Doctrine of Separation of Powers and Constitutional Reform Act 2005

This report evaluates the status of the doctrine of the separation of powers while referring it to the reforms implemented by the Constitutional Reform Act 2005. It analyses the principle of the separation of power and the changes brought by the Constitutional Reform Act 2005. It evaluates the impact of this reform on the judiciary and its connection with other organs of the government due to change in the powers of the Lord Chancellor.

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Public Law

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Table of Contents
Introduction...............................................................................................................................2
Doctrine of the Separation of Powers........................................................................................3
Constitutional Reform Act 2005.................................................................................................4
Changes to the Lord Chancellor.............................................................................................4
Creation of the Supreme Court..............................................................................................5
Appointment of Judges..........................................................................................................6
Flaws in the CRA 2005................................................................................................................6
Conclusion..................................................................................................................................8
Bibliography...............................................................................................................................9

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Introduction
The aim of this report is to evaluate the status of the doctrine of the separation of powers
while referring it to the reforms implemented by the Constitutional Reform Act 2005. The
doctrine of separation of powers is a political principle which is a model for the governance
of a state. Based on this model, the government of a state is divided into different branches
each of which has separate powers and responsibilities in order to ensure that they did not
contradict or conflict with each other. The Constitutional Reform Act 2005 was an act which
was implemented by the UK Parliament which was divided into three parts. These parts
include creation and setting the policies for the UK Supreme Court, the establishment of the
office of Lord Chancellor and regulating the appointment of judges.1 This report will analyse
the principle of the separation of power and the changes brought by the Constitutional
Reform Act 2005. This report will evaluate the impact of this reform on the judiciary and its
connection with other organs of the government due to change in the powers of the Lord
Chancellor. This report will also evaluate the flaws of this reform relating to the general
principles which are developed by the common law and statute.
1 Robert Hazell, ‘Judicial independence and accountability in the UK have both emerged stronger as a result of
the Constitutional Reform Act 2005’ (2015) 2015 Public Law 198-206.

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Doctrine of the Separation of Powers
The Political Doctrine of the Separation of Powers was first proposed by Montesquieu in his
work titled De l’espirit des Lois; however, the first thought of separating the legislative
power was proposed by John Locke. He proposed that the legislative power should be
divided into three parts which include federative power, continuous legislative power, and
discontinuous legislative power. This principle was incorporated into the constitution of the
United States of America in 1787 by the founding fathers. It was provided by Montesquieu
that it is a basic principle that the same person should not be allowed to form more than
one party of the three organs of the government.2 In the legal system of the United
Kingdom, the doctrine of the separation of power has been recognised, and the power is
categorised into three parts which include legislative, executive and judicial. The legislative
power is given to the parliament, the executive power is given to the Prime Minister and his
Cabinet, and the judicial power is given to the Supreme Court and lower courts. The
doctrine of the separation of power is significant for a democratic government because
democracy cannot be established if one party is given the right to use all the powers.
This doctrine is a key part in modern democracies; however, this concept has been
corrupted by governments through using the system of check and balance. Although a
written constitution is not available in the United Kingdom, however, it did not mean that it
is possible to claim that the doctrine of the separation of powers did not apply in the
country.3 This doctrine exists but in a weak form due to changes brought forward by the
government due to which the power of three different departments resulted in overlapping
with each other. This existence of this doctrine was highlighted in the case of R (Anderson) v
Secretary of State for the Home Department4. In this case, it was held by Lord Steyn that the
principle of the separation of power is strictly applied in the UK which is a key principle of
governance. In DPP of Jamaica v Mollison5 case, the court accepted that the principle of the
separation of powers between the judiciary and other organs of the government.6
2 Maurice Vile, Constitutionalism and the Separation of Powers (Liberty Fund 2012).
3 Jessica Bulman-Pozen, ‘Federalism as a Safeguard of the Separation of Powers’ (2012) 112 Colum. L. Rev. 459.
4 [2002] UKHL 46
5 [2003] 2 AC 411
6 Se-shauna Wheatle, Principled Reasoning in Human Rights Adjudication (Bloomsbury Publishing 2017).

