Jack Straw has announced that rulings of the new Supreme Court are to be delivered before the television cameras. His own Ministry of Justice was cut out of the Home Office as part of the same attempt as this Court give yet further effect to the attempt to import into this country the dangerous, and wholly foreign, theory of “the separation of powers”.
What of the Law Lords, of whom, as set out below, there are still going to have to be some? What of the Home Secretary’s role in determining sentences? Or of the numerous quasi-judicial functions of Ministers? Or of the fact that all members of the Executive are required to be members of the Legislature? Or of the fact that the judges make the whole of the Common Law?
This “separation of powers” line was also put about when the position of Lord Chancellor was abolished overnight in favour of something apparently sketched on the back of a beer mat. But the House of Lords is still chaired by someone in much the same outfit, which was actually presented by Blair as a serious, and even conclusive, argument for abolition. It is just that Baroness Hayman is not the Lord Chancellor. But so what, from that point of view? Meanwhile, until Straw there was still no Cabinet Minister accountable to the House of Commons either for the major front-line public service that is the Court Service, or for the enormous Legal Aid budget of public money.
Like the other examples given above, the office of Lord Chancellor was often described as an “exception” to "the separation of powers". Quite apart from the fact that such a doctrine cannot, by definition, admit of exceptions, so that their very existence disproves the doctrine itself, there do seem to be an awful lot of these “exceptions”, and they do seem to matter rather a lot.
In reality, the “powers” have never been “separate”, nor can they ever be so. One of them has to win in the end. In Britain, we have decided that it is to be Parliament, and thus the elected House of Commons within Parliament. Would we rather that the Prime Minister always had the last word? Or that, as in the United States (among other places) an unelected judicial body of lifetime appointees could simply rule that any matter it liked was “constitutional”, and thus reserved entirely to itself?
This is why, as is their wont, judicial theorists and constitutional lawyers habitually engage in more than a spot of wishful thinking where “the separation of powers” is concerned. They wish to see an American-style krytocracy in this country, where the judiciary is still drawn (unlike the Bar generally these days) from a very narrow social, socio-economic and educational base indeed. Presumably, that is what makes it so attractive to them.
The wretched Human Rights Act has been a major step in that direction. But mercifully, we still have instead the supreme legislative, executive and judicial authority of the Crown (i.e., of the nation embodied, regardless of party or anything else), exercised either by Parliament itself or by Ministers drawn from and accountable to Parliament. Within Parliament, the House of Commons has come to be elected by universal adult suffrage and, since the Parliament Act of 1911, to be supreme.
The Crown is the ultimate contradiction of the Franco-American, and in no sense indigenously British, theory of the separation of powers. And it is thus the ultimate guarantee that the United Kingdom (and each of the 15 countries with which we share the Crown) will remain a democracy, unlike either absolutist and historically coup-plagued France, or krytocratic America, to name but two.
And what of the the crowing of Scottish Nationalists, within and beyond the SNP, about Scotland’s exemption from the jurisdiction of the new Supreme Court of the United Kingdom? No reason for this has ever been presented. There has been nothing more than the usual squealing that “Scotland is different”, for which no evidence ever does have to be presented. No matter that, in its days, the Judicial Committee of the Privy Council was the final court of appeal for everything from the tribal tribunals of the South Seas to the Sharia Courts of parts of British India, always applying whatever legal system was at issue at the time. One might add that there will therefore still have to be Law Lords, since several Commonwealth countries retain the right of appeal to that Committee. It is just that they will have no jurisdiction in the country in which they meet.
As much as anything else, at least this Court will be made of proper judges, whereas most of those who sit on the bench of the European Court of Justice are career politicians, sometimes with law degrees, but very often without even that. Yet from that bench may be struck down any enactment or judicial ruling anywhere in the EU, including Scotland. To accept and even welcome this state of affairs while objecting to the Supreme Court on purely Nationalist grounds is an eye-watering example of swallowing the camel but straining at the gnat.