The Preservation of Separation of Powers As a Check on Autocratic Power - Essay Example

Judicial review of the legality of acts of the executive represents the central method by which courts control exercise of governmental power; which in turn operates as a central underlying facet of the separation of powers principle propounded as a fundamental constitutional principle1. Moreover, the principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority2. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.3” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely4”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power. As such, the doctrine of judicial review is theoretically vital in serving as a testament to the independence of the judiciary in its role under the fundamental constitutional separation of powers in ensuring that public bodies, such as government departments, local authorities, tribunals, agencies have not acted ultra vires5. Moreover, the ultra vires doctrine is cited as the first principle of natural justice and the rule of law that public bodies are required to act within the scope of the powers allocated to them by Parliament6. The incorporation of the European Convention of the Human Rights (implemented through the Human Rights Act 1998) further requires judicial review to ensure that public authorities do not “act in a way which is incompatible with a convention right7”. Indeed, Doctor Yardley asserts that judicial review is “the ultimate safeguard for the ordinary citizen against unlawful action by …….the more powerful administration8”. In general terms, illegality or ultra vires is applicable where a body has acted beyond its powers9: “The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law10”. When a power vested in a public authority has been exceeded, acts done in excess of the power are regarded as invalid as being ultra vires11. The ultra vires doctrine is not applicable to question the validity of the act itself, it simply applies as a control mechanism to ensure that the powers given to the public body under the relevant legislative measure are not exceeded.12 However contention has remained as to the concept of justiciability and the constitutional limits of judicial review. Alternatively it has been argued that the ultra vires doctrine is inherently limited by enabling a process by which courts scrutinise and consider the validity of the manner in which public authorities have made a decision13. The essence of judicial review is to ensure that public authorities act appropriately in exercising their duty14 regardless of the merits of the decision, which in itself begs the question as to the efficacy of the judiciary’s role under the separation of powers to truly act as a curb on the legitimacy of abuses of power by the executive15. Indeed in the case of CCSU v Minister for the Civil Service16Lord Diplock indicated that it would be difficult to challenge the exercise of a ministerial decision taken in the exercise of the prerogative since such a decision “will generally involve the application of government policy17”. Nevertheless, the CCSU decision itself effectively created a distinction between the nature of the power itself and subject matter of the power. For example, Lord Scarman asserted that “the law relating to judicial review has now reached a stage where it can be said with confidence, that if the subject matter is…. Justiciable that it is to say if it is a matter on which the courts can adjudicate, the exercise of statutory power18”. In the CCSU case, Lord Roskill further stated that “the right of challenge must …. I think, depend on the subject matter of the prerogative power which is exercised”. Lord Roskill further identified categories of decisions that would be immune from judicial review such as treaties, royal assent, the prerogative of mercy and defence of the realm on grounds that these are policy matters determined by the executive. However, the fact that such decisions are not amenable to judicial review clearly undermines the rule of law and the judicial extrapolations in the CCSU case are contradictory, which if anything have extended the parameters of judicial review in practice19. The overriding purpose of the decision was intended to highlight that although the prerogative could face judicial review, the subject matter of the power was paramount in determining justiciability, which has clearly created uncertainty as to the parameters of judicial review. This is further compounded by the fact that the judiciary has evolved and expanded the parameters of the ultra vires doctrine on an ad hoc basis in order to circumvent the inherent limitations of judicial review. 20 For example, the crux of the CCSU decision is that if the subject matter itself was amenable to review, then it was irrelevant if the source of power was statute or a prerogative power. Additionally, Lord Diplock identified the three grounds of illegality, irrationality and procedural impropriety for judicial review and in describing illegality by asserting “the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it”21. As such, this clearly widens the powers of the judiciary as a check on the executive. This is further evidenced by subsequent decisions that have relied on the CCSU case when considering justiciability. For example, in the case of R v Secretary of State ex parte Bentley,22whilst it was accepted in line with the rationale of Lord Roskill in CCSU that the prerogative of mercy was not prima facie justiciable, the judiciary found grounds for judicial review on the basis of irrationality. Additionally, in the case of Bentley, Watkins asserted that “the CCSU case made it clear that powers of the court cannot be ousted merely by invoking the word “prerogative23”” and that it was necessary to look at the subject matter of the public power. The impact of the CCSU decision clearly was a turning point in judicial review as it rejected the Government’s blanket justification of national security as had been previously accepted cases such as Liversidge v Anderson.24 Lord Fraser of Tullybelton highlighted the point that if the subject matter was justiciable and indicated that a decision had been reached by an unfair process, this shifted the onus onto the Government to prove that the decision was in fact justifiable on grounds of national security. Lord Roskill further concurred with this opinion by asserting “the courts will not act on a mere assertion that questions of national security are involved25”. For example, in the case of R v Secretary of State ex parte Fire Brigades Union26the judiciary deemed the Home Secretary’s announcement that the provisions regarding implementation of a tariff as part of the criminal injuries compensation scheme would not be implemented was an illegal act. Therefore the subject matter test has arguably widened the ambit of judicial review. For example, in the case of R v Secretary of State ex parte Ruddock27in finding the subject matter amenable to judicial review, it was held that the idea of legitimate expectation was not broken by the Home Secretary in his treatment and usage of a warrant, nevertheless Taylor LJ held that if the legitimate expectation been broken, it would have been sufficient grounds to further judicial review. Moreover in the Ruddock case, it was held that credible evidence had to be