Question on Separation of Powers

Section A:  

Question 1:

It is known that the UK maintains an unwritten constitution, therefore the scrutiny of the Government is necessary in order to ensure an effective separation of powers amongst the various branches of the state: the concept of separation of powers is necessary to prevent the state from acting with tyranny. The Constitutional Reform Act 2005[1] is a legislation which was reformed by Parliament in order to enshrine the concept of judicial independence in law. This essay will be analysing how significantly this legislation has managed to achieve full separation of powers throughout the various branches of state.

The concept of the separation of powers is very important in constitutional law: it is a theory which explains the manner in which the state distributes its power through the three branches of state. The three branches of state divide into the legislative, the executive and the judicial powers. The legislative branch is responsible for, scrutinising, amending, enacting and repealing the law at times they can also scrutinise the executive for the manner in which they exercise power.[2] Legislations enacted by the legislative branch of state enable the executive to run the country with the necessary power required. The second branch of state is the executive, which ensures that the laws made by the legislature are being enforced, the executive exercises power inherent in their role in order to run the country. The third branch of state is composed of the judiciary which consists of courts and tribunals, who are responsible for interpreting and applying the law in cases brought to the courts and tribunals: they also maintain a duty to ensure that the rule of law is respected.[3]

Recent constitutional reform of the 2005 Act has brought further attention to the concept of judicial independence, however, it has not changed the manner in which judgements are made or given by judges, it still remains the same.[4] The theory of separation of powers has resulted in constitutional reforms, which have previously resulted in findings which contradict the laws of the UK against the European Courts of Human Rights (ECtHR). Constitutional reforms have also enabled the establishment of a Supreme Court which replaces the House of Lords Appellate Committee.

An initial example of how significantly the reform of the Constitutional Reform Act 2005 significantly achieves a full separation of powers amongst its branches of state, is presented in the case of McGonnell v United Kingdom [2000][5], both the European Courts of Human Rights and the judiciary of the UK, scrutinised the executive’s role in sentencing the prisoners. It was argued that the power being exercised by the executive in this matter amounted to the executive exercising powers which are only inherent to the role of the judiciary. In this case it is evident that it was not problematic as the concept of separation of powers was established amongst the executive and judiciary as a result of the CRA 2005 being implemented by the courts. Separating the branches of state through scrutiny ensures that the state does not act with tyranny towards the other branches of power.

Furthermore to, stating that the CRA 2005 aided the UK in achieving a significant separation of powers amongst its branches of state it can be seen in the case of V v United Kingdom [1999][6], the Home Secretary decided the tariff of the juvenile offenders, highlighted how the power of decision making can be transferred from the executive branch of state to the judiciary: which enabled in bringing the British constitution closer in achieving a full separation of powers amongst its branches of state. There are some theorists who support and believe that the concept of separation of powers is required in order to ensure that too much power in the hands of the law makers is not exercised vigorously, henceforth, introducing the separation of powers through the three branches of state. Theorists such as Montesquieu further explore the concept of the separation of powers by acknowledging that total separation of powers could aid in providing further protection for the citizens of the state. This was explored by Montesquieu in his 11th publication of De L’Esprit des Lois in which he noted that ‘excessive use of power by the state machinery, which, if left unchecked, may be detrimental to personal liberty.’ [7]  This goes to show that the concept of separation of powers does not hinder but rather aid in ensuring that power is equally separated amongst the branches of state and that these powers are required to be constantly assessed and checked in order to ensure the state does not act with tyranny when excessive power is being exercised.

John Locke was another theorist who was clear on the necessity of having a separation of powers between the legislature and the executive however, not on the fusion of the two branches of state. Locke was of the belief that power could potential be used vigorously, if the legislature was also permitted to implement law: believing that too much power in the hands of the law makers could enable themselves to be exempt from enforcing the law. Locke also believed that in order to further achieve a full separation of powers amongst all three branches of state, their needs to be a separation amongst the people: therefore, the same people should not have power to exercise within the branches of the executive and the legislature.[8]

Nevertheless, it can be seen that the concept of separation of powers has been significantly achieved by the Constitutional Reform Act 2005 and that there are theorists such as John Locke and Baron de Montesquieu who support and believe in the necessity of having separation of powers amongst the branches of state.

[Word Count: 1053]

Question 2:

The British Parliament also referred to as the Westminster Parliament is legally permitted to pass, amend or repeal any law it desires. A similar concept is also applicable to the House of Commons and the House of Lords: where the Parliament Act of 1911 and 1949 are being used, then this concept no longer stands, as it is no longer the monarch who is required to grant assent it is the Parliament who holds the supreme law-making power. However, at times Parliament will not be able to pass any legislation it wants, when matters of politics are involved. This essay will be analysing how effective the validity an Act of Parliament is once enacted, inhibiting UK Courts from refusing to obey Parliaments legislations.

