In 1748, French political thinker, Montesquieu, identified in De l’esprit des lois the three branches of government between which power should be allocated and separated: the executive which takes action to implement the law, defend the nation, conduct foreign affairs and administer internal policies; the legislative which makes law, and the judiciary which applies the law to determine disputes and punish criminals. According to the doctrine the executive cannot make law. Neither can the legislative determine disputes or any of the branches exercise the power of the other. This is in order to protect our liberty as according to Montesquieu:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.
This principle was re-stated by the former Lord Chancellor Lord Mackay of Clashfern in The Constitution – House Of Lords Debate 03 July 1996 vol 573 cc1449-570 when he said:
As is well known, we are unusual in not having a written document referred to as our constitution. That does not mean that we have no constitution. We certainly do. But it is found in the body of convention, common law, case law and statute making up the law of the United Kingdom. Many provisions are statutory: the Bill of Rights and the Act of Union, among many others.
Historically, all power in this country ultimately derives from the Crown: the Government consisting of the Queen’s ministers; the Queen in Parliament as the legislature; and Her Majesty’s judges and magistrates exercising the judicial power of the state. There is separation of those powers—the legislature, the Executive and the judiciary—but they are not contained in water-tight compartments.
Underlying all this is the great doctrine of the separation of powers. The courts do not interfere in the proceedings of Parliament and Parliament does not interfere in the proceedings of the courts. Parliament passes law and the courts interpret it, and so each one is king in his own country.
Nemo Judex In Sua Causa: A Man Shall Not Be A Judge In His Own Cause
If we examine the transcript of the online version of R v Bow Street Stipendiary Magistrate ex parte Pinochet (No 2)  2 WLR 272 we find the following reasoning by Lord Hutton who agreed to the appeal. Lord Hutton states:
I find persuasive the observations of Lord Widgery C.J. in Regina v. Altrincham Justices, Ex parte Pennington  1 Q.B. 549, 552F:
There is no better known rule of natural justice than the one that a man shall not be a judge in his own cause. In its simplest form this means that a man shall not judge an issue in which he has a direct pecuniary interest, but the rule has been extended far beyond such crude examples and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him to approach the trial with the impartiality and detachment which the judicial function requires.
Accordingly, application may be made to set aside a judgment on the so-called ground of bias without showing any direct pecuniary or proprietary interest in the judicial officer concerned. [My emphasis]
A similar view was expressed by Deane J. in Webb v. The Queen (1994) 181 C.L.R. 41, 74:
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case … The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
These established principles of our constitutional law are still being taught today to those studying towards qualifying law degrees. Unfortunately, two recent, seemingly unconnected, cases demonstrate that the doctrine of separation of powers is now viewed as nothing more than a historical inconvenience.
The imprisonment Of Robert Green
The first case concerns Robert Green who has been imprisoned in connection with his campaign for justice for Hollie Greig. Readers will already be familiar with the details although it is worth remembering that at his trial Mr. Green was denied key witnesses for his defence including Dame Elish Angiolini (former Lord Advocate) and that his case was heard by Sheriff Principal Edward Bowen. Historically there have been some questionable tactics employed by Grampian Police.
The Judicial Office for Scotland has published a paper entitled “Judicial Independance”.
Under the subheading “Principle of Separation” this document states:
In order for the decisions of the judiciary to be respected and obeyed, the judiciary must be impartial. To be impartial, the judiciary must be independent. To be independent, the judiciary must be free from interference, influence or pressure. For that, it must be separate from the other branches of the State or any other body.
The Judiciary and Courts (Scotland Act) 2008 enshrines judicial independence in law. It introduces a duty on Scottish Ministers, the Lord Advocate and members of the Scottish Parliament to uphold the continued independence of the judiciary, barring them from trying to influence the judiciary through any special access to judges.
Judicial independence is important for a fair trial, for adjudication of disputes, for respect for decisions and because the judges may have to decide disputes between the executive, the legislature and an individual or the public at large.
Links To Common Purpose
The Northern Lighthouse Board Links Sherriff Principal Bowen, Rt Hon Elish Angiolini To Common Purpose Via Its Chairman Sir Andrew Cubie CBE FRSE.