provided to support a defence of national security. The impact of the CCSU case therefore has arguably created an inherent paradox, whereby powers that are ostensibly outside the parameters of judicial review will nevertheless be justiciable on grounds of subject matter or the alternate grounds of irrationality or procedural impropriety. Whilst a flexible approach is arguably necessary to maintain the rule of law and preserve the contemporary nature of the British constitution, it clearly compounds legal certainty as to the limits of judicial power on the executive. This is further evidenced by the selective judicial approach to pleas of national security, which appear to be motivated by policy as indicated by the case of R v Home Secretary, ex p McQuillan28where the courts did not require “credible evidence” as the minister was exercising powers under terror legislation. Indeed, the judiciary have been reluctant to interfere with official decisions made under Anti-Terror legislation such as the controversial Anti-Terrorism, Crime and Security Act 2003 (ACTSA), which permits derogation from the ECHR. Nevertheless, the landmark case of R v Panel on Takeovers and Mergers, ex parte Datafin29evidenced the impact of the CCSU case in widening the ambit of judicial review. In the Datafin case, the Court of Appeal widened the ambit of ultra vires to review the conduct of certain companies during a contested take over bid failing at a panel for Takeovers and Mergers hearing. The Court of Appeal held the private body amendable to judicial review by widening the ambit of “public functions” thereby ignoring the source of law in considering judicial review applications. The Datafin case sent shockwaves through academic circles as an ad hoc extension of the parameters of the ultra vires doctrine with the judiciary effectively entering political territory30. This issue has continued to be come pertinent with the implementation of the European Communities Act 1972 (ECA) and the Human Rights Act 1998 (HRA). This is further evidenced by the case of Transport, ex p Factortame (No.231), where it was held that the principle that an injunction could not be obtained against the Crown could be set aside if it prevented the granting of interim relief in a dispute governed by EC law. This major shift saw the House of Lords expressly acknowledging primacy of EC law over national legislation and demonstrated the limitations on Parliamentary intention being implemented if legislative provisions contravened rights under EC law32. In addition to the radical shift in constitutional convention, the Factortame decision also highlighted the conflict between established constitutional rights and widening concepts of democracy imported through the supremacy doctrine33. The Factortame decision was further significant due to the House of Lords’ effective entrenchment of the ECA in fettering continuing supremacy of Parliament, which contradicts the convention that Parliament cannot bind its successors34. Sir William Wade described this as a constitutional revolution, whereby “Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible”35. The Factortame decision further created a shift in approach demonstrating that the courts are willing to apply supremacy instead of circumventing the concept with strained concepts of purposive construction. Wade argues that “if there had been any such provision in the Act of 1988 we can be sure that the ECJ would hold that it was contrary to Community Law to which under the Act of 1972 the Act of 1988 is held to be subject36”. This not only suggests that doctrine of implied repeal has been abolished it appears to cement the independence of the judiciary under the separation of powers at the expense of Parliamentary supremacy; further widening the power of the judiciary to develop judicial review in its role under the separation of powers doctrine. The CCSU case clearly marked a significant turning point in judicial review and to one end asserted the primacy of the rule of law within the constitutional framework. As such, theoretical justification for judicial review as a tool in the fundamental principle of separation of powers remains sound, however the CCSU decision has arguably led to an ad hoc expansion of its boundaries into political waters, which in turn highlight the blurring of distinction between the roles of the judiciary and executive in policy making under fundamental constitutional convention. Whilst the boundaries between these roles under the constitution continue to remain unclear, it is submitted that there can be no real separation of powers which undermines the overall democratic objective of British constitutional theorem. Moreover, notwithstanding the welcome objectives of the Constitutional Reform Act 2005 (the Act) in recognising the need for the UK to redress the inconsistencies and internal contradictions in the previous application of the separation of powers, the inherent difficulty in any “constitutional” reform in the UK is that due to the lack of a written constitution, it is arguable that any such provisions lack constitutional basis37. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary38. This reasoning suggests therefore that due to the lack of precise definition regarding boundaries of judicial power, it is effectively impossible to change their powers through constitutional reform39, which again undermines separation of powers. Moreover, the Act raises issues as to whether Britain needs a wider debate on its constitution in general before it can move forward with an adequate application of the separation of powers, which must be addressed. It is only when the demarcation lines setting out the exact parameters of powers and channels of communication between the judiciary and the executive is clear, that judicial review doctrine can be utilised as meaningful tool in acting as a check on executive power with legal certainty and consistency. BIBLIOGRAPHY H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Mark Elliot., (1999). The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law. Cambridge Journal of Law Volume 58 129. Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Leyland., & Papworth (2006) Textbook on Administrative Law. Oxford University Press. Montesquieu., “The Spirit of Laws” (1748) reported (2002) Prometheus Books, pp.19-28. Lord Steyn in Ministerial Speech, Constitutional reform: strengthening democracy and rights (2004). Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Le Sueur., A., (2005). Judicial Power in the Changing Constitutions: In Jowell & Olive (Eds.). The Changing Constitution, Chapter 13. C. Turpin & A. Tomkins., (2007). British Government and the Constitution: Text and Materials. 6th Edition Cambridge University Press. . H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Lord Woolf., (2005). Singapore Academy of Law A, Constitutional Protection without a Written Constitution. Lord Woolf., (2004) “The Rule of Law and a Change in the Constitution”. Volume 63(2) Cambridge Law Journal. Lord Woolf., (2001). Judicial Law Handbook. 3rd Revised Edition Hart Publishing. D C M Yardley (1984). A Source Book of English Administrative Law. Modern Law Review, Volume 27 Statutes Human Rights Act 1998 Anti-Terrorism, Crime and Security Act 2003 Constitutional Reform Act 2005 European Convention on Human Rights. Read More