The UK Parliament is composed of House of Lords and House of Commons, the majority party is the one who rules: Westminster Parliament possesses the power to amend, repeal and enact any legislation it wishes, it can also inspect the executive’s exercise of power. Since the late 17th century, the judiciary has accepted Parliament’s legislative supremacy, making Parliament in the UK the absolute law-maker.[9] At times the judiciary has also enforced Acts of Parliament, it is acknowledged by many theorists that Parliamentary supremacy is a fundamental principal of the British constitution. However, it must be recognized that since the UK joined the European Union in 1973, it handed over sovereignty to Europe to the extent that European Union law takes precedence over Parliaments legislations: outside areas of EU law Parliament retains its supremacy.[10]

Westminster Parliament uses Parliament Acts 1911/1949,[11] where suitable, to enact legislation, also acknowledged by the judiciary. Both the Parliament Acts of 1911 and 1949 were introduced in order to limit the power the House of Lords had over the House of Commons.[12] Lords’ rights to veto the bills of the House of Commons was removed, and reformed to only permit the House of Lords in delaying but no longer vetoing bills. If a bill is delayed after a year the bill is passed and it becomes an Act of Parliament without the assent of the House of Lords. Parliament is free to enact law on any subject matter, and UK Courts cannot refuse to obey Acts of Parliament or question their validity, as it has been seen previously Parliament sometimes enacts retrospective legislation.[13]

Albert Venn Dicey, was a British constitutional theorist who believed that (1) Parliament is the supreme law maker, (2) Parliament’s acts cannot bind its successors and (3) that no man can interfere with an Act of Parliament once it has been passed.[14] Despite UK’s membership of the EU and Council of Europe, the doctrine of parliamentary supremacy is upheld in the UK: EU law takes precedence over the Acts of Parliament but only to a certain extent, otherwise, Parliament has not completely given up it supremacy to the Council of Europe. For example, Brexit, which is the UK’s withdrawal from the European Union.

In the case of R v Secretary of State for Exiting the European Union [2017][15], it is evident that an enacted Act of Parliament enforces that the UK Courts obey and not question the validity of Parliaments legislations. In this case the Supreme Court upheld the decision of the Divisional Court that the government does not retain power under royal prerogative in accordance to Article 50 for the UK to withdraw from the European Union. Using this approach, the courts established that, the Parliament was required to vote on such a proposal before passing any legislations. The Parliament enacted the European Union (Notification of Withdrawal) Act 2017[16], displaying Parliaments supremacy in the UK and showing that Parliament only permitted external bodies such as the European Union and the Council of Europe to borrow some power, but not fully take precedence over Parliament’s prerogative.

This if further acknowledged in the case of R v Secretary of State for the Home Department [1995][17], the court held that when an Act of Parliament permits an individual such as a minister to exercise power, it does not allow an individual to ignore the Act when it comes to deciding the provisions: Parliament is the body who possesses power to change the statue not the minster. Therefore, it is established from this case that no UK Courts, or any of its participating members such as the Minister, the Home Secretary or any other bodies can refuse to obey an Act of Parliament.

However, it must also be known that UK Courts have previously refused to obey and have questioned the validity of an Act of Parliament. This is evidently displayed in the case of R v Secretary of State for Transport (No. 2) [1991][18], where the courts held that there was dispute amongst whether EU law or domestic law should be applied in this case. The courts came to a conclusion that EU provisions take precedence over an Act of Parliament, and therefore, they should be set aside in this matter. Lord Bridge reiterated this by stating ‘… the duty of the United Kingdom court, when delivering final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of community law.’[19] Therefore, it is established that as long as the UK is a member of the EU and Council of Europe during international matters, UK courts are obliged to give effect to EU provisions where appropriate.

To summarise, it is demonstrated that even UK’s membership of the European Union and Council of Europe, does not take away from Parliaments Supremacy: for Parliament is enabling these bodies to borrow power. Despite being a part of both these memberships UK Parliament remains supreme, meaning Parliament can choose to reclaim its power by withdrawing from these external bodies; this is evidently presented in the departure of the UK from the European Union (Brexit).

Section B:

Judicial review is acknowledged to be the legal means of holding the Government accountable; judicial review is a challenge made by an individual or a group which is upheld in the Administrative Court of the High Court: who are responsible for determining the lawfulness of the decision, act or omission which is being challenged. Daniel has a strong Judicial review case against the Health Minister on the grounds of S1(a) and (b) of the Public Health Act 2019 (PHA 2019) on the basis that 7 days’ notice was not issued, considering that Lurgi is a non-fatal rash and that the Health Minister did not consult with either medical or scientific experts before further extending the Stay-Away Order for two additional weeks.

The primary procedural issue faced in this case, is determining whether Daniel has brought his judicial review within a three month time-frame: most judicial review case are required to be brought before the court promptly within three months of a decision being challenged.[20] The next procedural step is to acknowledge whether or not Daniel has taken the time to rectify this situation, by writing a letter or carrying out any other means of contact to the Health Minister in order to resolve this issue he believes to be unlawful. From this case it is evident that Daniel wrote a complaint to the Minister with soon after learning that the Stay-Away Order applied to the local park would affect his bird-spotting group. However, despite Daniel’s letter of complaint to the Health Minister, enquiring the reasons for why his park was included under the Stay-Away Order, the Minister failed to reply to him. Therefore, it is acknowledged that Daniel did exhaust all the available resources in order to rectify this situation, however it is the Health Minister who is at fault, for failing to reply to Daniel.

