Separation of Powers
The separation of powers between institutions was a longstanding principle in constitutions worldwide. There should be three key independent entities within the state: the executive, the legislature, and the judiciary. The executive administers and enforces laws. The legislature is the lawmakers. The judiciary decides individual disputes in relation to the application of laws in individual circumstances.
The principle of separation goes back to ancient times. It is found in English constitutional history for 1000 years. By the time of Edward the 1st in the 13th century, there was a king’s council (the executive), parliament (the legislature), and the courts of law (the judiciary).
The separation of powers represents the systems of checks and balances to protect the liberty and security of citizens and subjects. The provision of power is critical to the equilibrium, and the concentration of powers in one institution of state poses the risk of abuse or misuse of powers. Each institution keeps the other in check and balance.
In fact, a pure separation of powers would lead to deadlock and unworkable government. The extent of separation of powers varies between different states. However, the broad principle is maintained in the United Kingdom.
The executive is responsible for the formulation of policy and legislation. It is also responsible for the execution and administration of those policies. The executive consists of the sovereign as the nominal head of the executive, prime minister, cabinet ministers, civil service, police, local authorities, and other public bodies.
The legislature comprises the queen and parliament and is the sovereign law-making body within the United Kingdom. In constitutional theory, parliament comprises the queen, the House of Lords, and the House of Commons. The queen’s role is nominal. Ordinances must be passed by each house and receive royal assent.
In common with most states internationally, there are two chambers within parliament: the House of Commons and the House of Lords. The House of Commons is directly elected with a maximum term of five years under the Parliament Act 1911. The House of Lords is not elected and is made up of hereditary peers and persons appointed as lords.
The role of the Lord Chancellor formerly straddled the three institutions of state. The office dated from almost 1000 years. Literally, the principal function of the chancellor was to preside over parliament. Since the 14th century, he has functions both parliamentary and judicial, presiding over the chancery court.
The Lord Chancellor was also a member of the cabinet appointed by the government. He was the speaker of the House of Lords and the hereditary judiciary. He was also entitled and did participate in judicial proceedings. He would not by convention participate in those involved in the government. He had a wide range of powers in relation to appointing judges. He also acted as a spokesperson for judges and defended their independence.
The Constitutional Reform Act formed the office to establish a clearer separation of powers between the executive, legislature, and judiciary. The office is retained, but his powers are significantly changed. The post is combined with that of the executive of state for constitutional affairs. The office holder must be qualified by experience but need not necessarily be a lawyer.
The House of Chancellor would have no future role in relation to judicial functions nor shall he be the speaker of the House of Lords. There is a duty on the Lord Chancellor and other ministers to uphold the continued independence of the judiciary.
The lord of chief justice, master of the rolls, vice chancellor, lords of appeal in ordinary, and lord justice of appeal are appointed by the queen. Prior to the Constitutional Reform Act 2005, the appointments were made in consultation with the prime minister, who in turn would have consulted the Lord Chancellor.
Appointments of the high court were made of candidates of 10 years’ experience as a barrister or solicitor with the right of audience with the high court or the circuit court of three years standing. Appointments for the court of appeal where candidates be of at least 10 years standing as a solicitor with rights of audience or barrister or member of the high court bench.
The Constitutional Reform Act established a judicial appointments commission with responsibility for recruitment and selection of judges in England and Wales. The commission reports to the Lord Chancellor, and the Lord Chancellor makes the appointment or recommendation for appointment by the queen.
The lord chief justice assumed the lord chancellor’s functions as head of the judiciary and became president of the courts of England and Wales. The lord of chief justice of England and Wales, the law of chief justice of Northern Ireland, and the lord president of the Court of Session in Scotland may make written representations to parliament on matters affecting the judiciary and administration of justice.
The Act of Settlement 1700 confirmed the rights of senior judges to security of tenure in their office during good behavior. This is repeated in the Supreme Court Act 1981. Judges may be removed by her majesty on an address presented by both houses of parliament.
Judges may be subject to compulsory retirement if they are incapacitated. Judges may be dismissed for misbehavior. The misbehavior must relate to the performance of the judge’s functions or commission of a criminal offense. This procedure has only been undertaken once in relation to an Irish judge in 1830, who was guilty of embezzlement of court monies.
Judicial salaries are directly charged on the consolidated fund. They are relatively high on the basis that the candidates must be of sufficient caliber.
Judges are immune from being sued for performance of their judicial functions provided that they act within their jurisdiction and honestly. Provided that he honestly believes that he is acting within the scope of his jurisdiction, the immunity applies. Equally, the grant itself is immune from liability for the conduct of persons charging additional functions vested in it.
Judges must not undertake the case in which they have a personal or financial interest or other connection by which they might be biased or might appear to be biased even the existence of potential bias such as an indirect financial interest in the company, which is such that a judge will generally excuse himself.
A judge must exercise strict impartiality in the exercise of his function. It is in no way swayed by his personal beliefs and should give effect to the values of the community as a whole rather than any section. A judge should act if there is an appearance of bias.
The Prime Minister and ministers of the crown must be members of the House of Parliament. The convention that the prime minister must be a member of the House of Commons. In the United Kingdom, the ministers and prime minister are members of parliament and accordingly members of the legislature.
In practice, there is a very close connection between the executive and the legislature. The executive generally controls the legislature through the party and whip system. However, the parliament holds the government responsible and can ultimately dismiss it.
The House of Commons Disqualification Act 1975 disqualifies certain persons from being members of parliament or holding parliamentary office. This includes judicial office holders, civil servants, members of the armed forces and police, foreign legislatures.
The legislation limits members of the government ministers to 95. Parliamentary private secretaries must dissolve some of the members of parliament.
The government may only continue for so long as it enjoys the support of the majority of seats in parliament. A prime minister who loses a vote of confidence may be forced to resign and call a general election. The reference be that it may be possible to have a new government formed without an election. The House of Lords may modify and delay non-money bills for up to a year under the Parliament Act 1911 and 1949.
For the apparent learning of members within the legislature and the executive is found in delegated legislation. Under legislation passed by parliament, ministers, governmental and non-governmental bodies may be given powers to make detailed rules to implement legislation. Approximately 50 acts of parliament are passed every year. However, some 3,000 statutory instruments are made annually.
There is limited parliamentary oversight of statutory instruments. It must exist power to annul a statutory instrument. However, delegated legislation is practical necessity in view of the complexity of modern circumstances and law.
By convention, the government and members of parliament do not criticize judges as such. There is provision for a motion into criticism or an address for the crown for removal of a judge. Members of parliament may from time to time comment on judicial matters that are in the public domain but they are subject to limitations imposed by the speaker, when civil proceedings are pending.