“It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers” - Consider the extent to which this view is accurate.

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“It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers”

  • Duport Steels V Sirs [1980] 1 WLR 142, per Lord Diplock

Consider the extent to which this view is accurate. Illustrate your answer with reference to decided cases.

        

It is important to realise that the separation of powers is not something which has been drawn up by someone, nor is it a legal theory, but a doctrine, which has continuously been debated about by various academics and judges, having opposing views and opinions about its significance and existence. It is endlessly argued whether the unwritten British Constitution is the starting point of beliefs and principles set by a group of people, which we call the Separation of Powers.

In the UK, there are three main powers that make up the constitution. They are in the form of: -

  • The Legislature – This is parliament. Parliament is the supreme body, which is built up by the House of Lords and the House of Commons and has the function of law making.
  • The Executive – This is the Government. The function of the government is to run the country in the interest of the general public. The Prime Minister, the civil services, the police and other ministers make up the government of a country
  • The Judiciary – The final division of a states’ activity is in the form of the courts. It is their job to apply the law, which the Legislature makes.

By having different bodies performing different functions, it enables each to focus on their own job and so that ‘power is not concentrated in one area’ (AS Level Law, Andrew Mitchell and Minel Dadhania, 2003). It also permits for ‘checks and balances’ to be carried out. One of the main principles of the separation of powers is to prevent the ‘abuse of power’ by not allowing one body to have control over all functions. However, the UK Constitution is not divided into three main bodies, as simply and formally as shown above, because, inevitably, there are overlaps. This means that members of one function also have roles in other parts of the function, which contradicts the meaning of ‘separation of powers’, as this would mean they are not entirely separate. Even though this does disagree with the meaning of the doctrine, it would not be practical for each body only to ‘mind their own business’ and not allow other bodies to help in making decisions or carrying out tasks, as Pollard, Parpworth and Hughes wrote in Constitutional and Administrative Law – Text with Materials (2001) “…it is not possible to find strict allocation of tasks so that law-making functions are carried out only by legislative bodies, judicial functions are carried out only by full-time members of the judiciary, and executive tasks are undertaken only by those who are appointed to office in central and local government”.

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There is a major difference in opinions between academics who write about the UK Constitution and judges who are part of the judiciary as to whether or not the UK system is actually based upon the separation of powers. On one hand, the academics argue that there is no separation of powers, and on the other, the judges say that there is a separation. There are good arguments for both views and I will be discussing some of them.

A French nobleman and parliamentary magistrate, known as Montesquieu, made observations and formed opinions about aspects that he thought ...

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Good, but not enough case law, and some important points overlooked: - the executive controls, and affects legislature by creating peers; - part of the legislature form the executive; and - examples of inteference with the judiciary (e.g. Lord Irvine of Lairg's dismissal for standing up to the Home Secretary, David Blunkett, in defence of judicial independence); - the executive makes treaties; and - the Home Secretary (executive) is no longer involved in fixing life tariffs (on this point, also see: ex parte Doody). On the other hand: - judiciary not involved in inquiries (e.g. judge in question in Jubilee Line Fraud not involved in the investigation); and - the role of the Attorney and Solicitor General. 3 Stars.