Judges - the separation of powers

The constitutional position of judges since the Constitutional Reform Act 2005.
Section 1 of the Act enshrines the Rule of Law and the independence of the judiciary	Section 1 of the Act says that the Act does not adversely affect- (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor's existing constitutional role in relation to that principle. This is the first time that the constitutional role of the judiciary is enshrined in statute and is a clear statement of the rule of law in the English Legal System. The independence of the judiciary and their function in the rule of law is further strengthened in Section 3, and in particular section 3(1) "The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary."
The Rule of Law	Some information on The Rule of Law is here. Exam Focus: Candidates are expected to have an appreciation of the principles which underlie the English Legal System, e.g. the rule of law, equality before the law, and freedom under the law.
Section 3 places controls on ministers	Section 3(1) creates a duty on government ministers to uphold the independence of the judiciary. They are specifically barred from trying to influence judicial decisions through any special access to judges.
Lord Chief Justice heads judiciary	The executive gave up its control of the judiciary, through the Lord Chancellor on 3 April 2006 under the provisions of the Constitutional Reform Act 2005.
Charles Clarke and the separation of powers From an interview in The New Statesman September 2005	Home Secretary Charles Clarke boasted a good relationship with Lord Woolf and Lord Phillips (Lord Chief Justices) his views on the law lords go beyond what is thought prudent. "I have been frustrated at the inability to have general conversations of principle with the law lords ... because of their sense of propriety. "I do find that frustrating. I have never met any of them. I think there is a view that it's not appropriate to meet in terms of their integrity. "I'm not sure I agree ... and I regret that. I think some dialogue between the senior judiciary and the executive would be beneficial, and finding a channel is quite important." Lord Bingham in a speech to the Law Society warned against any ministerial interference with judicial independence, adding that it would be the ultimate treason for any judge "to uphold as lawful that which is unlawful". Although Clarke supports this stance, his rebuke must be the sternest ever delivered by a home secretary to the most senior law lord. "As far as Lord Bingham is concerned, I'm sure he's entirely proper. "I was rather surprised, however, that he chose to speak to the Law Society and has not been prepared to talk to the Home Secretary about these matters. But that is a matter for his judgement."
The Constitutional position of judges is also found in:- The separation of powers
What powers are separated?	Executive = the administrative branch of government, includes ministers, the cabinet, civil servants, police and army. Legislature = the lawmakers, effectively parliament. Judiciary = the enforcers of the law, the judges, magistrates, tribunals, etc.
The overlap of powers	The overlap of powers allows Parliament to make any change it wishes by Act of Parliament and helps to insure against arbitrary exercise of power by, for example, ministers. There is not a lot of separation between the executive and the legislature but considerable separation between the judiciary and the other two branches.
John Locke, Two Treatises of Government	The doctrine of the separation of powers dates back to John Locke. Writing in 1690, he recognised that if the same person has the power to make laws and to execute them, they may exempt themselves from the laws they make and use the law to their own private advantage. He therefore argued that there should be a separate legislature and executive.
Montesquieu, L’Esprit des Lois	Montesquieu (1689–1755) developed the doctrine further. As well as recognising the dangers of overlapping legislative and executive functions, he warned of the dangers of failing properly to separate the judicial function from the others.
Walter Bagehot, The English Constitution	Interestingly, Montesquieu based his analysis on his understanding of the English Constitution. However, the 18th century British constitution did not (and does not now) observe a pure separation of powers, for instance because of the overlaps in personnel between the executive and legislature. Known as the fusion of powers, this overlap has been described as the “efficient secret” of our constitution, and distinguishes parliamentary from presidential systems.
Separation is impossible to achieve	There has been much debate over the years over the nature of separation of powers. In practice pure separation, ensuring no overlap in the personnel and functions in each of the three branches of state and no interference in the functions of the other branches, is impossible to achieve. All political systems exhibit greater or lesser degrees of partial separation, with checks and balances in place ensuring that power is not overly concentrated in one branch.
Rule of Law	Separation of powers is linked to the concept of the Rule of Law, which among other things aims to ensure that the judiciary can constrain the executive to working within the boundaries of its lawful authority (through judicial review). It is also linked to the principle of judicial independence.
