It cannot be too strongly emphasized that the British constitutionis firmly based on the separation of powers. (Lord Diplock in Duport Steels v Sirs[1980]). Discuss.

Mark: 70

‘It cannot be too strongly emphasized that the British constitution…is firmly based on the separation of powers.’ (Lord Diplock in Duport Steels v Sirs[1980]). Discuss.

There are several ways of approaching the concept of the separation of powers. One way is to look at it “purely,” envisioning three distinct branches of government – legislative, executive, and judicial – that are allocated to different persons or bodies, and are mutually exclusive in the functions they perform. Montesquieu believed that stringently separating the three branches is the best way to avert abuse of power. If we believe that the current state of government in the UK is constitutional, then we will not by any means find a pure separation of powers. Another way to view it is termed the “partial separation theory,” where the main point is the “avoidance of concentration of power”; powers are roughly separate, but each branch can “check and balance” another by either having some of the functions of that branch, or by being able to review its actions. This is closer to the truth, although most functions that cross the boundaries are clearly due to efficiency rather than attempts to avoid abuse of power. The separation of powers doctrine, in both of these forms, has had a substantial influence on the UK constitution, especially on judicial independence. But it is not unified, clear, or enforceable enough to form a constitutional base.

The main principle dominating the UK constitution of the 18th century was that of the balanced government, where each branch was drawn from three social classes – the wealthy commoners, the aristocracy, and the monarchy. They shared in the performance of several functions; for example, the Commons, Lords, and King all participated in the enactment of legislation. The resultant friction was what stopped each branch from getting excessive power – in essence, a partial separation of powers. With the rise of democracy and the mass party political system, the balance slowly eroded due to a continuing disenfranchisement of the King and the House of Lords. It was a just evolution approaching closer to the elusive concept of democracy.

Nevertheless, this evolution disturbed the balance of power between the branches, initially handing almost all power to the House of Commons. Is there separation of power, in either the pure or partial sense, between the contemporary legislative and executive branches? There is a limited pure separation of functions. It is a recognized and constitutional duty of Parliament to legislate, and that of the executive branch to implement legislation. But the boundaries are often blurred, disallowing a pure separation of powers. Statutory instruments, such as Henry VIII clauses, frequently permit government to legislate. Likewise, the ability of Commons to vote on certain decisions that are entirely governmental seems to infringe on executive powers (but support the “partial” theory). The very structure of the executive branch, where the ministers are chosen from majority party members sitting in Commons or Lords, prevents an American-style separation of powers. It allows for executive dominance in Commons, where ministers introduce and argue for the majority of bills. The rest of the house argues, makes amendments, and votes, therefore acting more as an “effector” than a legislator. Walter Bagehot calls the “close union, the nearly complete fusion” of the two branches the “efficient secret of the English constitution.” He is driven by the dubious idea that Cabinet is selected from “the very best” of Parliament and can often control it, thereby having the ability to make speedy and effective reforms. Perhaps that is true, but to all things there are costs. In this case, the cost is a partial loss of accountability. As T.R.S. Allan notes in “Law, Liberty, and Justice”: “MPs have become…dependent on voters’ satisfaction with governmental measures, rather than representatives whose task is to constrain the executive by framing general rules…of justice.”

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Paradoxically, the rising control of the executive is coupled with a deeply entrenched principle of parliamentary sovereignty. Dicey in particular is enamored of the idea that “Parliament... has... the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” This would be perfectly fine, were Parliament a truly democratic assembly. The majority party in Commons is the party that got the single largest minority of votes (in the last election, it was 35%). That means that a full 65% of the voters did not want Labour to win. The legislative supremacy of parliament –the legislative supremacy of the governing party, that is – subverts the rule of law and one of its mechanisms (the separation of powers). The fact that no constitutional statute, not even Bill of Rights 1689, is immune from repeal or amendment highlights the precariousness of legislative supremacy. Dicey did not fail to notice the paradox between the importance he placed on the rule of law and the importance he placed on parliamentary sovereignty, but he believed that there was no serious threat of parliamentary abuse because of checks and balances from other factors.

What are those factors? It is unlikely to be the executive branch, for “increase in party discipline and the perception that the electorate votes for a party and its program” discourage disagreements between the main party in Commons and the ministers at 10 Downing Street. It is not the House of Lords; its opinion is influential, but it has no legal control on Commons. A party is often forced to act responsibly and accountably by its opposition and by public pressure. Conventions, however, tend to be the most important checks and balances: the executive’s ability to dissolve (or more importantly, threaten to dissolve) Parliament with the Queen’s guaranteed assent, Parliament’s ability to pass a vote of no confidence and the expectation that government resigns, ministerial responsibility, and many more. “The central part played by conventions in the constitution…of the UK indicates a preference for self regulation by governments and politicians over a system of legal checks and balances enforceable by the courts, which is much more characteristic of modern codified liberal constitutions.” Conventions are for the most part unenforceable by the courts, and can be undone by legislation. While they are important to separation of powers in the partial sense, it’s best to keep in mind that they, too, are not immune and do not afford the same kind of protection the constitution exerts in the USA.

