It may be asked, what then is the relevance of this doctrine to the United Kingdom, when it is clear that the British Constitution is characterised by the blending of the executive and the legislature? It is unusual, as a result of constitutional convention, for a member of the executive not to be a member of the legislature. Walter Bagehot in his classical work The English Constitution (1867) describes the constitution as displaying ‘the close union, the nearly complete fusion of the executive and legislative powers’ when describing the cabinet. However, the relevance of the concept of the separation of powers to the United Kingdom can only be appreciated when the contemporary doctrine is considered.
Under the modern day doctrine it is not required that the three institutions of government are isolated from each other in their entirety, such an arrangement would leave the state unable to function, particularly when the convention of Parliamentary Sovereignty is so highly prioritized in the British Constitution.
Democracy in the United Kingdom dictates that there must be sufficient interplay between each of the three institutions of the state. Although it is the responsibility of the executive to propose legislation, it is our democracy that restricts it from becoming law without approval from Parliament. Parliament holds the executive to account. Once passed into law, it is then the responsibility of the judiciary to uphold these Acts of parliament. Rather than a complete separation of powers, the contemporary doctrine suggests that the primary functions of the state be clearly allocated to separate branches and that these branches should not encroach significantly upon the function of the other. The United Kingdom can thus be described as having a mixed or balanced constitution; ultimately the Crown is present in all three institutions of government – the Queen in Parliament, Her Majesty’s ministers and Her Majesty’s judges. For example, the cabinet is chosen by and from the legislature, the amalgamation of the executive and the legislature and the answerability of the executive to the legislature, fundamental characteristics of the Westminster model of government, undermine the separation of powers because it is the likelihood that a government with a sufficient majority will control Parliament.
It is the office of the Lord Chancellor, however, that creates the greatest violation to the separation of powers and is a most noticeable exception to the doctrine. The Lord Chancellor was not only a member of the government and thus a member of the legislature, but also a member of the cabinet, the executive, whilst also heading the judiciary. Previous Lord Chancellors, such as Lord Hailsham, had active political careers before taking office. Lord Hailsham in fact, once ran for leadership of the conservative Party, but despite this, the Lord Chancellor was still selected by the Prime Minister. It is because these conflicting interests that by convention, the Chancellor will not preside over, or be judicially involved in, cases which directly involve the government or are of political nature.
The Lord Chancellor was responsible for important administrative functions in connection with the judiciary and law reforms, some of which were politically controversial, and this also adds significantly to the breach of the doctrine. The Lord Chancellor was also a judge and presided over the judicial committee in the House of Lords. This office also entitled him to sit in the upper chamber of the legislature, and act as the speaker of the House, performing a role of umpire and participant.
As head of the judiciary, he was instrumental in its appointments. On the advice of local advisory committees, the Chancellor was entitled to appoint Justices of the Peace (JPs), whilst High Court judges, circuit judges and recorders were appointed by the Crown on his advice.
As a member of the executive and the legislature, the Lord Chancellor’s roles not only violated the separation of powers in respect of his responsibilities for judicial appointments, but having helped administer the law, it was within his powers to then dismiss magistrates without showing cause, or circuit judges for incapacity and misbehaviour. According to the doctrine, it is fundamental to the liberty of an individual that these roles remain under different organs of the state and should not coincide with each other. As evident in the role of the Lord Chancellor; there was ample opportunity for bias to occur.
However, the Constitutional Reform Bill 2004 has done much to address the breaches of the separation of powers by the Lord Chancellor. With the abolition of the Lord Chancellor’s department, the Bill will introduce a new independent statutory Judicial Appointments Commission to take over his role in appointments so there will no longer be a conflict of interest, and his functions in relation to the Court Service will be taken over by the Lord Chief Justice and the Secretary of state for Constitutional Affairs in a newly created department. The Bill will also entitle the House of Lords to in future make its own arrangements for the appointment of a speaker in the House.
While adherence to the doctrine of the separation of powers would imply the disconnection of the judiciary and the legislature, it was not only the department of the Lord Chancellor that was found to be a violation of this concept. Lords of Appeal in Ordinary, also known as Law Lords, play an active role in the proceedings of the upper chamber of the legislature. Although they can only exercise limited powers on legislation as a result of the 1911 and 1949 Parliament Act, their purpose is to provide a second, non-political (hypothetically) opinion of scrutiny and revision, giving the government an opportunity to review and perhaps amend any recommendations. This in itself is an important role in democracy and governance; however, this legislative role would seem to contravene the independence of the judiciary.
The Constitutional Reform Bill seeks to redress this infringement. Like the House of Commons Disqualification Act 1975 which prohibits full time members of the judiciary from the House of Commons, the Bill also aims to maintain the independence of the judiciary. The Bill will abolish the appellate jurisdiction of the House of Lords and replace it with a Supreme Court of the United Kingdom. This will hear the appeal of any judgement from the Court of Appeal providing that permission has been granted from either the Court of Appeal or the Supreme Court. All other jurisdictions of the House of Lords will also be transferred to the Supreme Court.
Without the alterations to our constitution through the Constitutional Reform Bill 2004, it is fair to question the relevance of the separation of powers to Westminster model of government. While there is certainly a degree of recognition and independence of the three institutions of the state, the overlap in functions between the executive, legislature and judiciary suggests that each institution functions primarily within its own boundaries, although none are restricted to these in their entirety. It is thus hard to cast doubt on the view of the Donoughmore Report on Ministers’ Powers in 1932 that the doctrine of the separation of powers is no more than ‘a rule of political wisdom which must give way when sound reasons of public policy so require’.
The Constitutional Reform Bill 2004 has, however, endeavoured to rectify the infringements to the doctrine currently apparent in the British constitution, but although provisions have been made for those areas most frequently cited as a violation to the doctrine, it is still a fundamental part of the British constitution that democracy dictates the interlink and close connection between the executive and legislature. Whilst the cabinet continues to be selected from the legislature and the legislature holds the cabinet to account, I feel the question of the separation of powers being myth or reality can still be legitimately posed. Once the Constitutional Reform Bill 2004 has received Royal Assent a lot of the doubt cast over this doctrine will be relieved, however, it is not until the doctrine can be objectively defined, rather than taken from speculative opinions, that there will be no further need to question it according to the United Kingdom constitution.