"Discuss the status of the doctrine of the separation of powers, with reference to the reforms implemented by the Constitutional Reform Act 2005".
1. Demonstrate a theoretical and practical understanding of the role of constitutional and administrative law within the English legal system and society generally.
2. Critically analyse and evaluate the general principles of the constitutional and administrative law as developed by the common law.
3. Critically analyse and evaluate the general principles of the constitutional and administrative law as developed by satute.
4. Make critical judgements about the role of constitutional and administrative law.
5. Apply appropriate principles of constitutional and administrative law to a range of problem scenarios and provide articulate, logical and legally accurate solutions.
Doctrine of the Separation of Powers
The aim of this report is to evaluate the status of the doctrine of the separation of powers while referring it to the reforms implemented by the Constitutional Reform Act 2005. The doctrine of separation of powers is a political principle which is a model for the governance of a state. Based on this model, the government of a state is divided into different branches each of which has separate powers and responsibilities in order to ensure that they did not contradict or conflict with each other. The Constitutional Reform Act 2005 was an act which was implemented by the UK Parliament which was divided into three parts. These parts include creation and setting the policies for the UK Supreme Court, the establishment of the office of Lord Chancellor and regulating the appointment of judges. This report will analyse the principle of the separation of power and the changes brought by the Constitutional Reform Act 2005. This report will evaluate the impact of this reform on the judiciary and its connection with other organs of the government due to change in the powers of the Lord Chancellor. This report will also evaluate the flaws of this reform relating to the general principles which are developed by the common law and statute.
The Political Doctrine of the Separation of Powers was first proposed by Montesquieu in his work titled De l’espirit des Lois; however, the first thought of separating the legislative power was proposed by John Locke. He proposed that the legislative power should be divided into three parts which include federative power, continuous legislative power, and discontinuous legislative power. This principle was incorporated into the constitution of the United States of America in 1787 by the founding fathers. It was provided by Montesquieu that it is a basic principle that the same person should not be allowed to form more than one party of the three organs of the government. In the legal system of the United Kingdom, the doctrine of the separation of power has been recognised, and the power is categorised into three parts which include legislative, executive and judicial. The legislative power is given to the parliament, the executive power is given to the Prime Minister and his Cabinet, and the judicial power is given to the Supreme Court and lower courts. The doctrine of the separation of power is significant for a democratic government because democracy cannot be established if one party is given the right to use all the powers.
This doctrine is a key part in modern democracies; however, this concept has been corrupted by governments through using the system of check and balance. Although a written constitution is not available in the United Kingdom, however, it did not mean that it is possible to claim that the doctrine of the separation of powers did not apply in the country. This doctrine exists but in a weak form due to changes brought forward by the government due to which the power of three different departments resulted in overlapping with each other. This existence of this doctrine was highlighted in the case of R (Anderson) v Secretary of State for the Home Department. In this case, it was held by Lord Steyn that the principle of the separation of power is strictly applied in the UK which is a key principle of governance. In DPP of Jamaica v Mollison case, the court accepted that the principle of the separation of powers between the judiciary and other organs of the government.
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 (CRA) came in force on 3rd April 2006, and it received Royal Assent on 24th March 2005. After the implementation of this reform, the role of the Lord Chancellor was affected. The judiciary system of the country has strengthened by this reform which is divided into seven parts, 149 sections, and 18 schedules. This reform makes provisions for adjusting the functions of the Lord Chancellor and the office, and it also provided a Supreme Court to substitute the existing role in the Law Lords in the House of Lords. One of the key areas which were affected by this reform was the application of the doctrine of the separation of powers in the United Kingdom which otherwise loosely applied in the UK. Although, the introduction of this reform did not influence the overlapping functions between executive and legislature, however, there are key changes made relating to the judiciary, judicial independence and the separation between the judiciary and other organs of the government. Walter Bagehot made a comment on the English legal system that it appears to be a “fusion of powers” rather than being compartmentalised. However, the regulations provided by the CRA 2005 resulted in reducing the dilution relating to separation of powers between different organs in the United Kingdom. This reform resulted in helping the judiciary to become separate from the other two branches; the legislation and the executive. The problems regarding the separation of power between the legislation and the executive were remained untouched under this reform.