In discussing these two branches at length, we have for a time-being forgotten about the judiciary. Prior to recent constitutional reform, it was often argued that the courts were not independent in the context of the pure separation of powers theory. However, after the abolition of the Lord Chancellor in his previous tri-partite incarnation, the establishment of the Supreme Court to replace the Appellate Committee of the House of Lords, and changes in tenure arrangements, the judicial branch enjoys greater physical separation than ever before. The principle that judges need to be independent from both the executive and the legislature is crucial in upholding the rule of law.

But can the courts make law or decide on matters of policy? Is there a functional separation of the judiciary? It is a fundamental constitutional principle that the legislature makes law, while the judiciary interprets it. Still, there is a significant gap between what legislation can possibly foresee and the multitudinous sea of situations that can occur. It is now generally accepted that judges ‘do and must make law in the gaps left by Parliament’ and that “the development of common law is a constitutional role of the courts.” The judges are constantly concerned with enforcing a statute as closely as possible; but where they have little guidance, they have more license. One such case is Woolwich Equitable Building Society v IRC[1993], where the House of Lords, lacking requisite legislation, developed the principle that a citizen who pays money to an authority in response for an unlawful demand of tax should be able to recover it. The courts, however, will often refuse to rule directly on matters they find clearly non-justiciable, such as foreign policy or the interests of the state.

“If government is to be free to govern it must be permitted an appropriate sphere for the formulation and implementation of policy. But it is equally necessary for the courts – which have neither the democratic ‘mandate’ nor the requisite expertise to intervene on groups of public policy – to exercise supervision to preserve legality.” Therefore, the courts have the power to review executive decisions for consistency with relevant statutes. Judges can rule the implementation of statutory instruments in the context of statute to be unlawful; they can also make decisions on the scope of the executive’s prerogative power. Since the passage of the Human Rights Act 1998, they can declare certain previously governmental functions to be judicial, as in R(Anderson) v Secretary of State for the Home Department[2002]. It is not a direct power, as parliament has the final say on any incompatibilities between the Act and previous legislation. The courts could theoretically be forced to enforce the most terrible ex post facto or ad hominem legislation; they do not have the power of judicial review over legislation, opening the doors for parliamentary contravention with even the most sacred constitutional tenets.

Baron de Montesquieu made an odd interpretation of the British constitution as being based on the separation of powers. But pure separation of powers was never the point. As M.J.C.Vile notes, ‘virtually the whole history of English constitutionalism has been characterized by the recognition of the need for a partial separation of the personnel of government, and a partial separation of the functions of government.’ British institutions enjoy some independence of powers, especially in regards to the judiciary. There are some significant checks and balances in place. When compared with, for example, the United States, Britain falls short. America got a clean start when the ideas of separation were already in place. This country is merely a product of its history of “mixed and balanced” government. Some reforms are being undertaken; for the time being, Lord Diplock’s comment remains wishful thinking.

Barendt, Eric, “An Introduction to Constitutional Law,” 1998, pg.15

There is also something to be said, especially by Barber, about separation as a model of efficiency - the allocation of the correct functions to the correct bodies

Barendt, Eric, “An Introduction to Constitutional Law,”1998, pg.15

Recently used in the Nationality, Immigration, and Asylum Act 2002 and the Legislative and Regulatory Reform Act 2006.

There are significant checks on these powers from both Parliament, which can review and vote on these decisions, and from the courts, which can declare decisions made under statutory instruments ultra vires.

Badgehot, Walter, “The English Constitution”, 1873, pg.48

Colin Turpin and Adam Tompkins, “British Government and the Costitution”, 2008, pg. 102

We are far from Montesquieu’s original principle that the two houses should be able to prevent acts of the other from becoming law

Barendt, Eric, “An Introduction to Constitutional Law,” 1998, pg.44

A possible exception being the Crossman Diaries case

Steyn LJ in R v Brown [1994] 1 WLR 1599, 1604

Colin Turpin and Adam Tompkins, “British Government and the Costitution”, 2008, pg. 113

See Chandler v DPP [1964] AC 763, and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Furthermore, note that it is often quite difficult to distinguish between ascertaining the parties’ legal rights and ruling on policy.

T.R.S. Allan, “Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism”, 1993, pg. 52

See Burmah Oil Company Ltd. v Lord Advocate, [1965] AC 75

Liyanage v The Queen [1967] AC 259

Quoted by T.R.S. Allan, “Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism”, 1993, pg. 50