Public law revision
Areas where the UK still fall short on separation:
Changes to the role of Lord chancellor; creation of Supreme Court
Changes introduced by the CRA 2005 and judicial independence
Personnel :
Ministers are members of the executive and the legislature- this is required by convention.
Why do we have rules in place which infringes the separation of powers doctrine?
Normally, the monarch is a member of the executive, the legislature and is the head of the courts.
Prior to the constitutional reform act 2005, the Lord chancellor was the head of the judiciary. That is,
he was a judge, a member of the legislature and a member of the executive. However, this is now
different because of the reforms of the Act. The head of the judiciary is now Lord Chief Justice Lord
Burnett of Maldon (Lord Burnett), who assumed the role on 2nd October 2017.
Relevant sections of the Constitutional reform act 2005 are :
- Section 3(5): “the Lord Chancellor and other Ministers of the crown must not seek to influence
particular judicial decisions through any special access to the judiciary.”
- Section 7(1): “ the Lord chief justice holds the office of president of the courts of England and wales
and is head of the judiciary of England and wales.”
Unit very recently, there was an overlap of personnel in the form of the Law lords- the highest appeal court in
the UK was the appellate committee of the House of Lords- ie: part of the legislature.
This has now changed:
The CRA 2005 has created a Supreme Court which has replaced the Appellate Committee of the House
of Lords and will also hear devolution issues which are previously heard by the Judicial Committee of
the Privy Council.
The first justice of the Supreme Court will be the last law lord of the appellate committee (excepting
those that have retired) but they will not sit or vote in the HoL while serving as judges- though they
may re-take their seat once they retire as judges. Future justices of the Supreme Court will be given
the title ‘lord’ or ‘lady’ but will to necessarily be given seats in the HoL on retirement.
The relevant section of the CRA 2005:
- Section 23: The Supreme Court
(1) There is to be a Supreme Court of the UK
(2) The court consists of the persons appointed as its judge by her majesty by letters patent, but no
appointment at cause the full-time equivalent number of judges of the court at any time to be more
than 12.
The reference to full-time equivalent suggests that the number of judges can be more than 12 if some
are part time as long as the full time equivalent is not more than 12. There can be less than 12 but
not more than the full time equivalent of 12
The reason for the new Supreme Court is to make a separation between the legislature and the
judiciary.
Control
The main issue here is the relationship between the executive and the legislature. It is the job of the
legislature to hold the Government to account and in this sense, in theory at least, the legislature
exercises some control over the executive.
However in fact the executive control the legislature.
- Under our constitution, the person that can control a majority in the HoC becomes prime minister, her
or she then chooses their government. This means that the government will always have a majority of
support in the HoC and so, in reality, is able to control the commons. This control strengthened by the
fact that many members of the commons will actually be members of the government.
Duties/ functions
Areas where the UK still fall short on separation:
Changes to the role of Lord chancellor; creation of Supreme Court
Changes introduced by the CRA 2005 and judicial independence
Personnel :
Ministers are members of the executive and the legislature- this is required by convention.
Why do we have rules in place which infringes the separation of powers doctrine?
Normally, the monarch is a member of the executive, the legislature and is the head of the courts.
Prior to the constitutional reform act 2005, the Lord chancellor was the head of the judiciary. That is,
he was a judge, a member of the legislature and a member of the executive. However, this is now
different because of the reforms of the Act. The head of the judiciary is now Lord Chief Justice Lord
Burnett of Maldon (Lord Burnett), who assumed the role on 2nd October 2017.
Relevant sections of the Constitutional reform act 2005 are :
- Section 3(5): “the Lord Chancellor and other Ministers of the crown must not seek to influence
particular judicial decisions through any special access to the judiciary.”
- Section 7(1): “ the Lord chief justice holds the office of president of the courts of England and wales
and is head of the judiciary of England and wales.”
Unit very recently, there was an overlap of personnel in the form of the Law lords- the highest appeal court in
the UK was the appellate committee of the House of Lords- ie: part of the legislature.
This has now changed:
The CRA 2005 has created a Supreme Court which has replaced the Appellate Committee of the House
of Lords and will also hear devolution issues which are previously heard by the Judicial Committee of
the Privy Council.
The first justice of the Supreme Court will be the last law lord of the appellate committee (excepting
those that have retired) but they will not sit or vote in the HoL while serving as judges- though they
may re-take their seat once they retire as judges. Future justices of the Supreme Court will be given
the title ‘lord’ or ‘lady’ but will to necessarily be given seats in the HoL on retirement.
The relevant section of the CRA 2005:
- Section 23: The Supreme Court
(1) There is to be a Supreme Court of the UK
(2) The court consists of the persons appointed as its judge by her majesty by letters patent, but no
appointment at cause the full-time equivalent number of judges of the court at any time to be more
than 12.
The reference to full-time equivalent suggests that the number of judges can be more than 12 if some
are part time as long as the full time equivalent is not more than 12. There can be less than 12 but
not more than the full time equivalent of 12
The reason for the new Supreme Court is to make a separation between the legislature and the
judiciary.
Control
The main issue here is the relationship between the executive and the legislature. It is the job of the
legislature to hold the Government to account and in this sense, in theory at least, the legislature
exercises some control over the executive.
However in fact the executive control the legislature.
- Under our constitution, the person that can control a majority in the HoC becomes prime minister, her
or she then chooses their government. This means that the government will always have a majority of
support in the HoC and so, in reality, is able to control the commons. This control strengthened by the
fact that many members of the commons will actually be members of the government.
Duties/ functions