The Northern Lighthouse Board Meeting Minutes, dated 28th February 2011, records attendees including: Sir Andrew Cubie CBE, Chairman, the Rt Hon Elish Angioini QC WS, Commissioner and Sheriff Principal Edward Bowen CBE TD QC, Commissioner
The website of the Leadership Foundation says:
The Leadership Foundation has appointed Sir Andrew Cubie CBE as the new Chair of the Board. Sir Andrew will take up the role in early October, and his term extends until the autumn of 2014……He is Chairman of the Northern Lighthouse Board, a trustee of Common Purpose and Chair of the Centre for Healthy Working Lives.
According to Page 8 of the Common Purpose International Navigator (Scotland) 2009 brochure the Rt Hon Elish Angioini QC WS, Lord Advocate for Scotland, The Crown Office was a previous speaker at Common Purpose events. This 2009 brochure also tells us that Organisations involved in Common Purpose include: Grampian Police and the Scottish Parliament. It also helpfully lists as previous speakers Mr. George Reid, Presiding Officer, Scottish Parliament; Mr. Paul Grice, Chief Executive, Scottish Parliament and Nicola Sturgeon MSP Scottish Parliament, now Deputy First Minister of Scotland & Cabinet Secretary for Health, Wellbeing and Cities Strategy.
Interrogation of the database of Common Purpose graduates held at the CP Exposed website reveals the following: One graduate with the Procurator Fiscal Service, Stirling; 8 senior officers of Grampian Police and 58 graduates with the Scottish Executive.
In addition, the Scottish Government website contains a press release “Judge and sheriff appointments”, dated 16th April 2010 which informs readers that a newly appointed all-Scotland floating sheriff based in Glasgow is a member of the Common Purpose Glasgow Advisory Board.
If the test in Webb v. The Queen (1994) 181 C.L.R. 41) were applied I would have to ask whether such links gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the trial judge in Robert Green’s case might have been so biased.
The Imprisonment Of Christopher Carter
In brief outline Mr. Carter made application to the High Court Northern Ireland on 14th December 2011 for leave to apply for judicial review to the Supreme Court. His case concerned the introduction of legislation to prohibit the smoking of tobacco in enclosed and substantially enclosed public places. His application extended to over 750 pages and included DVD evidence. He argued that the policy of the law and the legislation itself was drafted outside the UK (by the World Health organisation and supportive NGOs) and therefore conflicted with principles of the British Constitution which included the Treason Statutes. He also claimed that the regulatory measures were not even debated in the Northern Ireland Assembly, which was not sitting at the time, and that the democratic process had been circumvented.
On Monday 16th January, 2012 the High Court of Justice in Northern Ireland certified that it was satisfied that there are no points of law of general importance involved in the decision given on 14th February, 2011 and refused leave for Mr. Carter to appeal to the Supreme Court of the United Kingdom.
Mr. Carter was imprisoned in Magheraberry High Security prison on 29th January 2012. He had faced a 47 day jail term for non payment of fines and costs, although he was released after just three days when his fine was paid following an Internet campaign.
It has been noted that the three Lord Justices who heard Mr. Carter’s appeal were all members of the Privy Council. Furthermore, the legislative Instrument which imposed the Smoke Free Restrictions in Northern Ireland is The Smoking (Northern Ireland) Order 2006 No. 2957 (N.I.20). This Order was approved by the Privy Council held by the Queen at Buckingham Palace on 14th November 2006. Counsellors present included The Lord President of the Council (Rt Hon Baroness Amos), Sir Brian Leveson (now Lord Leveson) and Elish Angiolini.
In such circumstances a fair minded and informed member of the public would surely ask whether individuals who are members of a legislative body (Privy Council) should also be permitted to sit in judgement of transgressors of the legislation that body approves? For as Montesquieu pointed out:
there is no liberty if the powers of judging is not separated from the legislative and executive.
It should be noted that in July 2010, Secretary-General of the United Nations Ban Ki-moon announced Baroness Amos’ appointment to the role of Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator.
Sir Brian Leveson now Chairs the Phone-hacking inquiry where he sits alongside Sir David Bell, former Trustee of Common Purpose. In 2002 David Bell was a Global Compact Advisory Council Member at the United Nations.