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Constitutional Reform Act 2005
The Constitutional Reform Act 2005 (CRA) came in force on 3rd April 2006, and it received
Royal Assent on 24th March 2005. After the implementation of this reform, the role of the
Lord Chancellor was affected. The judiciary system of the country has strengthened by this
reform which is divided into seven parts, 149 sections, and 18 schedules.7 This reform makes
provisions for adjusting the functions of the Lord Chancellor and the office, and it also
provided a Supreme Court to substitute the existing role in the Law Lords in the House of
Lords. One of the key areas which were affected by this reform was the application of the
doctrine of the separation of powers in the United Kingdom which otherwise loosely applied
in the UK. Although, the introduction of this reform did not influence the overlapping
functions between executive and legislature, however, there are key changes made relating
to the judiciary, judicial independence and the separation between the judiciary and other
organs of the government. Walter Bagehot made a comment on the English legal system
that it appears to be a “fusion of powers” rather than being compartmentalised. However,
the regulations provided by the CRA 2005 resulted in reducing the dilution relating to
separation of powers between different organs in the United Kingdom.8 This reform resulted
in helping the judiciary to become separate from the other two branches; the legislation and
the executive. The problems regarding the separation of power between the legislation and
the executive were remained untouched under this reform.
Changes to the Lord Chancellor
Before the implantation of CRA 2005, the Lord Chancellor was given a place in all three
organs of the government based on which he exercised functions relating to all three organs
including judiciary, parliament, and executive. It was held that the Lord Chancellor was the
head of the judiciary, the Speaker of the House of Lords and a senior cabinet member. Due
to these powers of the Lord Chancellor, it was argued that the doctrine of the separation of
powers did not apply in the United Kingdom. However, this confusion was corrected by CRA
2005. In this reform, the Lord Chancellor ceased to be the head of the judiciary. It was given
under section 7 (1) of the act that the Lord Chief Justice is the President of the Courts of
7 Jack Beatson, ‘Reforming an unwritten constitution’ (2010) 126 (1) Law Quarterly Review 48-71.
8 Patrick Birkinshaw, ‘Freedom of information and its impact in the United Kingdom’ (2010) 27 (4) Government
Information Quarterly 312-321.

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England and Wales based on which he is considered as the Head of its Judiciary.9 Moreover,
a Lord speaker replaced the Lord Chancellor as the chairman in the House of Lords. The
further changes brought in the CRA 2005 regarding the implementation of the doctrine of
the separation of powers is further elaborated in two sections.
Creation of the Supreme Court
Before the introduction of CRA 2005, the House of Lords was the highest court in the United
Kingdom. However, section 23 of the CRA 2005 provides the provisions for the creation of
the Supreme Court based on which the House of Lords have been subsequently replaced. As
discussed earlier, the Lord Chief Justice has replaced the Lord Chancellor as the head of the
judiciary that is now responsible for managing important functions of the Court of Appeal,
High Court, Crown Courts, County Courts, and Magistrates’ Courts.10 The provisions provided
under the CRA 2005 for creating the Supreme Court as a separate entity shows that the
Court of Appeal is different from the Parliament. After the introduction of section 23, it was
held by Lord Falconer that the time has come for the highest court of the United Kingdom to
move from the shadow of the legislature. The introduction of the new modern Supreme
Court was symbolic action, and the mere physical separation with the parliament resulted in
transpiring the confidence of the public in the judiciary system of the United Kingdom.
This was considered as a significant improvement because judges were not transparent, and
they entertain the appeals in secretive Committee Room in the Parliament before the
introduction of this reform. The objective of this reform was to promote transparency in the
separation between the legislation and the judiciary in the United Kingdom. It is also
highlighted by the fact that the judges who sat in the House of Lords did not have the power
to vote based on which the principle of the separation of power is followed.11 It also
resulted in stricter adherence to the doctrine of the separation of power in the United
Kingdom. The removal of the Lord Chancellor as the head of the judiciary and the
establishment of the Supreme Court are considered as two significant changes which were
brought by CRA 2005 while complying with the principle of the separation of powers. These
9 Roger Masterman, The separation of powers in the contemporary constitution: Judicial competence and
independence in the United Kingdom (Cambridge University Press 2010).
10 Panu Minkkinen, ‘Political constitutionalism versus political constitutional theory: Law, power, and politics’
(2013) 11 (3) International Journal of Constitutional Law 586-610.
11 Neil Parpworth, Constitutional and administrative law (Oxford University Press 2018).

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provisions resulted in completely separating the judiciary from the executive and the
Parliament which increased the trust of people in the judicial system of the UK.
Appointment of Judges
As discussed above, the judicial independence in the UK was strengthened by the CRA 2005
by removing the Lord Chancellor as the head of judiciary because his role in the
appointment of judges was considered as a gross violation of the independence of the
judiciary. The Lord Chancellor was prone to influenced by political agenda, therefore, his
removal as the head of judiciary was considered as a positive move towards promoting
transparency in the judiciary. The Judicial Appointments Commission is established under
section 61 of CRA 2005 which is created for the purpose of judicial appointment, and this
committee resulted in further reducing the role of the Lord Chancellor in the judiciary.12 This
decision complies with the doctrine of the separation of power as it promotes diversity,
specialisation, and transparency. A crucial aspect of the rule of law and the English legal
system is judicial independence; however, this concept did not receive appropriate
statutory recognition before the introduction of the CRA 2005. Section 3 (5) of the CRA 2005
has provided a statutory recognition to the judicial independence in which it is given that
the Lord Chancellor should not influence judicial decision through any special access to the
judiciary. Moreover, this change is also hoped to comply with the European Court of Human
Rights (ECHR) which confirms section 6 (1) by providing that the tribunal must not only seem
independent, but it must actually be independent.13
Flaws in the CRA 2005
The close interrelation which exists between the Parliament and Executive is another key
reason which is why the application of the separation of powers is considered as diluted in
the United Kingdom. Before the introduction of this reform, it was seen that the functions of
executives and the legislature were overlapping. However, it is not the case with the United
Kingdom only, and there are various other nations in which the legislature and executive
functions are overlapping. Many experts also argue that perhaps it is not favourable for the
country to separate its two organs that is legislature and executive. Walter Bagehot
12 Vernon Bogdanor, ‘An era of constitutional reform’ (2010) 81 The Political Quarterly 53-64.
13 Mary Clark, ‘Advice and Consent vs. Silence and Dissent-The Contrasting Roles of the Legislature in US and
UK Judicial Appointments’ (2010) 71 La. L. Rev. 451.

