In X Ltd V. Morgan Grampian Publishers Ltd [1990] 2 All er 1 at 13

Lord Bridge seemed to have had the notion of checks and balances in

mind when he referred to the ‘twin foundations’ of the rule of law

namely ‘the sovereignty of the Queen in Parliament in making the law

and the sovereignty of the Queen’s courts in interpreting and applying

the law.’ Sir Stephen Sedley referred to the ‘discrete though inter-

dependent’ dual sovereignty between Parliament and the courts, each

respecting the functions of the other (Nolan, 1997, p. 26).

R v. Secretary of State for the Home Department ex parte Fire

Brigade’s Union (1995) illustrated judicial disagreement between differ-

ent versions of the separation of powers. The Criminal Justice Act

1988 provided a compensation scheme for the victims of crime. How-

ever, the Act was only to come into force on a day appointed by the

Home Secretary. Claiming to act under the royal prerogative the Home

Secretary introduced his own cheaper non-statutory scheme and did

not arrange to bring the 1988 Act into force. A majority of the House of

Lords, applying the checks and balances approach, held the minister

had acted unlawfully by disabling himself from keeping under review,

as required by Parliament, the decision to bring the Act into force.

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Constitutionalism: The Rule of Law and the Separation of Powers

However Lords Keith and Mustill (dissenting) took the view that the

matter was a political one for which the minister should be held

responsible to Parliament rather than the courts. The dissenters were

apparently upholding the separation of powers in its functional sense.

This was a question of lawmaking in respect of the minister’s duty was

only to Parliament. In R v. H.M. Treasury ex parte Smedley (1995),

the ‘checks and balances’ separation between the executive and the

judiciary was regarded as a matter of constitutional convention. The

court deferred to Parliament, not by refusing to intervene where a

government draft order giving effect to an EC treaty was alleged to be

invalid, but by not making an enforceable order. (See also R v. Secre-

tary of State for Health ex parte Imperial Tobacco Ltd (2000); – interim

injunctions refused against an allegedly invalid EC ban on tobacco

advertising because of deference to EC policy (Laws LJ dissenting).

These cases suggest that, while the separation of powers does not

provide a grand constitutional framework, the doctrine has influence

on a pragmatic level in particular contexts.

Some modern commentators have concluded that the separation of

powers as such has little significance today. This is partly because the

legislature is dominated by the executive and partly because it is

claimed that the concept has little meaning, being used as an umbrella

for different and conflicting ideas (see Marshall, 1971). Others have

identified important separation of powers aspects in the UK constitu-

tion (see Allan, 2001; Munro, 1999, ch. 9; Barendt, 1998).

As often is the case the truth may lie in the middle. In the UK we do

have three bodies with broadly different functions and our arrange-

ments are certainly influenced by the separation of powers. Parliament

is the legislature with the roles of making law and controlling the

executive. The executive is the Crown which manages the resources of

the state, implements and enforces the law, develops policy, conducts

foreign affairs and is the last resort in an emergency. The judiciary is

independent of both Parliament and the executive in relation to par-

ticular disputes before it.

On the other hand the UK constitution has no conscious design

based on the separation of powers. Historically all three branches of

government originated with the monarch, and this remains the case

in strict theory today. There is substantial overlap of personnel and

function between the three branches and our checks and balances

are unsystematic. For this reason the Wakehan Commission (2000) was

content to leave the status quo in place of the highest appellate tribunal

being part of the legislature apparently thinking it unnecessary

110 General Principles of Constitutional and Administrative Law

to examine the merits of the matter. In the following sections I shall

sketch the main examples.

5.7.3 Separation of function

It is possible broadly to identify the separate functions of lawmaking,

administering and judging and to ensure that each is carried out only by

the proper body according to an appropriate procedure. For example,

according to the assumptions of a liberal democracy, judging requires

that the parties before the court are treated equally, and have an

adequate right to present their cases before an impartial tribunal. The

judiciary resolves particular disputes brought to them by others but

cannot initiate policy nor, strictly speaking give general advice un-

related to a case before them. Lawmaking requires that the lawmaker

be chosen and removed by the people and should deliberate in public.

The executive function requires subordination to general rules made

by the legislature.

It is widely accepted that a rigid distinction of function between the

three branches is not practicable in contemporary society. This is by

virtue of the amount and complexity of business that governments

are expected to handle. For example, the executive branch contains the

expertise of government. It is commonplace for modern legislatures

to delegate power to the executive both to exercise wide discretion in

individual cases and to make detailed laws such as land use planning,

traffic and public health regulations of the kind necessary in a complex

society. These are known as delegated or subordinate legislation. If we

wish the legislature to represent the community in the determination of

the most important matters it would be impossible for it to produce all

the laws required to run the country efficiently or to react flexibly to

unforeseen events. Moreover even primary legislation is usually pre-

pared and proposed by the executive the legislature being essentially a

reactive and scrutiny body.

Moreover the common law system requires judges to make law in

contexts where Parliament has not done so. It is also sometimes con-

venient and relatively cheap for the executive to exercise the judicial

function of resolving disputes, concerning for example the allocation

of resources which closely affect government policy. Here the matter is

more doubtful in that confidence in the judicial process depends upon

the decision maker being seen to be impartial. Nevertheless the House

of Lords has recently upheld the practice of ministers determining

planning appeals as not violating the right to a fair trial under the

ECHR (R. (Alconbury) v. Secretary of State (2001)).

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Normally Parliament and the courts avoid interfering in each other’s

business. Cases in progress should not be discussed in Parliament

except in relation to matters of a national importance or the conduct of

ministers (see HC 214–I (1998–99)). Ministers do not answer questions

on legal matters. No reflection must be cast on a judge’s personal

character, competence or motives except on a substantive motion for

his dismissal, although backbenchers, but not ministers, may criticise

individual judgements. In relation to its own composition and inter-

nal affairs the House of Commons has exclusive power to decide

disputes and punish offenders and cannot be interfered with by the

ordinary courts.

Traditionally judges have not participated in public debate. How-

ever, in 1983 the Lord Chancellor relaxed the notorious ‘Kilmuir’

rules which restricted such participation and the matter is now left to

the discretion of the individual judge (see Brazier, 1994, pp. 283–4).

Judges are sometimes appointed to hold inquiries into matters of public

concern which may involve politically sensitive issues (such as Lord

Scarman’s Report into the Brixton Riots (1981 Cmnd. 8427) and the

Scott Report into Arms Sales (HC 115 (1995–6). It could be argued

that this places the judge in the political spotlight and so threatens

judicial independence (see Drewry, 1996).

There are other overlaps between judiciary and executive. Firstly

appellate judges are appointed on the advice of the prime minister and

other judges and magistrates by the Lord Chancellor, a member of the

executive. There is no mechanism for independent scrutiny of judicial

appointments such as exists in many countries. There appears to be a

process of private informal consultation involving mainly the sound-