Introduction
As noted in my earlier blog post The Illegal Migration Bill: Breach of the Separation of Powers principle, in the Illegal Migration Bill the Home Office is asking Parliament to enact measures that breach the principle of the separation of powers in prohibiting judicial restraint of potentially unlawful Home Office conduct pending judicial review. Among other things, by clause 52 interim remedies are to be prohibited for no other reason than it will make it easier for the government to remove people from the UK. No evidence whatsoever has been advanced to show that judicial powers are being misused.
Absent a written constitution to maintain the role of judges and the judicial branch of government, what constrains a government (the executive branch) possessed of a majority in the House of Commons (the core element of the legislative branch) from enacting not only substantive policy on migration but, in so doing, also taking away the power of the courts (the judicial branch) to perform their functions? Must the constitutional principle of the separation of powers yield to that of Parliament's legislative supremacy, even where such submission deprives the courts of a core function of ensuring that the government is acting lawfully?
Long before the Bill becomes law and the clauses that oust the judicial function are themselves tested in the courts, MPs and Peers ought to consider whether to remove those provisions so that they do not stand part of the Bill. They should remove the offending provisions now to preserve the integrity of the UK's constitutional order as a democratic state. Lessons from Commonwealth countries with similar political and legal traditions point out the way ahead.
The Westminster model in Commonwealth countries
The 'Westminster model' of Parliamentary government in use at Westminster wants for a written constitution to protect the role of judges. However, in its export variety in countries that were formerly British colonies, the 'Westminster model' of Parliamentary government is usually protected by a written constitution that respects the role of the courts, that entrenches the separation of powers, and that inhibits the ability of governments to interfere with the role of the judiciary. Like a certain stout beer, the export variety is stronger but nonetheless recognisably the same as the drink brewed at home.
Where now-independent countries continue to make use of the UK Privy Council's Judicial Committee as their final court on constitutional matters, UK Judges, who sit ordinarily in the UK Supreme Court, sit as Judges in the Privy Council and thereby operate at the apex of the judicial branch of government in the country concerned. In that capacity, they have had much to say about the separation of powers.
MPs and Peers as legislators considering the Illegal Migration Bill may properly consider whether they ought to omit the clauses that cut back judicial power so as to uphold the constitutional principle of the separation of powers. In considering this matter there is much to learn from the decisions of the Privy Council as to the importance of the separation of powers principle.
Privy Council consideration of the Separation of Powers principle in Commonwealth countries
The characteristics of a sovereign democratic state include respect for the separation of powers. In State of Mauritius v Khoyratty [2006] UKPC 13, [2007] 1 AC 80, the Privy Council considered the provision in section 1 of the Constitution that Mauritius "shall
be a democratic state" and held, among other things, that it was not a mere preamble but was an operative and binding provision, whose exceptionally deep entrenchment militated against a right to bail being abolished by ordinary legislation. In giving judgment Lord Steyn stated:
'11…While the judgment in [a previous case] does not afford the answer to the question under consideration it is relevant in emphasising (a) that Mauritius is a democratic state based on the rule of law; (b) that the principle of separation of powers is entrenched; and (c) that one branch of government may not trespass on the province of any other in conflict with the principle of separation of power.'
While Mauritius had a written constitution setting out how powers were separated, it was nonetheless a hallmark of the idea of a modern democratic state to have such separation. In the same case, Lord Rodger stated:
'29… Therefore, the decisions cited by Lord Steyn do indeed "help to give important colour" to the guarantee that Mauritius is to be a democratic state. In particular, it is a hallmark of the modern idea of a democratic state that there should be a separation of powers between the legislature and the executive, on the one hand, and the judiciary, on the other.
30 I have come to the view that section 2 of the 1994 Act did indeed purport to make a fundamental, albeit limited, change to this component of the democratic state envisaged by section 1 of the Constitution. The crucial problem lies in the absolute nature of section 5(3A). Where applicable, it would completely remove any power of the judges to consider the question of bail, however compelling the circumstances of any particular case might be…'
In turn Lord Mance in the same case recalled an earlier case before the Privy Council concerning Jamaica: Hinds v The Queen [1977] AC 195. In that case Lord Diplock had stated that new constitutions on the Westminster model were evolutionary not revolutionary and that:
'Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature . . . Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively.' (emphasis supplied).
In a country with the Westminster model of Parliamentary government (where there is overlap between executive and legislative powers), the role of the judiciary is especially important. In Director of Public Prosecutions of Jamaica v Mollison [2003] 2 AC 411 Lord Bingham considered the separation of powers under a constitution organised on the Westminster model. He stated:
'Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so…' (para 13).
The Illegal Migration Bill: Considerations for UK MPs and Peers
From these cases, on considering the principle of the separation of powers in the context of the Illegal Migration Bill, certain matters are clear:
- The characteristics of a sovereign democratic state include respect for the separation of powers.
- Regardless of particular constitutional arrangements, it is a hallmark of a modern democratic state to have such separation of powers.
- Absent general constitutional revision, judicial powers should not be taken away by ordinary legislation.
- In countries with the Westminster model of Parliamentary government, it is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.
- In a country with the Westminster model of Parliamentary government (where there is overlap between executive and legislative powers), the role of the judiciary is especially important.
- Taking away judicial powers is a distinct vice (even where the government or Parliament is not attempting to exercise them itself), it offends the principle of the separation of powers.
If interim remedies are prohibited where the removal of a person from the UK is contemplated, the courts will be unable to control government action and thereby prevent unlawful conduct. It is no good saying that a final (as opposed to interim) hearing may find unlawful conduct such the Secretary of State may be ordered to bring a person back, so that the courts still play a role. By then the damage may have been done. Interim remedies exist for a reason: they prevent unlawful conduct.
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