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The Impact of the Constitutional Reforms Act 2005 on the Doctrine of Separation of Powers

Introduction

The Constitutional Reforms Act 2005 (CRA 2005) is an important piece of legislation in recent times with substantial implications for the English legal system, courts and the Constitutional law. The Act is key to bringing in change and reforms in some established norms of the English legal system, such as the office of the Lord Chancellor and the higher judiciary. An area that has been impacted by the CRA 2005 reforms, is the doctrine of separation of powers, which was otherwise loosely applied in the UK. An example of the loose application of the principle of separation of powers was the Lord Chancellor acting as the head of judiciary, the speaker in the legislature and as the senior cabinet member in the government. Moreover, there were areas where the functions of the legislature and the executive were overlapping. While the overlapping functions between legislature and executive have not been impacted by the CRA 2005 reforms, there is a marked reform of the judiciary, judicial independence and the separation between judiciary and other organs of the government through the CRA 2005. Therefore, passage of the CRA 2005 has paved the way for a firmer application of the principle of separation of powers. In other words, the CRA 2005 and the changes and reforms made by it has ensured a more meaningful adherence to the doctrine of separation of powers. This essay discusses the reforms made by the CRA 2005 and their impact on the separation of powers principle.

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The Principle of separation of powers and the reforms under CRA 2005

The English judiciary has long highlighted the separation of powers between judiciary and executive and legislature. In R (Anderson) v Secretary of the State for the Home

  • Dawn Oliver, Gavin Drewry, The Law and Parliament (Cambridge University Press 1998).

Department, it was observed by Lord Steyn that the separation of powers between the judiciary and the other organs of government is strictly applied, and this strict separation is a strong principle of governance in the UK. In R v Hinds, Lord Diplock held that the application of separation of powers as between the judiciary and the legislature and executive is a matter of fact. In Pickin v British Railways Board, the court observed that where the principle of parliamentary sovereignty is applied, it is in effect the application of the principle of separation of powers, wherein legislation is kept out of the scope of judicial review, as a matter exclusively to be decided by the Parliament. In DPP of Jamaica v Mollison, strict separation of powers between the judiciary and other organs of the government was accepted by the court. In fact, there are many cases where the judiciary has ruled in favour of there being a strict separation of powers between executive and legislature on one hand and the judiciary on the other. Nevertheless, the office of the Lord Chancellor and the functions he exercised in judiciary, legislature as well as executive, has been seen as an impediment to meaningful application of separation of powers

Separation of powers doctrine relates to distribution of powers between the organs of the state, wherein each organ of the state has certain functions assigned to it, that are to be exclusively performed by it. No one organ of the state is allowed to intervene in the functioning of the other organs by assuming to itself functions that are to be performed by the other organ. In that way, separation of powers is achieved as between the different organs. The proponents of the doctrine suggest that the system of checks and balances is ensured if

  • [2002] UKHL 46.
  • Ibid.
  • [1979] Crim LR 111.
  • [1974] AC 765.
  • Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010) 27.
  • R (Anderson) v Secretary of the State for the Home Department, [2002] UKHL 46.

the principle of separation of powers is followed. For instance, the actions of the executive can be subjected to both Parliamentary review as well as judicial review and the legislative actions are subject to judicial review.

The principle of separation of powers is diluted in the English political and legal system. There are many reasons why such a dilution of the principle is observed. However, with the passage of the CRA 2005, some of this dilution is corrected. Earlier, the Lord Chancellor was given a place in Parliament, Executive and the judiciary, wherein he exercised functions in all three organs. He was the head of the judiciary; a senior cabinet member; and the Speaker of the House of Lords. This is one of the reasons why it was said that the principle of separation of powers is diluted in the UK. CRA 2005 corrected this dilution, and the head of judiciary ceased to be the Lord Chancellor. With the establishment of the Supreme Court in the UK, the Lord Chief Justice is the President of the Courts of England and Wales and Head of its Judiciary. Moreover, the Lord Chief Justice has important functions in the Court of Appeal, High Court, County Courts, Crown Courts and Magistrates’ Courts.

The structuring of the courts in the UK have also been made to undergo reforms under the CRA 2005. Earlier, the highest court in the UK was the House of Lords, but under the CRA 2005, the establishment of the Supreme Court has meant that the House of Lords has been replaced by the Supreme Court. The Supreme Court is now the highest court of appeal in the UK.

Another reason why the separation of powers doctrine was considered to be diluted in the UK is because of the close inter-relation between the Parliament and Executive. The

  • B Jones and P Norton, Politics UK (Oxon: Routledge 2014) 61.
  • Dawn Oliver, Gavin Drewry, The Law and Parliament, Supra note 1, p.16.
  • CRA 2005, section 7.
  • CRA 2005, s.7

functions of legislature and executive are overlapping. However, this is not a unique phenomenon in the UK alone. The principle of separation of powers is applied in varying degrees in different parliamentary systems of government in the world. Consequently, a united legislature and executive is often seen in different countries in the name of expediency. In the UK, the Prime Minister performs the functions of the head of the executive as well as the leader of the majority party in the House of Commons. This aspect of the dilution of separation of powers is not impacted by the CRA 2005.