In reality a partial fusion of powers	So, while the separation of powers remains an important concept in Britain, it is arguably more accurate to describe the system, because of the existence of Parliamentary sovereignty, as being based on a partial fusion of powers. This is particularly so because of the overlap between the executive and legislature, with the Government formed from, and accountable to, Parliament. The Prime Minister, for example, must by convention be a Member of the House of Commons and can effectively be removed from office by a simple majority vote of Parliament.
Exceptional role of the monarch	The Monarch also has a formal role in the fusion of the various arms of state: Legislature – it is with the Crown in Parliament that both legal and political sovereignty lies, with Parliament being both summoned and dissolved by The Queen. The Monarch must give her Royal Assent to all Bills so that they become Acts. Executive – on the recommendation of the Prime Minister, The Queen appoints all Ministers of Her Majesty’s Government, who govern in the name of the Crown. Judiciary – on the recommendation of the Prime Minister or the Lord Chancellor, The Queen appoints all senior judges, and all public prosecutions are brought in her name.
Exceptional role of the Lord Chancellor	There have, historically, been some specific examples of how distant the British system was from a simple version of Montesquieu’s separation of powers theory. The first has been the office of Lord Chancellor, who was simultaneously: a key member of the Government and a Cabinet Minister a senior judge and Head of the Judiciary, and Speaker of the House of Lords.
Exceptional role of the House of Lords	Another example concerns the dual role of the House of Lords, as second chamber of the legislature, and as the highest appeal court in the UK. The Law Lords (Lords of Appeal in Ordinary), whose primary function is to sit as judges in the Appellate Committee of the House of Lords, are also able to sit in the House of Lords in its legislative capacity. The Law Lords adopted a statement of principles in June 2000 restricting their ability to take part in debates.
Do we really have separation of powers?
The executive controls, and affects the legislature by creating peers	The permanent prerogative frequently used without Her permission. The executive decides on opening and closing (prorogation) of the legislature (parliament). The executive controls parliament’s timetable.
Part of the legislature form the executive	The government ministers sit in parliament.
The legislature controls the judiciary	It has the power to remove senior judges.
The executive (the' Lord Chancellor and Secretary of State for Justice') controls the judiciary	The Lord Chancellor can remove junior judges. The executive - the 'Lord Chancellor and Secretary of State for Justice' with the Prime Minister appoint law lords.
Interference with the judiciary	Lord Irvine of Lairg was sacked as Lord Chancellor by the Prime Minister in 2003 for standing up to the Home Secretary, David Blunkett, in defence of judicial independence, a “concordat” was agreed between Irvine’s successor, Lord Falconer of Thoroton, and the Lord Chief Justice, Lord Woolf.
The executive makes treaties, particularly in the EU	Which have legislative influence and some legislative force.
The judiciary undertake executive activities	As Coroners or magistrates, licensing, etc. More importantly judges head inquiries ordered by the executive, often to enquire into executive actions, for example the Hutton Inquiry. This inquiry was about the death of David Kelly but touched in no small part on the role and methods of government, the prime minister - Tony Blair - appeared as a witness.
'Lord Chancellor and Secretary of State for Justice' no longer holds three offices	The 'Lord Chancellor and Secretary of State for Justice' no longer sits as a judge, but is directly involved in judicial matters, he still sits in the executive and still sits as a legislator.
End of the role of the Lord Chancellor as a judge	The Act brings to an end the post of Lord Chancellor, transferring his judicial functions to President of the Courts of England and Wales. The Lord Chief Justice is now the President of the Courts of England and Wales. He is responsible for the training, guidance and deployment of judges. He also represents the views of the judiciary of England and Wales to Parliament and ministers.
The executive -the Home Secretary - is no longer involved in fixing life tariffs	For people serving life sentences, the tariff (the "minimum term") is the period they must serve in prison before they can be considered for release. From secretive process with tariffs being set by the Home Secretary sentences are now set in open court. Rulings such as the House of Lords decision that mandatory lifers have a right to know how long their tariff R v Secretary of State for the Home Department, Ex Parte Doody (1993), and partly as result of decisions of the European Court of Human Rights the tariff is now part of the normal sentencing process all newly convicted lifers to have their sentences set in open court. The Criminal Justice Act 2003 (schedule 22) finally ends political involvement in all life sentences altogether. All mandatory lifers can have their tariffs reset by a judge.
