There is no absolute separation of powers in this country, in a variety of important ways ideas of the separation of powers have shaped constitutional arrangements and influenced our constitutional thinking, and continue to do so" Discuss.
"While we must grant that there is no absolute separation of powers in this country, in a variety of important ways ideas of the separation of powers have shaped constitutional arrangements and influenced our constitutional thinking, and continue to do so." Discuss, including consideration of relevant caselaw.
The separation of powers is at the heart of a democratic constitution as it ensures that no one body accumulates too much power as to simply dictate to the people, as Lord Acton said 'Power tends to corrupt and absolute power corrupts absolutely' Although within the UK the separation of powers is not as clear as in other liberal democracies, it does still influence the everyday operations of the executive, legislature and judiciary1. As Barnett argued 'Separation of powers...runs like a thread throughout the constitution of the United Kingdom'2 The principle of the separation of powers assumes that certain functions should be carried out by different institutions and that no one institution should trespass into the territory of another. As Montesquieu argued 'All would be lost if the same man or the same ruling body...were to exercise these three powers'3 This interpretation of the separation of powers has been put into effect in the vast majority of liberal democracies around the world with the likes of the USA and Japan adhering to the orthodox understanding of the separation of powers. However, in the UK, it is clear that there certainly is not a clear separation between the branches of the State4, but rather a fusion, as the executive carries out functions which should be completed by the legislature such as making delegated legislation. The making of procedural rules governing judicial process is an example of law making by the judiciary rather than by the legislature and the fact that the courts obtain their power from the Crown shows that within the UK, there is a clear overlap of functions between the agencies, which should be strictly separated according to the notion of the separation of powers. The concept of the separation of powers assumes that not only the functions of the three branches of the State should be distinct from one another but the personnel of these agencies should also be different and yet in the UK, there is a clear fusion of personnel within the system of government. Members of the executive sit within the legislature as do some members of the judiciary and most intriguing of them all is the position of Lord Chancellor who sits in all three branches.
The doctrine of the separation of powers supposes that these three bodies should have equal authority and should act as a check and a balance upon the other bodies, which does not seem to be the case in the UK system of government because the executive controls the legislative path in the House of Commons due to them having an overall majority in Parliament and the judiciary does not have the power to strict down Acts of Parliament as unconstitutional. R v Secretary of State for Home Department, ex parte Fire Brigades Union5 illustrates the weakness of Parliament ...
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The doctrine of the separation of powers supposes that these three bodies should have equal authority and should act as a check and a balance upon the other bodies, which does not seem to be the case in the UK system of government because the executive controls the legislative path in the House of Commons due to them having an overall majority in Parliament and the judiciary does not have the power to strict down Acts of Parliament as unconstitutional. R v Secretary of State for Home Department, ex parte Fire Brigades Union5 illustrates the weakness of Parliament in checking the powers of the executive, when it was left to the courts, rather than Parliament to settle the issue challenged by the Fire Brigades Union.
Unlike the vast majority of countries, the UK never underwent a lasting revolution, such as America, Russia or France and therefore there has not been a need to establish a new constitution. This has led to the UK's constitution developing and evolving over time in relation to social needs and the separation of powers has not been incorporated specifically into the constitution. After a revolution, a written document is usually produced in order to clarify and certify certain rules and regulations governing bodies within the State, one of these being the separation of powers. The separation of powers has not been clearly set up in the form of a written document in the UK which arguably increases the chances of tyranny, as Madison, one of the authors of the Federalist (1787-88) argued 'The accumulation of all powers, legislative, executive and judiciary, in the same hands...may justly be pronounced the very definition of tyranny'
As the UK's system of government does not mirror a system in which the separation of powers is strictly implemented, it could be argued that following Madison's theory; the UK would be a country of tyranny. However, this is simply not the case because the notion of the separation of powers does have a strong and imbedded influence over constitutional arrangements in the UK, even if it does not apply in the sense it does in other liberal democracies that emulate the strict definition of the separation of powers. As the British constitution had been established by the seventeenth century6, the concept of the separation of powers must be a seventeenth century one. Colin Munro considers the overlapping of the functions carried out by the three branches, but he also places strong emphasis on the restrictions of these overlaps. He puts forward the view that while the law lords possess legislative powers, they do not freely use them and although all members of the Cabinet must sit in Parliament, there is a cap on the number of ministers within the government7. Munro's conclusion is that 'we must grant...that there is no absolute separation of powers in this country...in a variety of important ways, ideas of the separation of powers have shaped constitutional arrangements and influenced our constitutional thinking, and continue to do so'8
