‘Our unwritten constitution rests upon a separation of powers. It also rests upon a mutual recognition of those powers. It is for Parliament to make new laws and to amend old laws, including the common law. It is for the courts to interpert and enforce the law. It is for the government to govern within the law. Each in their own sphere is supreme.’ Lord Donaldson of Lymington MR in M v Home Office and Another (1994). Discuss
Lord Donaldson of Lymington gave this classic summary of the theory of the separation of powers at a time when the three branches of government (judicial, executive and legislative) were rather less separate than they are now. The separation of powers dates back the 17th century French philosopher Montisquieu. In absolutist France he was describing the system of governance as he would like to see it rather than the despotism that existed in France at the time.
The separation of powers is a core principle of the US constitution. Thew idea is that the three branches be separate from each other because they have different concerns and it would wrong for one branch to intrude upon the rights and duties of another. There is the belief that there must be checks and balances to prevent bad policies and even moral badness going too far. Decisions are to be reached after due consideration in the legislature and in the judiciary. Such decisions are subject to review and repeal. The decisions of the executive are also subject to examination and possibly reversal by the judiciary. Further, such decisions can be challenged in the judiciary as unconstitutional. A higher court can review the decisions of a lower court and overturn such decisions where necessary.
In England and Wales the legislature comprises the UK Parliament, the Welsh Assembly, the London Assembly and the local authorities. The judiciary comprises all the courts and judges up to and including the Supreme Court – the European Court of Human Rights may have cases refered to it by courts in England and Wales so it is also part of the judiciary. The courts go up in tiers with judgments of a lower court being potentially subject to review and occasional revision by higher courts. The executive branch comprises of the Cabinet, head by the Prime Minister. The executive also comprises the First Minister for Wales and the executive of the Welsh Assembly. All junior ministers of the UK Government are also part of the executive. Being part of the executive allows one to make decisions about government policy and issue orders. Some legislative functions have been devolved to government ministers – allowing them to make law. Such decision-making is accountable to Parliament and the courts.
In 1994 when this statement was made the three branches somewhat overlapped. The Prime Minister had extensive royal prerogative powers. These powers dated back to medieval times when the monarch could simply command things to be done. By convention these powers have been exercised by the Prime Minister on behalf of the sovereign. These included the right to sign treaties, declare war, command the armed forces and issue pardons. The Prime Minister had very wide powers of patronage to appoint people to government posts in Cabinet, as an ambassador or to make someone a peer and therefore a member of the House of Lords. Therefore the executive controlled the membership of the upper chamber of the legislature. The judges were also appointed by him so he controlled membership of the judiciary. It should be noted that in both cases the Prime Minister did not have the legal power to remove a peer or judge.
The Lord Chancellor was the speaker of the House of Lords and thus in the legislature. He was also a Cabinet Minister (thus in the executive) and he was head of the judiciary. He was therefore in all three branches of government.
Lord Acton’s famous phrase is that, ”power tends to corrupt and absolute power tends to corrupt absolutely.” The branches must be kept separate in case a foolish government makes mistakes on too large a scale or indeed a malevolent government comes to power and is able to do evil without being stopped. If one’s actions cannot be stopped it is tempting to abuse power. Aristotle said if one had a cloak that made on invisible and one could commit any crime safe in the knowledge that one could never be caught most people would choose to use this power to do mischief.
The situation has been resolved by the Constitutional Reform Act in 2005 where the Lord Chancellor was made no longer in charge of the judiciary. The Prime Minister’s powers of patronage have been much reduced with the decision to declare war subject to approval by Parliament.
The executive no longer appoints judges – they are appointed by a judicial appointments commission. Executive decisions are subject to judicial review. Judicial review tests that the orders given are lawful and the process by which they are arrived at is lawful. Judicial reivew results in an action being found to be unlawful in about 20% of cases. The judiciary have had security of tenure for centuries. This is so they are not prone to political manipulation. An address from both House of Parliament can remove a judge for disgraceful behaviour.
The executive and legislature overlap inasmuch as ministers are almost always drawn from either house of Parliament. The legislature holds the executive to account – scrutinising their decisions. This takes place on the floor of either house but also in committees with specialist knowledge.
The judiciary and the legislature have an unusual relationship. As Walter Bagehot observed parliamentary sovereignty is supreme. His doctrines stated that,”no Parliament can bind its successors” and that, ”Parliament is omnipotent in all things except the power to destroy its own omnipotence.” The judiciary cannot strike down statutes as illegal.
The judiciary is loathe to interfere too much with the executive and especially the legislature. The judiciary is not elected whereas the legislature is. This democratic mandate confers legitimacy on the legislature. The executive is drawn from the legislature and so has a democratic mandate indirectly. If Parliament makes a bad or illogical law some judges have ruled that this is for Parliament to correct and not the courts. Courts are reluctant to usurp the law-making function of Parliament. Parliament must respect court rulings however politically inconvenient they are. By convention politicians do not criticise judicial decisions. David Blunkett as Home Secretary broke this and denounced judicial rulings that went against his anti-terrorism drive.
Lord Donaldson said that courts interpret the law but courts also make law. They sometimes fill in the gap in law. Lord Denning was adamant that judges can and do make law. Equity is after all court made law.
The three branches of government are now fairly separate. Each has its own area of competence. By competence we mean field of expertise and area where it has the right to act.
Lord Donaldson’s description