The doctrine of the separation of powers suggests that the principal institutions of the state should be distinguished from each other and be exercised by different personnel in order to safeguard the liberties and guard against autocracy. According to a strict interpretation, there should be a complete separation of the three branches of the states- executive, legislative and judiciary. Although this doctrine plays a fundamental role in the British constitution, in practice, some functions are shared between the institutions in the UK. Pressure for root reforms was built up, therefore the Constitutional Reform Act 2005 (CRA) was introduced by the government and Parliament. Under the provision of the Act, several significant institutional changes had been made. This paper is going to explain and evaluate the impacts of the CRA in a line of the doctrine of the separation of power in the UK.
Separation of powers is an ideal form of government first developed in Ancient Greece. It was first stated in De l’Esprit des Loix (The Spirit of the Laws) by Montesquieu (1748), a French political philosopher. The government will result in disorder if the legislative power and executive power are both controlled by the same person. The judiciary power must be separated from the legislative power and executive power, otherwise, a despotic rule will occur under the oppression of the judge. The Doctrine of Separation of Powers proposed the independence of the three powers. However, it is not the exact case in the UK. In fact, the power of the government, Parliament and courts are closely associated.
Prior to the introduction of CRA, the highest court in the UK – Appellate Committee of the House of Lords- operated as a committee of one of the House of Parliament. That means that the highest court of appeal in the UK was in the House of Lords. The professional judges took part in the legislative and scrutiny works when they were not sitting as a judge. The Lord Chancellor, who was a government minister, also was the speaker of the House of Lords and the head of the Judiciary. It was very controversial as this was seen as a confliction of separation of power in the way of being incompatible with the independence of judiciary. Indeed, according to the Article 6 (paragraph 1) of the European Convention on Human Rights, judicial officer, having legislative or executive power, is likely not to be considered sufficiently impartial to provide a fair trial. There was a strong call for the separation between legislative and judiciary.
The role of the Lord Chancellor was modified. The CRA changed the position of the Lord Chancellor by abolishing its role as the speaker of the House of Lords and the head of the Judiciary. Instead, the President of the High Court, Court of Appeal and Crown Court of England and Wales, which was the former role of Lord Chancellor, was replaced by Lord Chief Justice. Now, Lord Chief Justice is regard to represent the views of judiciary of England and Wales and to maintain arrangements for the welfare, training and guidance of the judiciary and the deployment of judges and the allocation of work within the courts. The power of Lord Chancellor that used to exercise as a holder of senior judicial office was totally abstracted from the role of administering the machinery of justice as a member of the government. Furthermore, a statutory duty is imposed on Lord Chancellor. As section 3 of CRA entitles, the Lord Chancellor is responsible to upheld and defend the judicial independence. There is the need for Lord Chancellor to support the judiciary to exercise their functions, and the need for Lord Chancellor to represent the public interest in matters relating to the judiciary and the administration of justice.
It was essential for Lord Chancellor to ensure the principle of judicial independence not to be violated. There are two aspects that Lord Chancellor can defend for the judicial independence in relating to the separation of powers. First, ‘where there is an attempt by the government to restrict the jurisdiction of the courts’, Lord Chancellor should point out acts to Cabinet that would weaken the judiciary independence. Second, Lord Chancellor should deal with ministers who attack individual judges as judges should not be affected to make their judgements and no pressure should be received after judgements were made. However, challenge toward the substantiality of the role of Lord Chancellor arises. Except from positive duty, negative duty was imposed to Lord Chancellor as well. Section 3(5) requires Lord Chancellor and other Minister not to seek to influence particular judicial decision through any special access to the judiciary. The question is: does it go far enough? In practice, when the courts are facing attacks after the ruling on Brexit appeal, Lord Chancellor only put out a three-line statement saying the judiciary was independent and impartial. It seems that the defence for judicial independence is not enough.
Under the CRA, the Law Lords stayed in the both legislature and acting as the highest appeal court in UK until 2009. An independent Supreme Court was established to take over the judicial role of the House of Lords. There is a strong evidence showing that there is a desire to regulate the judicial independence by drawing a clear line between the judiciary, Parliament and the executive. It is supported by Lord Falconer as he raised that it was the time for UK’s highest court to move out from under the shadow of the legislature and achieve a full and transparent between the judiciary and the legislature.
Prima facie, it would be effective to remove the judges from political arena when the UK Supreme court is both physically and institutionally separate from Parliament. The Court has its own building, which is on the other side of Parliament Square, no longer sits in the Palace of Westminster. Justices of the Supreme Court can no longer sit or vote in the upper house. It satisfies the pure theory of separation of power, where a strict delineation of functions of the state is achieved. Nevertheless, there are criticism towards the possibility of politicisation of the judges. D. Woodhouse suggests that the establishment of Supreme Court would not neutralise or depoliticise the judges. Instead, Supreme court would be perceived as more political than the House of Lord. Senior judges would be seen as political actor as the intuitional independence increases.
While we consider the Supreme court is physically isolated from the Parliament, in presence, it is not financially isolated. Judiciary is still dependent on the funding from the executive in the form of Ministry of Justice. Lord Phillips had argued that “this arrangement clearly does not provide the security of funding which had been envisaged by Parliament and risks the Court being subject to the kind of annual negotiations the arrangements were intended to avoid’’. He suggested that this financial dependence was “already leading to a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire” . It would be too arbitrary to claim that Supreme Court is financially controlled by the Parliament but there is a huge concern that the judicial independence on the funding is not secured.