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The Separation of Powers: where to draw the line on judicial engagement with the Government

Andrew Eaton

Andrew Eaton,

London

Telha Arshad

16 June 2015
The independence of the judiciary and the separation of powers are fundamental principles of constitutional government intended to ensure that the proper functioning of each of the separate branches of state (the executive, legislature and the judiciary) acts as a check and balance against the exercise of power by the other branches. How this doctrine functions in practice in the UK has been the subject of considerable reform in the past decade and has recently been considered by two senior figures in the judiciary, as this blog explains.

Historically, the constitution of the United Kingdom has functioned without an absolute separation of the branches of state. For example, members of the executive branch, the ministers of Her Majesty's Government, also sit as Members of Parliament in the House of Commons and, until 2005, the highest judicial court in the UK also sat in the upper house of the Houses of Parliament, the House of Lords.

The Constitutional Reform Act 2005 ("CRA 2005ˮ) sought to address concerns about the need to strengthen the separation of powers and guarantee the institutional independence of the judiciary. According to a consultation paper published in 2003 by the Department for Constitutional Affairs, the purpose of the CRA 2005 was to "redraw the relationship between the judiciary and the other branches of government" and to put it on a "modern footing". Significantly, the CRA 2005 established an independent Supreme Court to take over the judicial role of the House of Lords, removed the role of head of the judiciary from the office of Lord Chancellor and created a new Judicial Appointments Commission to replace the old system whereby the Queen would appoint judges on the advice of the Lord Chancellor.

Sections 5 and 7 of the CRA 2005 established a new framework for engagement between the judiciary and the other branches of state by enabling the Lord Chief Justice to make written representations to Parliament and represent the views of the judiciary to the Lord Chancellor and Ministers of the Crown more generally. As the Government itself recognised when enacting the CRA 2005, upholding the separation of powers is of fundamental importance, not least in order to ensure the UK's compliance with Article 6 of the European Convention on Human Rights (the right to a fair trial). There are therefore obvious concerns about achieving an appropriate level of engagement between the judiciary and the other branches of state so as not to unduly expand the role of the courts in the UK constitution.

In a lecture at the Institute for Government in December 2014, Lord Thomas, the incumbent Lord Chief Justice, discussed the implications of the CRA 2005 since its enactment. He lamented that prior to 2005 and thereafter, relationships between the judiciary and the other branches of the state had "continued progressively to diverge". He took the view that this was not beneficial and that, when adequate limitations were placed on it, engagement by the judiciary with Parliament and the executive was not incompatible with the separation of powers. In fact, he argued that "independence of the judiciary, far from precluding relationships with the other two branches of the state, requires engagement with both". Lord Thomas announced that guidance would be produced in 2015 on the appropriate approach of the judiciary in advising government on legislative proposals and draft bills.

In considering the correct approach to be taken, Lord Thomas drew a crucial distinction between (a) engagement in the form of technical and procedural advice on the administration of justice, which he saw as both constitutionally appropriate and beneficial, and (b) engagement about policy that oversteps the proper constitutional boundaries, such as advice on the constitutionality of legislation or its compatibility with Convention rights. He argued that, in respect of technical and procedural advice regarding the operation of law and the administration of justice, judicial input could be invaluable and would be informed by a wealth of experience. To support this, by analogy, he argued that it would be inconceivable for a ministerial department of the Government to advance policy proposals involving the spending of public money without having first consulted Her Majesty's Treasury. Lord Thomas further emphasised that the powers of the Lord Chief Justice to make representations reflecting the views of the judiciary to Parliament and Ministers should not be used as a "nuclear option" but rather as a necessary "part of the framework for engagement".

Lord Thomas' appetite for judicial engagement with the other branches of state is not shared by all however. In a speech published by the Government on 11 June 2015 , Lord Justice Beeston warned against "imperilling the constitutional fundamentals". Lord Justice Beeston argued that the boundaries of engagement between the branches of state can and should be made more certain. He noted that the guidance to be produced on engagement with the executive was likely to limit the government policy on which the judiciary could express views to that which "relates to or is likely to affect the operation of the courts" but that it was "notoriously difficult to pin down" a constitutional boundary between broad policy and operational policy. He identified some particular areas of concern. For example, he stated that it would not be appropriate for the judiciary to give advice to the executive in private or to intervene or comment while "a matter is being hotly debated in Parliament". Lord Justice Beeston also highlighted the "special sensitivity" about the involvement of judges in the drafting of a parliamentary bill who may later have to adjudicate on the resulting legislation. He concluded that "an incremental and cautious approach, leaving the opportunity to retreat if something does not work is likely to enable greater engagement without imperilling the constitutional fundamentals".

The promised guidance on the operation of sections 5 and 7 of the CRA 2005 have not yet been published and are expected later this year. In light of Lord Justice Beeston's recent comments, the balance struck may prove to be controversial in the eyes of other members of the judiciary.

Andrew Eaton

Andrew Eaton,

London

Telha Arshad

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