Before the implantation of CRA 2005, the Lord Chancellor was given a place in all three organs of the government based on which he exercised functions relating to all three organs including judiciary, parliament, and executive. It was held that the Lord Chancellor was the head of the judiciary, the Speaker of the House of Lords and a senior cabinet member. Due to these powers of the Lord Chancellor, it was argued that the doctrine of the separation of powers did not apply in the United Kingdom. However, this confusion was corrected by CRA 2005. In this reform, the Lord Chancellor ceased to be the head of the judiciary. It was given under section 7 (1) of the act that the Lord Chief Justice is the President of the Courts of England and Wales based on which he is considered as the Head of its Judiciary. Moreover, a Lord speaker replaced the Lord Chancellor as the chairman in the House of Lords. The further changes brought in the CRA 2005 regarding the implementation of the doctrine of the separation of powers is further elaborated in two sections.
Before the introduction of CRA 2005, the House of Lords was the highest court in the United Kingdom. However, section 23 of the CRA 2005 provides the provisions for the creation of the Supreme Court based on which the House of Lords have been subsequently replaced. As discussed earlier, the Lord Chief Justice has replaced the Lord Chancellor as the head of the judiciary that is now responsible for managing important functions of the Court of Appeal, High Court, Crown Courts, County Courts, and Magistrates’ Courts. The provisions provided under the CRA 2005 for creating the Supreme Court as a separate entity shows that the Court of Appeal is different from the Parliament. After the introduction of section 23, it was held by Lord Falconer that the time has come for the highest court of the United Kingdom to move from the shadow of the legislature. The introduction of the new modern Supreme Court was symbolic action, and the mere physical separation with the parliament resulted in transpiring the confidence of the public in the judiciary system of the United Kingdom.
Changes to the Lord Chancellor
This was considered as a significant improvement because judges were not transparent, and they entertain the appeals in secretive Committee Room in the Parliament before the introduction of this reform. The objective of this reform was to promote transparency in the separation between the legislation and the judiciary in the United Kingdom. It is also highlighted by the fact that the judges who sat in the House of Lords did not have the power to vote based on which the principle of the separation of power is followed. It also resulted in stricter adherence to the doctrine of the separation of power in the United Kingdom. The removal of the Lord Chancellor as the head of the judiciary and the establishment of the Supreme Court are considered as two significant changes which were brought by CRA 2005 while complying with the principle of the separation of powers. These provisions resulted in completely separating the judiciary from the executive and the Parliament which increased the trust of people in the judicial system of the UK.
As discussed above, the judicial independence in the UK was strengthened by the CRA 2005 by removing the Lord Chancellor as the head of judiciary because his role in the appointment of judges was considered as a gross violation of the independence of the judiciary. The Lord Chancellor was prone to influenced by political agenda, therefore, his removal as the head of judiciary was considered as a positive move towards promoting transparency in the judiciary. The Judicial Appointments Commission is established under section 61 of CRA 2005 which is created for the purpose of judicial appointment, and this committee resulted in further reducing the role of the Lord Chancellor in the judiciary. This decision complies with the doctrine of the separation of power as it promotes diversity, specialisation, and transparency. A crucial aspect of the rule of law and the English legal system is judicial independence; however, this concept did not receive appropriate statutory recognition before the introduction of the CRA 2005. Section 3 (5) of the CRA 2005 has provided a statutory recognition to the judicial independence in which it is given that the Lord Chancellor should not influence judicial decision through any special access to the judiciary. Moreover, this change is also hoped to comply with the European Court of Human Rights (ECHR) which confirms section 6 (1) by providing that the tribunal must not only seem independent, but it must actually be independent.
