Separation of Powers

Mixed government -->

• major interests in society must jointly take part in functions of government
• power shared between different groups (e.g. Lords and Commons)

Locke

• legislative as supreme power with all others subordinate
• executive = supreme executor of law
• doesn't exclude possibility that powers can be exercised by same body or person
• judicial power not mentioned (consiered as general attribute of state)

Montesquieu

• key to political liberty in ENG lies in separation of legislative, exec and judicial power
• error --> worked not because of separation but because entire govt was in hands of landed class

Blackstone --> each part is a check/balance on the others 

3 branches

• legislative (rule-making)
• executive (rule-applying)
• judiciary (rule-interpretation)

Behind the concept is proposition that there are different kinds of public function that:

• ought to be distinguished from each other
• ought either to be exercised by different institutions or personnel, or somehow 'balanced' to prevent an overconcentration ofpower in hands of single person/institution

Objective of each branch as check on others to ensure no single group of people can control machinery of State

Agencies

• each branch of government must be confined to exercise of its own function
• each branch must not be allowed to encroach upon the functions of the other branches

Persons

• persons who compose these three agencies of government must be kept separate and distinct 
• no individual is allowed to be at he same time a member of more than one branch

The 'Balanced Constitution' --> mixed constitution changes to this --> system of checks and balances which presupposes a degree of separation

Bagehot, The English Constitution (1867) --> 2 obsolete doctrines dominate Englihs constitutional through --> mixed govt and separation of powers

Erosion of balances 

• royal suspending or dispensing power abrogated by Glorious Revolution
• loss of monarchical power of veto
• rise of democracy
• HL veto lost (Parliament Acts)
• 'elective dictatorship'?

Contemporary issues

• Is separation of powers now the only basis of constitutional government?
• Committee on Ministers' Powers (1929) --> merely a rule of political wisdom
• HRA --> ECHR Art 6 --> trial must be by an independent and impartial tribunal --> judiciary?

Lord Chancellor

• exec, legis, and jud functions
• Head of LC Dept, Speaker of HL, head of judiciary

CRA 2005

• no long head of judiciary and cannot sit as judge
• priniple role now = head of Ministry of Justice

Judicial Appointments Commission (independent of govt)

Established Supreme Court

Can members of Parliament be judges?

• MPs and peery not eligible to serve as full-time members of judiciary or vice versa
• no prohibition on MPs or peers holding part-time judicial appointments
• in E&W several MPs sit as magistrates

Can judges participate in legislative process?

• until 2009, senior judges conferred with peerage entitled to sit and vote during HL leg work
• example of difficulties = vote on Hunting Act then unable to sit in Jackson case
• transfer of HL judicial business to UKSC and consequential statutory disqualification of judges of SC from participating in work of Parliament ended this
• judges do still have an interest in leg and from tim eto time do make suggestions for reform 
• formal role in making delegated leg about court procedures (SC)

Statutory duty of ministers to uphold independence of judiciary and role of LC (minister) in defending that independence

Can MPs discuss judges and judgments?

• sub judice rule --> MPs should not bring up in debates, question or motions cases that are pending or being heard in court
• MPs expected to be careful in any criticisms they make of judges/judgments
• not to say MPs can't inquire into how courts interpret and apply leg
• parliamentary investigations into how courts are handling legislation may become more frequent in future as procedures for post-legislative scrutiny are put in place

What is the role of executive in Parliament?

• no separation between legislature and executive --> ministers required to be MPs
• justified as enabling Parliament to hold ministers to account
• danger that MPs who are ministers dominate work of Parliament --> especially so in relation to legislative process
• role of UK Parliament = largely reactive --> role to scrutinise and approve proposals from government
• some limited legal constrains on exec --> cap on total number of MPs who are ministers; certain groups disqualified from being MPs; except for ministers general prohibition on MP 'holding an office or place of profit under the Crown