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provided that the fusion which is created due to overlapping of the executive and legislature
is an efficient secret of the English constitution.14 A good example is that the Prime Minister
is the leader of the majority party in the House of Commons, and he also performs the
functions of the head of executives.
It is a key flaw in the CRA 2005 which was not addressed and its conflicts with the principle
of the separation of powers. Another key disadvantage of CRA 2005 is that there is lack of
proper implementation of checks and balances because there is a fused composition
between the legislative and executive branch in the United Kingdom. For example, a fusion
is seen between the legislative and executive because the executive is drawn by the
legislator.15 Based on this analysis, it can be said that although there has been a meaningful
separation of powers relating to the judiciary in the United Kingdom after CRA 2005,
however, there has been no impact on the separation of powers between legislature and
executive.
14 Antonios Emmanouil Kouroutakis, The Constitutional Value of Sunset Clauses: An Historical and Normative
Analysis (Routledge 2016).
15 Nicolas Bamforth, ‘Current issues in United Kingdom constitutionalism: An introduction’ (2011) 9 (1)
International Journal of Constitutional Law 79-85.

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Conclusion
In conclusion, the Constitutional Reform Act 2005 is considered as an important step which
is focused towards achieving the independence of the judiciary which is achieved due to
meaningful application of the doctrine of the separation of powers. This objective is
achieved by changing the role of the Lord Chancellor in the legislature, judicial and executive
which resulted in restricting the powers. By creating the Supreme Court, the CRA 2005 has
shown the true separation between the legislation and the judiciary. Moreover, the
establishment of the Judicial Appointment Commission resulted in promoting transparency
and specialisation in the appointment of judges, and it promotes the implementation of the
principle of the separation of powers. Therefore, the introduction of CRA 2005 has resulted
in strictly separating the powers by separating the judiciary from other two organs,
however, the problem relating to the separation of powers in legislator and judiciary organ
has not been addressed by this reform. On the other hand, it is also considered that the
interconnection between the executive and legislature is crucial for the implementation of
an efficient mechanism and changes in these policies will not be favorable for the United
Kingdom.

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Bibliography
Books
Kouroutakis AE, The Constitutional Value of Sunset Clauses: An Historical and Normative
Analysis (Routledge 2016).
Masterman R, The separation of powers in the contemporary constitution: Judicial
competence and independence in the United Kingdom (Cambridge University Press 2010).
Parpworth N, Constitutional and administrative law (Oxford University Press 2018).
Vile M, Constitutionalism and the Separation of Powers (Liberty Fund 2012).
Wheatle S, Principled Reasoning in Human Rights Adjudication (Bloomsbury Publishing
2017).
Articles
Bamforth N, ‘Current issues in United Kingdom constitutionalism: An introduction’ (2011) 9
(1) International Journal of Constitutional Law 79-85.
Beatson J, ‘Reforming an unwritten constitution’ (2010) 126 (1) Law Quarterly Review 48-71.
Birkinshaw P, ‘Freedom of information and its impact in the United Kingdom’ (2010) 27 (4)
Government Information Quarterly 312-321.
Bogdanor V, ‘An era of constitutional reform’ (2010) 81 The Political Quarterly 53-64.
Bulman-Pozen J, ‘Federalism as a Safeguard of the Separation of Powers’ (2012) 112 Colum.
L. Rev. 459.
Clark M, ‘Advice and Consent vs. Silence and Dissent-The Contrasting Roles of the
Legislature in US and UK Judicial Appointments’ (2010) 71 La. L. Rev. 451.
Hazell R, ‘Judicial independence and accountability in the UK have both emerged stronger as
a result of the Constitutional Reform Act 2005’ (2015) 2015 Public Law 198-206.

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Minkkinen P, ‘Political constitutionalism versus political constitutional theory: Law, power,
and politics’ (2013) 11 (3) International Journal of Constitutional Law 586-610.
Table of cases
DPP of Jamaica v Mollison [2003] 2 AC 411
R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46