Tasnia is another member of the community who is challenging the Health Minister based on S1(b) of the PHA 2019, as she over-heard the Minister considering to extend the Stay-Away Orders for an additional two months: this was considered by the Minister in order to prevent high infection rates affecting his re-election campaign. Tasnia took measures to inquire whether the Minister was willing to reconsider the initial decision of closing the pool, she did so by explaining that Lurgi would not survive in the chlorinated water of the swimming pool. Due to the Minister not cutting the phone line, Tasnia over-heard the Ministers plans for further extending the Stay-Away Orders for an additional two months. Tasnia would like to bring her judicial review case before the court in accordance to, S1(b) that the Minister failed to consult with medical and scientific experts before further extending the Order not only for an additional two weeks but rather two months. As Tasnia over-heard the Health Minister’s conversation with another Minister it was made evidently clear that the Health Minister took the action of further extending the Order not in the interest of preventing the community from being infected with Lurgi, but rather the interest of ensuring that high infection rates did not affect his re-election campaign. Therefore, in addition to this Tasnia would also like a judicial review against the Health Minster for tending more to his reputation than the needs of his local community.

The next step in the process of judicial review required to be carried out by both Daniel and Tasnia, is proving that they both have sufficient interest in challenging the Health Minister and bringing their judicial review case before the court. From the case of Attorney General v Fulham Corporation [1921][21], it is evident that the people of the community would be personally affected by the actions of the corporation. This case displays that the corporation had a statutory obligation to provide warehouses for the poor, but instead they were doing this in an attempt to prevent the disease. Similarly, to the actions of the Health Minister who was considering further extending the Stay-Away Orders not in the interest of the community but in his own personal interest for ensuring his next re-election campaign.

In addition to this Sports4All, would like to bring a judicial review case against the Health Minister however, it would not be deemed reasonable as there is no procedural impropriety issues present here in accordance to the PHA 2019. Sports4All is a campaign group who the government consults with in regards to sports groups, however, in this matter the Health Minister did not. In accordance to S1(b) the Health Minister is only obliged to consult with medical and scientific experts before extending the Stay-Away Order. Therefore, any consultations made in the past with this campaign group may be considered as being more of a matter of courtesy rather than affirmation. Therefore, Sports4All may fail in requesting the court to present a mandatory order to enforce the Minister to consult with the campaign group, as the Minister is obliged to respect the PHA 2019 statue.

Even though Sports4All does not have sufficient interest in bringing a judicial review case before the court, since they are not directly affected by the actions of the Health Minister because they are a campaign group and not an individual, they act as a third party intervenes in support of Tasnia as they maintain sufficient knowledge in the field of sports.

In regards to substantive issues, it is evident that both Daniel and Tasnia’s complaint to the Health Minister were dismissed. Therefore, both Daniel and Tasnia would like to request the court to quash the Minister’s rejection and enable them to bring their arguments forward in regards to the affect the extension of the Stay-Away Orders have on their local activities.

Therefore, it is recognized that both Daniel and Tasnia would like to request the court to allow this judicial review case to proceed, as strong grounds of illegality, procedural impropriety and irrationality are made present.

[1] Constitutional Reform Act 2005.

[2] Webley L & Samuels H, ‘Complete Public Law text cases and materials’, (4th ed OUP 2019) 112.

[3] Webley L & Samuels H, ‘Complete Public Law text cases and materials’, (4th ed OUP 2019) 111.

[4] Courts and Tribunals Judiciary, (2020). ‘Constitutional Reform Act 2005’ [online] < https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/constitutional-reform/> accessed 22 July 2020.

[5] McGonnell v United Kingdom [2000] 30 EHRR 289.

[6] V v United Kingdom [19991] 30 EHRR 121.

[7] Baron de Montesquieu, ‘The Spirit of the Laws [De l’Esprit des Lois], (6th ed 1748) 147.

[8] Webley L & Samuels H, ‘Complete Public Law text cases and materials’, (4th ed OUP 2019) 119.

[9] Rodney Brazier, ‘Constitutional practice: The Foundations of British Constitution’, (3rd ed, Oxford University Press 1999) 119.

[10] Ryan Mark and Steve Foster, Unlocking Constitutional and Administrative Law, (4 ed, Taylor & Francis Group 2018) 275.

[11] Parpworth N, ‘Constitutional & Administrative Law’, (10th ed, Oxford University Press 2018) 67.

[12] Parliament Act 1911

[13] n 11, 70.

[14] Ryan Mark and Steve Foster, Unlocking Constitutional and Administrative Law, (4 ed, Taylor & Francis Group 2018) 169.

[15] R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (SC).

[16] European Union Act 2017.

[17] R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513.

[18] R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 630 HL.

[19] Taylor C, ‘Constitutional and Administrative Law’, (6th ed Pearson Education Limited 2019) 50.

[20] Public Law Project, ‘An Introduction to Judicial Review’ [Online] accessed 23 July 2020.

[21] Attorney General v Fulham Corporation [1921] 1 Ch 440 (CH).