Law Sessions With Jennifer Housen’s Podcast

Executive vs Judiciary: Who Has the Final Say?

Subscriber Episode • • Jennifer Housen • Season 2 • Episode 3

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The separation of powers between branches of government is essential to democratic governance, with various overlaps creating checks and balances that prevent any one branch from gaining too much authority.

• Executive can be controlled by the judiciary, as illustrated in M v Home Office where the court found a government department in contempt
• Courts distinguish between "Crown as monarch" (not subject to judicial oversight) and "Crown as executive" (subject to judicial review)
• Justiciability determines what matters courts can address - individual rights are justiciable while "high policy" decisions generally are not
• The GCHQ case established that royal prerogative powers are subject to judicial review except in specific areas like treaties and national security
• Former Lord Chancellor role spanned all three branches of government until Constitutional Reform Act 2005
• Judicial independence now strengthened through Lord Chief Justice role and Judicial Appointments Commission
• Questions remain about executive influence over judicial appointments

Join us in our next segment where we'll explore the final overlap between the judiciary and legislature to complete our examination of separation of powers in the UK constitution.


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to this third segment of Separation of Powers. In respect of this law session on public law, we considered, before the break, the overlaps and we ended the last session with looking at the overlap between the executive and the legislature. And, just by way of recap, we looked at the fact that the government, meaning the executive, proposes legislation. But at times the government can be at the heart of legislating, especially, for example, when one looks at delegated legislation. Of course, in the USA, the executive can be a different party from the legislature. Now, something like that, unfortunately, in the UK would not happen, precisely because of the parliamentary democracy framework. Now Parliament may delegate lawmaking powers, as we said as well, in that the executive, acting in certain capacity, can, of course, deal with delegated legislation. The next overlap that I want us to consider, the next contrast, is what occurs when you have the executive and the judiciary. What are some of the dynamics which operate? Well, the starting point, as I flagged up in the first segment, is that the judiciary whenever you're looking at good governance and, in particular, when you're looking at a transparent democracy, there is the judicial independence which goes to the heart of it. Now, judicial independence is a key requirement for separation of powers, because when you consider the control of the executive, that may be relevant. Now we will, of course, explore the final aspect when we look at the judiciary and the legislature. But for our part, looking at the executive-judiciary overlap, we see that the executive may certainly be controlled to some extent by the judiciary, and the classic case, of course, is the case of M and the Home Office.

Speaker 1:

Now in the case there was a Zairean national who sought asylum. Now his application and an application for judicial review were rejected. He was told that he was to be returned to Zaire, but then there was apparently from the Home Office some proceedings issued for him to be taken out. But the fact is that there were new proceedings for judicial review and the judge had said that his removal should be delayed. Now there is some sort of conflict in the report or not the report being conflicting, but some conflict as it relates to the parties because it appeared that there was some degree of undertaking from counsel to the Crown, meaning that the lawyers for the Home Office apparently gave some undertaking that he would not be removed. However, he was removed in breach of the undertaking, which counsel for the home office then said they did not give. But be that as it may, the fact was that he had a pending hearing and he ought not to have been removed. Now the judge ordered the return of M to this country and the respondent, meaning the Home Office, said the court had no power, either of mandamus or in contempt, against the Crown. They said they did not have the power against the Crown, but the court said, yes, we did or yes, we do.

Speaker 1:

A court can grant a final or indeed an interim injunction against the Crown, and the Crown and ministers of the Crown are not immune to contempt proceedings for breach of an injunction. Now the decision is significant because the House of Lords drew a distinction and the House of Lords drew a distinction between the two aspects of the crown in relation to decisions by the court, and it looked at the crown as monarch and the crown as executive. Now the courts cannot enforce the law against the crown as monarch, but they can enforce the law against the crown as executive and against those who represent the crown. So an injunction could be issued against the government, government, minister, but not against the crown. The court said. Now, that being the case, ignoring the injunction gave rise to a finding that the Secretary of State for the Home Department was in contempt. So the department was in contempt, not so much him personally. So the idea is, when you look at the exercise of a power, if that power is exercised on behalf of the crown, then certainly it may very well be that it is subject to the court reviewing it. Now this concept goes to the idea of justiciability. So if you hear the word justiciable or justiciability, it talks about whether or not a particular matter can be considered by the court. And here the courts were saying in that regard it certainly could be heard by them.

