Under the doctrine of separation of powers, the governance of a state is traditionally divided into three branches each with separate and independent powers and responsibilities: an executive, a legislature and a judiciary. The distribution of power in this way is intended to prevent any one branch or person from being supreme and to introduce ‘checks and balances’ through which one branch may limit another. According to a strict interpretation of the separation of powers, none of the three branches may exercise the power of the other, nor should any person be a member of more than one of the branches.
In practice, however, many countries do not aim for a strict separation of powers, but opt for a compromise, where some functions are shared between the institutions of state. This is the case in the United Kingdom.
In the UK, the executive comprises the Crown and the UK Government, including the Prime Minister and Cabinet Ministers. The executive formulates and implements policy. The legislature, Parliament, comprises the Crown, the House of Commons and the House of Lords. The judiciary comprises the judges in the courts of law, those who hold judicial office in tribunals and the lay magistrates who staff the Magistrates’ Courts. Senior judicial appointments are made by the Crown.
Separation of the executive and the legislature
In the UK, and other common law jurisdictions, the executive and legislature are closely entwined. The Prime Minister and a majority of his or her ministers are Members of Parliament and sit in the House of Commons (the Prime Minister usually being both head of the executive branch and leader of the majority party in the legislature). In addition, Parliament may delegate law-making powers to the Government through powers to make subordinate legislation.
Although in the UK/common law system the legislature and executive are not kept strictly separate, the executive’s presence in the legislature is made subject to scrutiny with Ministers regularly appearing before and being required to answer the questions of Members of Parliament.
Separation of the legislature and the judiciary
In cases before the courts judges are required to interpret legislation in line with the intention of Parliament. Judges can be influential in the way they interpret and apply legislation but they may not challenge the validity of an Act of Parliament unless it is in breach of European law. They may declare an Act of Parliament to be incompatible with the European Convention of Human Rights but may not strike it down for this reason. Senior judges have, however, recently suggested that there may be limits to Parliament’s sovereignty, and that they may not be obliged to apply an Act of Parliament which breaches a fundamental constitutional principle, such as the rule of law.
Although judges are responsible for the development of the common law, Parliament may legislate to overturn or modify the common law, thus overriding the judge made law.
Judges in the senior courts have life tenure, which protects their independence. A resolution of both Houses of Parliament is needed to remove a High Court judge from office, while judges at the lower levels can only be removed after disciplinary proceedings. Judges are prohibited from standing for election to Parliament.
Article 9 of the Bill of Rights 1688 establishes the principle of Parliamentary privilege allowing Members of Parliament complete freedom of speech and debate without the threat of action in the courts (for example for libel). On the other hand there is a convention that Members of Parliament will not criticise judicial decisions, and the rule of ‘sub judice’ (under judgment) prohibits Parliamentary interference in cases currently before the courts.
Separation of the executive and the judiciary
The judiciary exercises scrutiny over the executive by ensuring that the executive acts within its powers. This involves ensuring that the executive only acts where it has the power to do so, and that it exercises its powers in accordance with the law. This judicial scrutiny extends to checking that any legislative acts carried out by the executive (that is, the making of subordinate legislation) are within the scope of the powers delegated by Parliament. The courts can therefore question the lawfulness of actions by public bodies, including government Ministers, and this is done through a procedure known as judicial review. This role of the judiciary highlights why it is so important for judges to be independent of the influence of the executive.
Constitutional Reform Act 2005
Important steps were taken in 2005 to create a greater degree of separation between the judiciary, executive and legislature.
Before 2005, the office of Lord Chancellor crossed the institutions of the state, with a role in the judiciary, the executive and the legislature. The Lord Chancellor was head of the judiciary with responsibility for the appointment of judges, a member of the Cabinet and Speaker of the House of Lords. This was seen as problematic in the context of the doctrine of separation of powers.
This was amongst the concerns which led to the Constitutional Reform Act 2005. The Act made significant changes to the relationships between the judiciary, the executive and the legislature, including:
- placing a duty on government Ministers to uphold the independence of the judiciary, barring them from trying to influence judicial decisions through any special access to judges;
- reform of the post of Lord Chancellor, transferring the judicial functions of the post to the President of the Courts of England and Wales – a new title given to the Lord Chief Justice who is now responsible for the training, guidance and deployment of judges and representing the views of the judiciary of England and Wales to Parliament and Ministers;
- the establishment of an independent Supreme Court, separate from the House of Lords, with its own independent appointments system, staff, budget and building;
- the creation of an independent Judicial Appointments Commission, responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice. The Judicial Appointments Commission ensures that merit remains the sole criterion for appointment and that the appointments system is modern, open and transparent.
At the same time it was also decided that the Lord Chancellor would no longer sit as the speaker in the House of Lords, and so the House of Lords now elects its own speaker.
The branches of government in Wales
Despite public familiarity with an executive that is closely intertwined with a legislature (the UK Government and Parliament), the establishment of the National Assembly for Wales as a single body incorporating an executive and (limited) legislature led to considerable confusion. In the early years of devolution many struggled to differentiate between those who exercised power (the cabinet of Ministers appointed by the First Minister as leader of the main political party in the National Assembly) and the National Assembly itself as an institution.
Although a system of delegations of power from the National Assembly to the First Minister and from the First Minister to other Ministers and staff was put in place reflecting a traditional division between an executive and legislature, in practice this system proved difficult to understand and operate.
The creation of a separate Welsh Government and National Assembly for Wales by way of the Government of Wales Act 2006 (GOWA 2006) meant a more conventional and familiar system was formally put in place. As is the case in both Scotland and Northern Ireland (and many other countries around the world), there are now two legislatures and two executives governing Wales. Notwithstanding the devolution of power, Parliament continues to be able to legislate on any matter in relation to Wales, whereas the competence of the National Assembly is determined by the subject areas set out in Schedule 7 to GOWA 2006. Parliament will not, however, normally make legislation for Wales on matters within the competence of the National Assembly unless the National Assembly has consented to that. The division of executive functions between UK and Welsh Ministers is also based on those subjects but it does not always correspond exactly to the legislative competence.
In Wales (and Scotland and Northern Ireland) the relationship between the judiciary and the legislature differs from the relationship between the judiciary and the UK Parliament. The courts (by virtue of provisions made by Parliament) may strike down Assembly Acts if they are incompatible with European law or the European Convention Rights set out in the Human Rights Act 1998. Unlike in Scotland and Northern Ireland, and probably uniquely, there are two legislatures for Wales but only one legal jurisdiction (England and Wales), and therefore one judiciary. This single judiciary, therefore, interprets and applies the legislation made for Wales both by the UK Parliament and the National Assembly.