There are certain written documents within the uncodified UK constitution such as the Magna Carta (1215) and the Bill of Rights (1689), which satisfy a degree of separation of powers. The Magna Carta limited a number of the powers of the Crown to raise various forms of revenue, both through its powers over land and through taxation, 'except by the common counsel of our realm'9, showing that even in the 13th Century, the doctrine of the separation of powers was influential within the British constitution to a certain extent. The UK's constitution has been extended to incorporate European legislation since its accession to the European Community in 1972, which has increased the number of checks and balances upon the executive, judiciary and legislature. The incorporation of the Human Rights Act into UK law in October 2000 has strengthened the position of the judiciary in that it can now quash an administrative action on human rights grounds, as can be seen in R. v Secretary of State for the Home Department, ex parte Daly10 and V and T v United Kingdom11 The incorporation of the Human Rights Act into UK law has given the judiciary the power to issue a 'declaration of incompatibility' of Acts of Parliament with European law. This is evident in Factortame, a series of cases spanning 10 years. The courts still cannot declare an Act of Parliament as unconstitutional12, which supports the theory of the separation of powers, as the judiciary cannot trespass into the territory of the legislature. However, this does raise the question of the powers of the legislature as can be seen in Burmah Oil Co Ltd v Lord Advocate13 when Parliament simply by-passed a court decision by enacting new legislation. The judiciary does check the powers of the executive as can be seen in M v Home Office14, when the Home Secretary was found, for the first time in legal history, to be in contempt of court, demonstrating that even Ministers of the Crown are accountable to the law. This ensures that individual members of the executive do not exceed their role within the constitution15, which strengthens the argument that the principle of the separation of powers is inherent in the UK constitution.
The doctrine of ministerial responsibility16 ensures that Cabinet members are responsible to Parliament and the relevant departmental select committee, which results in ministers being subjected to extensive and stringent questioning in Parliament. It is argued therefore that the English vision of the separation of powers actually requires ministers to also be members of the legislature as it allows Parliament to hold the Crown's government to account. It is evident that the separation of powers has influenced constitutional thinking as although the fusion of the executive and the legislature is a breach of the traditional version of the separation of powers, it actually supports the separation of power within the UK system. Other constitutional conventions such as that of appointing senior judges 'during good behaviour' ensures that the executive or legislature do not trespass into the territory of the judiciary. Although it is not written down that senior judges will only be removed by a vote in both Houses for obscene altercations, it is accepted by all that this will be the case. The separation of powers does apply therefore within the UK, largely in the form of constitutional conventions, rather than codified documents.
The UK constitution does not include an absolute separation of powers because the functions and personnel of the three branches of the State overlap, but rather there is a fusion of powers between them. Eighteenth century theorists in France and America formulated the traditional account of the separation of powers, but the English constitution had already been formulated by this time and the separation of powers had not developed in the same way that these theorists set out. However, the concept of the separation of powers is inherent within the UK system of government largely due to the acceptance of constitutional conventions. Parliament could legally enact legislation that transfers the power to decide disputes away from the courts and more to administrators, but it does not. Judges could make radical changes to the law rather than incremental ones but, on the whole, they do not, which is due to imbedded constitutional conventions which themselves are shaped by the principle of the separation of powers.
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The three institutions distinguished by Montesquieu, 'The Spirit of Laws' (1748)
2 Barnett 'The separation of powers' Chapter 5
3 'The Spirit of Laws', Book XI, ch 6
4 The meaning of the word 'State' has been called into question. Chandler v D.P.P [1964] AC 763
5 [1995] 2 AC 513
6 With the Bill of Rights (1689) and the Act of Settlement (1700)
7 House of Commons Disqualification Act 1975
8 Munro, n.6 at 328-332
9 Magna Carta (1215), cap 12
0 [2001] 2 AC 532 - It was submitted that the examination of legal correspondence in a prisoner's absence was not authorised by the Prison Act 1952 s. 47(1) and constituted a breach of the Human Rights Act 1998 Sch. 1 Part I Art. 8(1).
1 [1999] 30 EHRR 121. It was found that the fixing of a tariff by the Home Secretary for prison sentences was contrary to Article 6 (1) on the European Convention on Human Rights (right to a fair trial)
2 Pickin v British Railway Board [1974] AC 765
3 [1965] AC 75
4 [1994] 1 AC 377
5 The Crown itself cannot be found to be in contempt of court
6 This constitutional convention has been stretched recently as can been seen with Stephen Byers (Transport secretary) refusing to resign initially.
James Moore