Ing out of opinion within the legal profession (Judicial Appointments,

HMSO, 1990). Lay magistrates are appointed on the advice of local

advisory committees. Again the process is a secret one.

Secondly the Home Secretary has various powers to intervene in the

sentencing process of the criminal law. Sentencing itself is a classic

judicial function but originally the Home Secretary could order early

release on parole, and fix the ‘tariff’ (a period of punishment) of a

person serving a life sentence or, in the case of a child, detained ‘at her

majesty’s pleasure’. As a result of challenges made under the ECHR,

based on the right to a fair trial, most of these powers must now be

exercised by judges, and in relation to parole by the Home Secretary

must act on the recommendation of an independent parole board

(see Thynne v. UK (1991), Wynne v. UK (1995), T v. UK (2000), Crime

Sentences Act 1997 ss. 29 (1), 35 (2)). However, in the case of a manda-

tory life sentence it appears that executive discretion remain lawful

112 General Principles of Constitutional and Administrative Law

presumably because administrative discretion alleviates a punishment

already fixed rather than imposing a punishment (see R. (Anderson) v.

Secretary of State for the Home Dept (2001)). Again this topic reveals

the pragmatic nature of the separation of powers in English law.

5.7.4 Separation of personnel

The second aspect of the separation of powers is that of separation of

personnel. For example the US constitution has been particularly influ-

enced by Montesquieu. The president who forms the executive, and

Congress the legislature, are elected separately and the same persons

cannot be members of both (except that the vice-president is chair of

the Senate). The US constitution is designed to encourage conflict

between the two branches and regards weak government as desirable,

whereas the UK system is more interested in ensuring that the will of

the executive is carried out. The UK constitution does not embody a

separation of personnel except on a pragmatic and ad hoc basis, aris-

Ing, characteristically out of particular historical circumstances.

The UK constitution is less strict. The distinguishing element of the

parliamentary system in the UK is that by convention ministers must

also be members of Parliament, with a majority in the elected House

of Commons. Parliament indirectly chooses the executive in that by

convention it appoints the prime minister who appoints the other

ministers. Bagehot saw this as a fusion between executive and legisla-

ture which he regarded as the driving force of the constitution enab-

ling a strong government to get its way but allowed the people to get rid

of a bad government readily in that both depend on the same elec-

torate. Thus the checks and balances perspective may call for the viola-

tion of the separation of personnel. There is, however, some separation

between executive and legislature. No more than 95 ministers can

be members of the Commons (House of Commons (Disqualification)

Act 1975 s. 2 (1)), thus preventing the government from packing the

Commons with sycophants. Moreover, certain kinds of official (civil

servants, police, regulators, members of the armed forces, etc.) cannot

be members of the Commons (ibid., s. 1).

The judiciary has a stronger but still incomplete separation of

personnel. The Appellate Committee of the House of Lords is a

committee of Parliament, thus violating the separation of powers.

Under the Judicature Act 1873, Gladstone’s Liberal administration

abolished the judicial functions of the Lords in favour of a final court of

appeal. However, Disraeli’s Conservative government quickly restored

the Law Lords, apparently as a political ploy to counterbalance the

113

Constitutionalism: The Rule of Law and the Separation of Powers

influence of the bishops in the Lords (Appellate Jurisdiction Act 1873).

There are up to 11 Lords of Appeal in Ordinary appointed on the

advice of the prime minister. By convention only these and other peers

who hold or who have held high judicial office are eligible to sit on

the Appellate Committee. The Law Lords can, however, participate in

the legislative business and debates in the House. It is arguable that the

dual role of the Law Lords as judges and legislators violates Art. 6 of

the European Convention on Human Rights which confers a right to a

fair and public hearing by an independent and impartial tribunal

established by law.

The Lord Chancellor is often described as a walking contradiction

of the separation of powers. The Lord Chancellor is appointed by the

prime minister and has no security of tenure. He is a member of the

cabinet and heads the executive department dealing with the court

system, thus being responsible for judicial appointments and promo-

tions. The Lord Chancellor also presides over the House of Lords but

unlike the Speaker of the Commons has no disciplinary powers. The

Lord Chancellor is also a member of the Appellate Committee of the

House of Lords.

The Lord Chancellor therefore has to balance executive and judi-

cial interests. There is a threat to judicial independence in certain of

the Lord Chancellor’s functions. These include his control over the

administrative and financial aspects of the courts, his power to dismiss

magistrates and other lower court judges and his powers to regulate

legal education and rights of audience in the courts (see Courts and

Legal Services Act 1990; Access to Justice Act 1999). It could be

argued that, where the Lord Chancellor sits as a judge the right to a

fair trial under the Human Rights Act 1998 is compromised (see

McGonnell v. UK (2000): Bailiff of Guernsey). However, it might be

counter- argued that a fair trial is threatened only if the influence

relates to the particular case. It has also been suggested that judicial