Speaker 1:

Now what about royal prerogative powers? We will certainly look at royal prerogative powers in depth in a later lecture. But for our purposes, when you consider royal prerogative powers, briefly, it is those powers which tend to be exercised by the crown or, on behalf of the Crown, by the Cabinet. Now, when you look at the exercise of royal prerogative, the judges will tend to exercise self-restraint. So what that means is that the justiciability is considered based on whether the issue is of high policy or whether it concerns individual rights. So if a matter comes before the court where the royal prerogative is the basis for that matter being brought, then the judges have to look at. What type of issue is it? Now, it will not touch high policy, as we said, but it will certainly consider matters relating potentially to citizens' rights and legitimate expectations. Now, if we go back to the Emmond Home Office case, we will see that that had to do with individual rights. The courts felt it was more than within its right to certainly consider the matter and, as such, that matter of whether or not the exercise of any powers in the Crown's name was justiciable. The court said yes, simply because, again, we're looking at individual rights.

Speaker 1:

Now let's consider another case, the GCHQ case, which is the Council of Civil Service Union and Minister for the Civil Service in 1985. Well, the case concerned the entire framework regarding the British government's position in 1984 under Margaret Thatcher, where employees of the Government Communications Headquarters, which is GCHQ, were not allowed to join a trade union, or indeed, if they were members of trade unions, it was that they could no longer be members of trade unions simply because there were issues of national security. So the reason was that there was issues of national security. Now this position was, of course, enforced through an ordering council and certainly it's an exercise of the royal prerogative. Now the Council of the Civil Service Unions chose to bring this matter to court through judicial review proceedings, and first it went to the High Court, which ruled the order in council was invalid. Now the case went to the Court of Appeal, which decided that the national security issues trumped any problems in relation to whether what was done was proper. The case, of course, then went to the House of Lords and it was decided in 1984. And in their decision the House of Lords, then now the Supreme Court, of course the House of Lords found that merely because the minister was exercising a prerogative power, she was not immune from judicial review and from the duty to act fairly, from judicial review and from the duty to act fairly. So the exercise of the royal prerogative are generally subject to judicial review, but there are certain exceptions.

Speaker 1:

When we look at the court's decision and how it was approached in the House of Lords, we see that the majority decision and the majority were, of course, lords, car, lord Scarman, diplock and Roskill. They considered the justiciability of the subject matter, meaning, is this something that the court could decide on? So they looked at matters relating to individual rights and liberties, like having the home office, and they say well, those are justiciable, but when you look at matters of high policy, they say they are not. Now, the point in GCHQ, of course, is that it did not pass without some degree of criticism because, certainly when Lord Diplock looked at it, his concern was that these persons had a legitimate expectation that they could be members of a trade union, and, not least, you are looking at this legitimate expectation being undermined. The courts therefore looked and they said well, this is a matter of high policy, so the courts can only review to see if the prerogative exists. Once you see if it exists, then you look at the, the type. Is it about liberties or is it about high policy? Now, lord roskill further decided that matters that were justiciable were those involving a legal right or a legitimate expectation, and matters that were not just justiciable were ones dealing with the making, for example, of treaties, defense treaties, defense of the realm, granting of honors, prerogative of mercy, and if it is to do with high policy, it would not be considered.

Speaker 1:

Now, as I flagged up in the last segment, in all of this, the Lord Chancellor and the office of the Lord Chancellor was one which had rested uneasily with the doctrine of separation of powers because his role used to stretch across all three organs. Today, of course, we see that the Lord Chancellor is appointed by the sovereign on the advice of the Prime Minister. The Lord Chancellor is a member of the executive. He's a member of the executive where he's the head of the Lord Chancellor's department. He is a cabinet member. He used to also, of course, be the head of the judiciary not anymore and he used to also be able to reside over the House of Lords when it sat as a court, and so that made him a member of the legislature and as such he seemed to cross all of the divide. Now, of course, we see a somewhat more efficient approach, and the act of him formally presiding, for example, over the House of Lords and heading the judiciary and so on, have certainly been addressed in the constitutional reform act of 2000, which transferred these roles to the lord's speaker and to the lord chief justice respectively. Now, as it relates to the lord speaker, he's the presiding officer of the house of lords, chairing debates in the lord's chamber and speaking for the House on ceremonial occasions. Now the other job, which has also been farmed out, is Lord Chief Justice, which is now the head of the judiciary in England and Wales, and we see that the current Lord Chief Justice is Lord Judge. He took over in somewhere in about 2008,.

Speaker 1:

Following some other promotion. Now, the new role of the Lord Chancellor, the office is no longer the official head of the judiciary. What we see, rather, is the creation of the Judicial Appointments Commission, which removes its responsibility for judicial appointments, and what we see now is that you have an independent body. The fact remains, though, that we do see that the Ministry of Justice has got the last word, even in relation to the appointments of judges. In relation to the appointments of judges, and it does beg the question whether or not there is a distancing of the executive and the judiciary. The points, then, are well made. You need to know, for example, as it relates to this particular overlap, that when you look at the executive, it does, or the biggest discussion operates in relation to the control of the executive by the judiciary. We will now take another break, and, when we come back, we will conclude with looking at the last overlap, which is looking at how the dynamics operate between the judiciary and the legislature.