Explaining the Doctrine of Separation of Powers

The Constitutional Reform Act 2005 was passed by the UK Parliament in 2005, and it had the main functions of creating a Supreme Court of the United Kingdom, reforming the office of Lord Chancellor, and regulating the appointment of judges. It can be argued that the Act in question was needed to adapt the Constitution of the United Kingdom to the requirements of the European Convention of Human Rights, which was incorporated into UK law by the Human Rights Act 1998.

Explain the doctrine of separation of powers in the UK constitution, how that doctrine was effectively applied, and what changes the Constitutional Reform Act 2005 would bring to the previous scenario. Also mention the relevance of the European Convention of Human Rights in the decision to pass the Act.

Although the United Kingdom is commonly described as having no written constitution, the country has a de facto constitution based on numerous written statutes, judgements and treaties. Over the past two decades, the potency of this constitution has been challenged – to an extent – by the increasing influence of European Union legislation in UK affairs, and the need to incorporate large swathes of EU laws and statutes has led, in many cases, to the need to formalise elements of the UK constitution that previously existed primarily across two or more separate written elements. In particular, the European Convention of Human Rights and the subsequent Human Rights Act 1998 showed that it was necessary to formalise certain rights within the framework of the British constitution, and the ramifications of the resultant changes have been huge. In particular, the establishment in October 2009 of the Supreme Court of the United Kingdom under Part 3 of the Constitutional Reform Act 2005 represented a major shift in terms of the enactment of the doctrine of separation of powers, and was designed to bring UK legislation in line with Article 1 of the European Convention of Human Rights, which confirms a signatory state’s duty to conform to all, not just some, of the Convention’s articles. While it can certainly be argued that the UK already operated under a principle of separation of powers, some critics argued that this was not reflected in the apparatus of the three key estates, and that the resultant uncertainty undermined the UK’s claim to be fulfilling all the criteria required under the Convention. Consequently, the adoption of the Human Rights Act 1998 – as part of the UK’s push to fully implement the Convention – represents one of the most fundamental root and branch reforms of the UK’s constitutional powers for a number of generations.

The doctrine of separation of powers is a key part of the United Kingdom’s constitution, and the strengthening of this doctrine was at the heart of the passage of the Constitutional Reform Act 2005. Although the United Kingdom has long implemented the separation of the state into three separate estates – the executive, the legislature, and the judiciary – this arrangement was heavily criticised during the 1980’s and 1990’s as “at best a weak separation of powers… (and) at worst a separation in name only” (Brazier, 2008, p. 108). Key to this criticism was the suggestion that both the judiciary and the executive formed a subset of the legislature, and that this inculcated a hierarchical relationship between estate that, under traditional separation of power rules, should have been separate but equal. For example, under the previous arrangement, the Law Lords – the highest judiciary figures in the country – were members of the House of Lords, i.e. they existed within both the legislature and the judiciary, thereby potentially undermining the independence of both estates. Furthermore, the Prime Minister of the United Kingdom, although now traditionally a member of the House of Commons, can still theoretically be a member of the House of Lords, thereby muddying the distinction between the judicial-legislative side of the country’s constitution on one hand, and the executive on another. Although this arrangement was for many years managed in such a way as to avoid complications arising from lack of total separation of powers, via a system that effectively mimicked such a separation without intrinsically representing it, many criticised the lack of consistency between the democratic ideals espoused by successive governments and the (arguably) unnecessarily complex influences that could be at play between the three estates. As Peter Wickham points out, the Constitutional Reform Act 2005, via the establishment of the new United Kingdom Supreme Court, “ensures true separation of powers. It buttresses judicial independence while offering the possibility of a more accountable executive” (Wickham, 2009); this was achieved by separating the Law Lords into a new role as Lords of Appeal in Ordinary, Justices of the Supreme Court until their retirement, at which point they would return to the House of Lords.

For as long as the United Kingdom was entirely in control of its own constitutional affairs, there was little danger posed by the ‘weak’ separation of powers represented by the dual role of the Law Lords. However, there remained the possibility of a perception of inequality and influence, and the passage of the Human Rights Act in 1998 ensured that the separation of powers would need to be more formally defined within the British constitution. Specifically, Article 6 of the European Convention on Human Rights asserts the right of the individual to a fair trial, specifying that such a trial must take place before an independent and impartial tribunal. Although many critics viewed the UK’s de facto separation of powers as a reasonable enabler of such independence, the European Convention on Human Rights specifically invokes the importance of its articles being formalised within national law; it was therefore necessary, when the Human Rights Act was introduced in 1998, to address the inconsistencies in the UK’s application of the doctrine of separation of powers and to ensure that such separation was no longer organised along the lines of what Rodney Brazier describes as “something of a gentleman’s agreement” (Brazier, 2008, p. 110). In fact, this was just one area where the introduced of the European Convention on Human Rights via the Human Rights Act ensured that numerous grey areas in British law were formalised where once they had been merely accepted and understood. Again, this was vital if the UK’s legal system was to ensure full compliance with the European Convention on Human Rights, particularly the strictures of Article 6 concerning the formalisation (and specificity) of the right to a free and independent trial.