Evidence of separation.
Salaries and Judicial Review	The judiciary do not have their salary voted on by Parliament The judiciary reviews the activities of the executive. (Judicial Review) Paid judges cannot be in the Commons.
Judges and politics	Judges conventionally do not involve themselves in political disputes in the Lords. They do not sit as ministers by convention, and should not make party political statements, but do involve themselves in Royal Commissions in controversial areas.
Absence from bias	Common law provides that they should not sit in matters in which they have an interest - as in Re Pinochet 1998, and Dimes v Grand Junction Canal Proprietors 1852 where Lord Cottenham gave judgment in favour of the canal company, in which he held shares.
Not involved in inquiries	For example the collapse of the Jubilee Line Fraud trial was followed by an enquiry in which the judge who had played a central role in the case was not involved. This is a convention that reinforces separation. BBC report here
Not speaking in the House	Lords of Appeal in Ordinary are members of the House of Lords and can take part in its legislative and other debates. They rarely speak or vote except on legal matters, though Lord Goff sponsored as a private members' bill the Law Commission’s draft bill that became the Theft (Amendment) Act 1998. There have been other examples more recently. In return, although Members of Parliament sometimes criticise judicial decisions, they do not attack judges personally, and do not debate matters that are currently sub judice (before a judge).
Role of the Attorney and Solicitor General	The Attorney General, by statute, consents the prosecution for many and varied offences, a role he cannot relinquish. At the same time, it is claimed, decisions are made by Attorneys General without regard to political fallout and this has been the case for 500 years. Successive Attorneys have prided themselves on making decisions with their political hats off. However, Sir Patrick Hastings in 1924 was believed dropped a prosecution on Cabinet instructions the political fallout brought down the Labour Government of Ramsay Macdonald. The Attorney General Lord Goldsmith has receive opprobrium for his legal advice on the war in Iraq in 2004 and for his involvement in the "cash for peerages" inquiry.
Unrepresentative	For a judge to be representative, which is said to be desirable, they must be biased. Since representativeness implies the sharing of views, which in turn implies bias. But a biased judge is not desirable. Ergo a good judge is an unrepresentative judge.
The monarch
The fountain of justice	The monarch is in theory present in court, has prosecutions in her name, appoints judges and peers (who thus form part of the legislature) she also has grants all laws by giving her royal assent.
Armed forces	As part of the executive she heads the armed forces and in theory, appoints and dismisses ministers (but only the Prime Minister in person). The government is Her government.
	In times of war the Crown may requisition ships (as in the Falklands) and enter private land to repel invasion. She 'makes' all foreign treaties.
Parliament is the 'High Court of Parliament'
Tribunals	Are created by acts of Parliament and have both judicial and executive/administrative powers.
The judiciary makes laws	By deciding cases, although some allege they merely discover, or interpret parliament’s wishes.
The unanswerable question	"What would happen if there was a clash between parliamentary sovereignty and the rule of law?" is a question that cannot be answered.
The Director of Public Prosecutions can take over private prosecutions	Which is a quasi-judicial power.
Local Government has legislative and executive powers	Which are created by the executive in Parliament by Royal Charters.
Delegated legislation	The legislature grants the executive legislative powers by delegated legislation.
The executive appoints bishops	Who have legislative powers in the Lords.
Constitutional reform
Further discussion	As part of its programme for constitutional reform the government has published further discussion on the appointment of judges in the discussion document, The Governance of Britain: Judicial Appointments.
The Constitutional Reform Act 2005	Supreme Court (in the spring of 2008). The Act also establishes a new, independent Supreme Court, separate from the House of Lords with its own independent appointments system, its own staff and budget and, ultimately, its own building. The 12 judges of the Supreme Court will be known as Justices of the Supreme Court and will no longer be allowed to sit as members of the House of Lords. The current Law Lords will become the first 12 Justices of the Supreme Court, with Lord Bingham as President of the Supreme Court. Also here.