The two reforms discussed above, that is, the ceasing of the office of Lord Chancellor as the head of judiciary and the establishment of the Supreme Court, are the two most important reforms of the CRA 2005 with respect to the principle of separation of powers. These two reforms were made to ensure the complete separation of the judiciary from the executive and the Parliament. The basic focus of the reforms was to strengthen the judicial independence, which has always been the primary concern of the English application of doctrine of separation of powers. Judicial independence has been strengthened under the CRA 2005 though the ceasing of the Lord Chancellor’s office as head of judiciary as well as abolishing Lord Chancellor’s role in appointment of judges. This is discussed in more detail in the following section.

The Lord Chancellor’s ceasing of exercising the role of head of the judiciary is an important step towards implementing a more meaningful separation of powers doctrine within the English legal system. That is because the Lord Chancellor exercised considerable influence in the judiciary before, while at the same time holding the office of the Speaker as

  • Dawn Oliver, Gavin Drewry, The Law and Parliament , Supra note 1, p.16.
  • Ronald J Krotoszynski, “The separation of legislative and executive powers”, in Tom Ginsburg, Rosalind Dixon (eds.) Comparative Constitutional Law (Cheltenham: Edward Elgar 2011) 234.
  • Richard Benwell and Oonagh Gay, “The Separation of Powers” (SN/PC/06053) 3.
  • Roger Masterman, The Separation of Powers in the Contemporary Constitution, Supra note 6, p.219.
  • Ibid.

well as being a senior cabinet member. Due to his exercising important roles in all three organs of the government, it could not be said that the principle of separation of powers was applied properly. The influence of the Lord Chancellor was seen in the judiciary because he was a judge while at the same time being a member of both the executive as well as the legislature in important capacities and he also played an important role in appointment of judges. In fact, his influence in the appointment of judges was a considerable watering down of the independence of judiciary. Now the Judicial Appointments Commission is established for the purpose of judicial appointments, and this body performs its functions as per the provisions in the CRA 2005. The reforms made through CRA 2005 in the judicial appointments system, have sought to create a more transparent process for appointment of judges. The Lord Chancellor’s influence in this area was an impediment both the application of judicial independence as well as the application of the principle of separation of powers. Judicial independence is a key aspect of rule of law and despite importance of the principles of rule of law in the English legal system, the concept of judicial independence did not receive statutory recognition until the passage of the CRA 2005. Now with the important reforms made under the CRA 2005, judicial independence has received statutory recognition, especially by the establishment of the Judicial Appointments Commission and the decreased significance of the Lord Chancellor’s office in the judiciary.

The applicability of the European Convention of Human Rights (ECHR) also made it incumbent for there to be more independence given to the judiciary. The ECHR, Article 6(1) provides that every person has a right to a fair trial by an independent tribunal. The European

  • Roger Masterman, The Separation of Powers in the Contemporary Constitution: and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010) 222.
  • Ibid.
  • CRA 2005, sections 63 to 66.
  • Diana Woodhouse, The Office of Lord Chancellor (London: Hart Publishing 2001).
  • Diana Woodhouse, "United Kingdom: The Constitutional Reform Act 2005—defending judicial independence the English way" (2007) 5 (1) International Journal of Constitutional Law 153.
  • Ibid.

Court of Human Rights (ECtHR) has held that for the conformity to Article 6 (1), the tribunal must not only appear to be independent but must actually be independent. Furthermore, the ECtHR held that independence of judiciary may be compromised where legislative and adjudicative functions are mixed and not separated clearly and strictly. As long as the Lord Chancellor continued to exercise important roles in all three organs of the government, there was a compromise on independence of judiciary, which also impacted the meaningful implementation of the principle of separation of powers.

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Conclusion

The passage of the CRA 2005 is an important step towards achieving greater independence of judiciary as well as a more meaningful application of separation of powers principle. This is achieved through the creation of the Supreme Court as the highest court of land as well as the Lord Chancellor being removed as the head of judiciary. Now the head of the judiciary is the Lord Chief Justice. Appointment of judges is also to be done by the Judicial Appointment Commission, which had led to a more transparent system for appointments. Therefore, with the CRA 2005 reforms, a stricter separation of powers between the judiciary and other organs is achieved.

Bibliography

  • Benwell R and Gay O, “The Separation of Powers” (SN/PC/06053, House of Commons)
  • Krotoszynski RJ, “The separation of legislative and executive powers”, in Tom Ginsburg, Rosalind Dixon (eds.) Comparative Constitutional Law (Cheltenham: Edward Elgar 2011)
  • Jones B and Norton P, Politics UK (Oxon: Routledge 2014)
  • Masterman R, The Separation of Powers in the Contemporary Constitution: and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010)
  • McGonnell v UK, [2000] Eur. Ct. H.R. 28488/95.
  • Procola v Luxembourg, [1995] Eur. Ct. H.R. 27/1994.
  • Diana Woodhouse, "United Kingdom: The Constitutional Reform Act 2005”, Supra note 21.
  • Oliver D and Drewry G, The Law and Parliament (Cambridge University Press 1998)
  • Woodhouse D, The Office of Lord Chancellor (London: Hart Publishing 2001)
  • Woodhouse D, "United Kingdom: The Constitutional Reform Act 2005—defending judicial independence the English way" (2007) 5 (1) International Journal of Constitutional Law 153

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