The close interrelation which exists between the Parliament and Executive is another key reason which is why the application of the separation of powers is considered as diluted in the United Kingdom. Before the introduction of this reform, it was seen that the functions of executives and the legislature were overlapping. However, it is not the case with the United Kingdom only, and there are various other nations in which the legislature and executive functions are overlapping. Many experts also argue that perhaps it is not favourable for the country to separate its two organs that is legislature and executive. Walter Bagehot provided that the fusion which is created due to overlapping of the executive and legislature is an efficient secret of the English constitution. A good example is that the Prime Minister is the leader of the majority party in the House of Commons, and he also performs the functions of the head of executives.
Creation of the Supreme Court
It is a key flaw in the CRA 2005 which was not addressed and its conflicts with the principle of the separation of powers. Another key disadvantage of CRA 2005 is that there is lack of proper implementation of checks and balances because there is a fused composition between the legislative and executive branch in the United Kingdom. For example, a fusion is seen between the legislative and executive because the executive is drawn by the legislator. Based on this analysis, it can be said that although there has been a meaningful separation of powers relating to the judiciary in the United Kingdom after CRA 2005, however, there has been no impact on the separation of powers between legislature and executive.
In conclusion, the Constitutional Reform Act 2005 is considered as an important step which is focused towards achieving the independence of the judiciary which is achieved due to meaningful application of the doctrine of the separation of powers. This objective is achieved by changing the role of the Lord Chancellor in the legislature, judicial and executive which resulted in restricting the powers. By creating the Supreme Court, the CRA 2005 has shown the true separation between the legislation and the judiciary. Moreover, the establishment of the Judicial Appointment Commission resulted in promoting transparency and specialisation in the appointment of judges, and it promotes the implementation of the principle of the separation of powers. Therefore, the introduction of CRA 2005 has resulted in strictly separating the powers by separating the judiciary from other two organs, however, the problem relating to the separation of powers in legislator and judiciary organ has not been addressed by this reform. On the other hand, it is also considered that the interconnection between the executive and legislature is crucial for the implementation of an efficient mechanism and changes in these policies will not be favorable for the United Kingdom.
Kouroutakis AE, The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis (Routledge 2016).
Masterman R, The separation of powers in the contemporary constitution: Judicial competence and independence in the United Kingdom (Cambridge University Press 2010).
Parpworth N, Constitutional and administrative law (Oxford University Press 2018).
Vile M, Constitutionalism and the Separation of Powers (Liberty Fund 2012).
Wheatle S, Principled Reasoning in Human Rights Adjudication (Bloomsbury Publishing 2017).
Bamforth N, ‘Current issues in United Kingdom constitutionalism: An introduction’ (2011) 9 (1) International Journal of Constitutional Law 79-85.
Beatson J, ‘Reforming an unwritten constitution’ (2010) 126 (1) Law Quarterly Review 48-71.
Birkinshaw P, ‘Freedom of information and its impact in the United Kingdom’ (2010) 27 (4) Government Information Quarterly 312-321.
Bogdanor V, ‘An era of constitutional reform’ (2010) 81 The Political Quarterly 53-64.
Bulman-Pozen J, ‘Federalism as a Safeguard of the Separation of Powers’ (2012) 112 Colum. L. Rev. 459.
Clark M, ‘Advice and Consent vs. Silence and Dissent-The Contrasting Roles of the Legislature in US and UK Judicial Appointments’ (2010) 71 La. L. Rev. 451.
Hazell R, ‘Judicial independence and accountability in the UK have both emerged stronger as a result of the Constitutional Reform Act 2005’ (2015) 2015 Public Law 198-206.
Minkkinen P, ‘Political constitutionalism versus political constitutional theory: Law, power, and politics’ (2013) 11 (3) International Journal of Constitutional Law 586-610.
Table of cases
DPP of Jamaica v Mollison  2 AC 411
R (Anderson) v Secretary of State for the Home Department  UKHL 46