaken by a Counsel to the Government with responsibility for prosecutions being separated from the government.
Judicial review of administrative action is designed to keep those persons and public bodies with delegated powers within the scope of the power conferred upon them by parliament: the doctrine of intra vires. Thus, if a minister of the Crown or a local authority or other public body exceeds the power granted, the courts will nullify the decision taken and require that the decision maker reach a decision according to the correct procedure.
Judicial review is concerned with the process by which decisions are made, not with the merits of the decision itself, nor with the merits of the legal rules which are being applied by the administrator.
From this perspective, it may be said that the judges are upholding the will of parliament in controlling the exercise of powers delegated by it to subordinate bodies. The scope of judicial review has increased considerably and the rule of law enhanced since the coming into force of the Human Rights Act of 1998.
The Human Rights Act, section 6, makes it unlawful for any public body excluding Parliament but including the courts to act in a way that is incompatible with the Convention rights protected under the Act. A person who claims that a public authority has acted or proposes to act in a manner incompatible with Convention rights may bring proceedings including an application for judicial review against that body.
Judges as fact Finders:-
It has become increasingly common for the executive to appoint judges as chairmen of the tribunal of inquiry. That this should be so is unsurprising. Judges are equipped by training and experience to review evidence with impartiality and rigor and to present findings in a logical manner, Inquiries have been conducted by judges into such diverse matters as state security; civil Unreg and terrorism; football club disasters; BSE in cattle; arms co Iraq; and 2003 inquiry into the circumstances surrounding the death of the government weapons inspector Dr. Davig Kelly.
Many of these inquiries involve sensitive political issues. As a result, it is inevitable that judges will attract criticism from one quarter or another. There exists the potential for charges of political bias in the report, or that the judge has avoided the issue and effected a ‘whitewash’, o, that the inquiry has not been conducted properly. To place judges in a position where criticism is likely to ensue is to create the possibility that their independence and impartiality will be damaged.
The Inquiries Act 2005 goes some way to meet such concerns. The Act provides that a Minister may establish an inquiry into events that ‘have caused’ or ‘are capable of causing public concern’. Section 10 of the 2005 Act provides that where a Minister proposes to appoint a judge the Minister must consult, as appropriate, the senior Lord of Appeal in Ordinary, Lord Chief Justice of England and Wales, Lord President of the Court of Session, Lord Chief Justice of Northern Ireland.
Some academic constitutional authorities either deny or minimize, the relevance of the doctrine of separation of powers under the United Kingdom’s constitution. Geoffrey Marshall, for example, writes:
…the principle is infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies that ought to be supported or rejected on other grounds.
On the other hand, it has been judicially asserted by Lord Diplock that:
. . it cannot be too strongly emphasized that the British constitution, though largely unwritten, is firmly based on the separation of powers: parliament makes the laws, the judiciary interprets them.
Equally, Sir John Donaldson MR has stated that:
…It is a Constitutional convention of the highest importance that the legislature and the judicature are separate and Independent of one another, subject to certain ultimate rights of parliament over the judicature.
As Professor Munro has said, ‘there is something of a puzzle here.
The separation of powers is certainly neither an absolute nor a predominant feature of the British constitution. Nevertheless, it is a concept that is firmly rooted in constitutional tradition and thought. Judicial assertions of the importance of the doctrine can be explained in light of the constitutional position of judges in relation to parliament.
The concept of separation of powers offers the judiciary a device both for the protection of the independence of the judiciary and against allegations of judicial intrusion into matters more appropriate to parliament or the executive. The reluctance of judges to be drawn into such matters is reflected particularly strongly in relation to matters of royal prerogative and parliamentary privilege.
Accordingly, to deny the relevance of some form of separation of powers would be to misconstrue the evidence. The separation of powers is a principle respected under the constitution that exerts its influence on each of the fundamental institutions of the state. While the separation of powers is ill-defined and is not accorded absolute respect, it ought not to be lightly dismissed.