To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers?

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Constitutional and Administrative Law Coursework Assignment

To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers?

In addressing this question, it would be useful to explain just what the doctrine of the separation of powers consists of. The concept of the separation of powers goes back to the time of ancient Greece however it only came to be considered as a real 'grand constitutional principle' when the French theorist Montesquieu wrote 'L'Esprit des Lois' (The Spirit of the Laws). In this work, there was an argument for a strict separation of powers, that is the legislature, the executive and the judiciary. So in other words, the power to make the law, the power to govern the state and the power to apply and interpret the law should be separate for the protection of the liberties and freedoms of the individual.

  Montesquieu justifies his view and this is effectively shown by several passages of his work. 'When legislative power is united with executive power in a single person or in a single body of magistracy, there is no liberty'. The reasons given by Montesquieu for this was that the holder of that power, whether it is an individual or a group can create tyrannical laws and then exercise them in a tyrannical manner. He also said, 'Nor is there liberty if the power of judging is not separate from legislative power and from executive power'. The reason for this is that the joined power, that is the legislature and the judiciary would be arbitrary over the life and liberty of its citizens, or in the case of executive and the judiciary, the judiciary would have the power and force of an oppressor. So with this information, is it possible for an answer to be found?

   If this question had read 'Does the United Kingdom constitution have a strict separation of powers' then the simple answer would be, no it does not. The Oxford Dictionary of Law provides that ‘The doctrine that the liberty of the individual is secure only if the three primary functions of the state (legislative, executive, and judicial) are exercised by distinct and independent organs’. In the UK this is not the case and the reason for this lies in the overlap of the three functions, of which there are many examples. For example, the law lords sit on the appellate committee of the House of Lords and the judicial committee of the Privy Council. This overlaps the legislature at the judiciary as the House of Lords is also part of a legislative body. According to Parpworth, the most commonly cited overlap that supports the argument that there is no separation of powers in the UK constitution is that of the position of the Lord Chancellor. He is a member of all three functions, a member of the House of Lords in it's legislative role, the head of the judiciary and a cabinet minister and therefore also a member of the executive. However, the question reads 'Is the UK constitution based on a separation of powers', based being the operative word in this case. This is a far less clear-cut issue.

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   Professor Munro noted that two opposing camps have been established in the debate of whether or not the UK constitution is based on a separation of powers. The first camp is comprised of academic writers on constitutional law, in which the general consensus is that there is no separation of powers. It has been suggested by Professor Barendt that academics in general have given very little regard to the doctrine of the separation of powers, and their treatments of it 'tend to be either brief or dismissive'. The opposing camp in the issue is the judiciary. Senior judges ...

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Good, sustained argument. In order to improve this essay, the student should focus on case law, and use the arguments developed there as a frame for his/her response. Reference should be made to questions raised over whether we have separation of powers, versus evidence of separation - absence of bias (e.g. Dimes), the fact Lords of Appeal in Ordinary rarely speak or vote except on legal matters etc. 3 Stars.