However to suggest that the doctrine of separation of powers is thus of ‘no application’ to the British Constitution, could be submitted as being rather exaggerated. Lord Donaldson here repeats the familiar judicial learning on the doctrine of separation of powers; as Lord Diplock said in an earlier case, ‘ the British Constitution, though largely unwritten, is firmly based on the separation of powers: Duport Steels v Sirs (1980). Also one of the main purposes of the House of Commons Disqualification Act 1975 was to simplify the law relating to the involvement of members of the executives in the legislature. As a result the number of government ministers permitted to sit in the House of Commons is strictly limited at 95. Civil servants must resign their post in order to stand for election to the House, The doctrine of the separation of powers is also reflected in the fact that a Member of Parliament, although unable to resign from office, can disqualify himself by taking an ‘office of profit under the Crown’ such as a stewardship of the Chiltern houndreds. .
But again it is important to note not all agree. The late Stanley de Smith wrote that ‘No writer of repute would claim that [the doctrine] is a central feature of the modern British system of government’. It follows that Lord Donaldson’s dictum is based on an assumption: that ‘our unwritten constitution rest upon the separation of powers’.
It is with the officer of Lord Chancellor that the absence of separation of powers is most marked. The Lord Chancellor is a member not only of the government but also of the cabinet. He is chosen by the Prime Minister. The Lord Chancellor has important administrative functions to perform in connection with the judiciary and is responsible for law reform, some of which may be politically controversial. The Lord Chancellor is also a judge and may preside over the judicial committee of the House of Lords. The role of the Chancellor is clearly an infringement of the separation of powers.
A further added element to the relationship between the legislature and the other branches of government in Britain is the idea of parliamentary sovereignty. In other words Parliament is the most powerful institution in the UK. According to A V Dicey, writing in the nineteenth century, this meant: ‘Parliament…has under the English constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament’.
A major concern about Britain’s unwritten constitution is the fact that Parliament is unrestrained. Its sovereignty, as we have seen, means that it can make or unmake any laws without restriction. The danger of this is that one branch of government has ultimate power and cannot be checked by any other branch. This is a further concern, as Britain does not have a bill of rights, which outlines the rights of citizens. Therefore, nowhere are the rights and liberties of citizens clearly laid down. It is Parliaments duty to preserve those liberties, but it can remove them at any time.
A fundamental tenet of western democracies is that judges should be free to apply the law without political interference. This is to ensure that the laws are applied equally to all citizens regardless of their standing in society, their wealth or their political belief. This is the Basis for A V Dicey’s rule of law. According to this theory everyone is equally subject to the law-citizens and government; everyone is equal before the law and entitled to a fair trial presided over by a non-partisan judge. In order to achieve this, judges should be free from political interference and so the political branches of government should be separate from the judicial. Even so in Britain there are infringements of this separation, for example, judges are appointed by the executive branch.
It is not easy to determine the importance of the rule of law to the British constitution. In regards to the first notion it is clear that there are many bodies, which has certain special privileges that an ordinary citizen would not have. For example, the police are given wider powers of arrest under the Police and Criminal Evidence Act 1984 and Public Order Legislation hence more discretionary powers which could place a citizen in a compromising situation. This may question the notion of everyone being equally subject to the law- citizens and governments. In regards to the second notion of Dicey’s rule, (every is equal before the law) one party to litigation may be able to afford a more competent legal advisor then the other, and also Parliamentary privilege prevents MPs from being sued in respect of statements made in proceedings in Parliament, the immunities or foreign diplomats are example.
These examples could undermine the existence of a rule of law in the British constitution.
Article 6 of the Human Rights Act 1998 could preserve certain aspects of Dicey’s theory of the rule of law and the separation of powers. Article 6 states “ in the determination of civil rights and obligations or of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. As we have seen the supremacy of parliamentary sovereignty is great and could infringe on citizens rights but the Human Rights Act 1998 is binding on national law and to an extent reduces parliamentary sovereignty while making rights to citizens more simpler and clearer.
In conclusion, it is submitted that if one had to cite and ascertain the separation of powers in the British constitution and evaluate it, it could be said that the most significant part of the constitution is not the separation of powers, rather parliamentary sovereignty. If we were to accept this, it would now be evident hat the application of the concept of separation of powers already limited in the UK, has been further eroded by the domination of the executive. It can be argued that the strength of Britain’s unwritten constitution can undermine the rule of law and the separation of powers, but some aspect of government do reflect a recognition of its existence. Moreover, the growing significance of judicial review does not suggest that the separation of powers is irrelevant. Judicial review is generally recognised as an important and necessary check on the exercise of official power. Finally referring back to the question of whether under the largely unwritten constitution of the United Kingdom, the separation of powers is difficult to ascertain and evaluate, in theory the separation of power is easy to evaluate but however in practice the separation of powers is undermined and it is that of parliamentary sovereignty and the which does cause it difficult in our system to evaluate it. There are advantages to our system in comparison to the US system, however the citizen’s rights and liberties are at stake in order to achieve this.
It could be said that due to the overlap of the separation of powers, it creates a flexible constitution that can amend with time and technology rather efficiently, but it is particular worrying when the an unelected body such as the judiciary are making law, and if this is the case, Judges are seen as upper white middle class, and may make amends to create laws which may not reflect and also in clued the minority.
Bibliography
- L’Esprit des Lois, Book XI, Chapter 6
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Constitutional and Administrative Law (1985, 5th edition, page 31
- UK Government and Politics, Second Edition, page 9.
- Blackstone’s guide to the Human Rights Act 1998, Pg 76
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Textbook on Adminstrative Law. 3rd Edition, Peter Leyland and Terry Woods
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Public Law, 2nd Edition. Sweet and Maxwell.
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Blackstone’s LLB Learning text, Constitutional and Administrative Law. 2nd Edition.
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Constitutional and Administrative Law, Barnet, 2nd Edition.
WORDS: 1688
L’Esprit des Lois, Book XI, Chapter 6
Constitutional and Administrative Law (1985, 5th edition, page 31
UK Government and Politics, Second Edition, page 9.
Blackstone’s guide to the Human Rights Act 1998, Pg 76