The Constitutional Reform Act 2005, as passed, was substantially different from the Bill originally introduced to the House of Lords in February 2004. In its original form, the Bill proposed the abolition of the Lord Chancellor, but by the time it was passed a year later, the office of Lord Chancellor had been retained albeit reduced to little more than a ceremonial role. However, as Vernon Bogdanor notes, “the abolition of the role of Lord Chancellor had always been a product of the overall drive to establish a Supreme Court and to fundamentally change the role of the Law Lords” (Bogdanor, 2009, p. 59). Furthermore, the position of the Lord Chancellor was seen as a key part of the doctrine of separation of powers. Some critics have claimed that the Lord Chancellor’s role, as previously delineated, actually enhanced the separation of powers, since he was able to act as a bridge between the judiciary and the executive, calming tensions that might otherwise cause lasting damage to the relationship. In this sense, the former role of the Lord Chanceller represented “a necessary evil, theoretically disingenuous but in practice vital to ensuring the smooth running of the separate estates” (Bogdanor, 2009, p. 63). However, the implementation of the Human Rights Act 1998 required a complete separation of powers in order to ensure a perception of independence, and the role of the Lord Chancellor was absolutely key in ensuring that this separation was achieved. Some critics have gone so far as to suggest that the attention paid to the role of the Lord Chancellor “was a smokescreen designed to draw attention to the fact that there are many other areas where the British constitution implicitly allows for overlap” (Brazier, 2008, p. 115), for example the relationship between the legislature and the executive, which some see as unduly close.

The Constitutional Reform Act 2005 also abolishes the ability of the legislature to interfere in the nomination process that defines the make-up of the Supreme Court. Previously, the legislature was the dominant voice in the process of elevating the Law Lords into office; under the new system, however, selection commissions are formed as and when vacancies arise. In this way, “the United Kingdom Supreme Court has avoided the very serious risks inherent in the American Supreme Court system, whereby presidents make their own selections (subject to a confirmation procedure) and the political constitution of the US Supreme Court is of paramount interest and importance” (Tomkins & Turpin, 2007, p. 215). The US model was consulted closely when the UK Supreme Court was established, and it was noted by some critics that “there are numerous instance where the US Supreme Court claims separation of powers yet explicitly acts against this” (Hoffman & Rowe, 2009, p. 151), with the prime example being the politicisation of the appointments process. The eschewal of such politicisation in the UK Supreme Court enables the organisation to claim true freedom from the political intentions of the government, and brings the body in line with the European Convention on Human Rights by offering much firmer guarantees of a fair and independent trial, free of political interference and the promotion of expediency. Key to this process was the removal of certain key powers from the Lord Chancellor, who lost his position at the head of both the House of Lords and the judiciary. The Lord Chancellor now functions in a mostly representational role, acting as keeper of the Great Seal; in fact, since this role can also be granted to a separate Lord Keeper of the Great Seal, it’s clear that the role of Lord Chancellor is now largely ceremonial and has been made dispensable under the terms of the Constitutional Reform Act.

There has been substantial criticism of the changes made under the Constitutional Reform Act 2005. For one thing, some have viewed the establishment of the new Supreme Court in a different physical environment to that previously frequented by the Law Lords as an exercise in surface separation that does nothing to deal with the problem caused by the numerous ‘unofficial’ channels of influence that exist between the three branches. Furthermore, some critics have argued that the decision to retain the role of Lord Chancellor – albeit in a reduced role – represented a failure to implement the vision prompted by the establishment of the Supreme Court. In particular, David Hoffman and John Rowe suggest that “the British government could have signalled its commitment to a new modern separation of powers by abandoning the role of Lord Chancellor, yet chose instead to cling on to this symbol of the past” (Hoffman & Rowe, 2009, p. 105). However, most critics concede that the new arrangement marks a much more strict separation of powers and removes much of the vagueness and uncertainty that existed previously within the constitution. Furthermore, constitutional reformers have suggested that the changes may be the next step on the road towards the establishment of a full written United Kingdom constitution, and anti-monarchy campaigners have received the changes as evidence that the theoretical power of the monarchy under the British constitution is subject to a process of increasing reduction. Some critics have also argued that the need to pass the Constitutional Reform Act 2005 represents interference in UK constitutional affairs by the EU, i.e. EU legislation requiring fundamental changes in the laws of the UK. This issue goes to the heart of concerns regarding the UK’s sovereignty and the potential clash between different legislatures. However, it’s clear that the Act represented not a major philosophical change but, rather, a stricter confirmation of existing statutes.

It’s clear that the Constitutional Reform Act 2005 has had a major influence over the development of the British constitution, and that this process is likely to continue for many years. Vernon Bogdanor argues that “by proving that it’s possible to instigate root and branch constitutional reform, the Act has opened the door for further changes over the next decade” (Bogdanor, 2009, p. 55), in which case the Act may ultimately be recognised as much for its influence on subsequent legislation as for the immediate changes it has enacted. Nevertheless, it’s clear that the confirmation of the doctrine of separation of powers can be interpreted as a defining moment in the development of the United Kingdom’s constitution. The Act can also be seen in the context of continual reform of the House of Lords, which many have criticised for representing an unelected body of control within UK life. By separating the former Law Lords from the upper house of Parliament, the British government indicated a desire to conform to modern standards regarding the importance of the separation of powers. Within the context of the European Convention on Human Rights, it was important for the UK to show that it is committed to following the protocols as well as the spirit of legislation, and the enactment of the Human Rights Act 1998 shows that there are numerous remnants of the country’s constitution that can no longer survive in the modern world without becoming more formal, and better defined. The passage of the Constitutional Reform Act 2005, and the changes it brought about, firmly indicate a future process of change within the United Kingdom, and likely make such change easier to bring about. By confirming a principle that has long been central to the UK constitution, the Act shows that the country’s political position on such key legislation is slowly changing, and that the European Convention on Human Rights and the Human Rights Act 1998 are having a major impact on British constitutional life.