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 have expressed, on numerous occasions, the opinion that the UK constitution is actually based upon a separation of powers.
The argument against the opinion that there is a separation of powers in the UK constitution appears to be based around a rigid interpretation of the doctrine. It is not difficult to find examples of violations of the doctrine. For instance, the doctrine provides that the judiciary should not have a law making power. However, judges in a sense do have a law making power as they can develop the common law. This, along with many other examples, of which there are too many to list at this point provide a compelling argument against the idea that a separation of powers exists in the UK constitution. In an article on the separation of powers, UK Politics Brief online says that ‘The principle clearly does not apply in the UK system since the executive is formed from the legislature and the most senior members of the judiciary sit in the Lords. The head of the judiciary, the Lord Chancellor also is a member of all three branches of government since he is in the Cabinet, Lords and heads the judicial system.’ This is a useful summary of the argument against the idea.
The opposing camp in this debate consists mainly of the judiciary. They argue that the UK constitution is based on a separation of powers. Numerous senior judges have expressed this opinion, one of which being Lord Diplock in Duport Steels Ltd v Sirs (1980). He stated, ‘… at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized the British Constitution, though largely unwritten, is firmly based on the separation of powers. Parliament makes the laws, the judiciary interpret them’. This is a very important point and is linked in with the idea of Judicial Independence. The judiciary itself has several safeguards which protect itself role of impartiality and help to ensure a fair and unbiased dispensing of justice. For example, judges have the security of tenure, which means they will stay in office, on the condition of ‘good behaviour’ and can only be removed if they receive a criminal conviction or under the mandatory resignation rule, which requires judges of the age of 70 to retire, unless it is decided that it is in the public interest for the judge to continue working until the age of 75. Another example would be their remuneration security, which protects judges from salary reductions resulting from government action. However, just how important is judicial independence to the argument that the UK constitution is actually based on a separation of powers?
While most would agree that the judiciary itself is the weakest of the three powers in the UK constitution, it nevertheless has significant power in performing checks and balances, particularly on the executive. This also ties in with the principle of legality and the judiciary is has an extremely important role in maintaining it. The principle of legality, which emerged from Entick v Carrington (1765) states that no-one can infringe on the rights of a private citizen unless they have some legal justification for doing so. This would naturally be targeted mainly at the executive, whom is most likely to carry out such an action. This function can be paralleled with the constitution in the United States, in which there is a clear and distinct separation of powers, the idea of which is to strictly regulate and control the power of the legislature, executive and judiciary. However, while this is a useful and undoubtedly important function which assists in maintaining the liberties of the individual, is it a good enough point in support of the opinion that the UK constitution is based on a separation of powers?
Clearly judicial independence is an element of the doctrine of the separation of powers but how important and useful is it really? Lord Steyn argued that the judiciary is the least dangerous department of the government. Is it enough of a safeguard against abuse of power in a system with many overlaps between the legislature and the executive? Liyanage v R (1967) demonstrates just how much of a danger that a lack of separation of powers can pose towards the liberties of the individual. The very basis of the Privy Council’s declaration that the retrospective legislation in Ceylon was invalid was based on the importance of the separation of powers. The doctrine of the legislative supremacy of parliament is arguably the single most powerful factor which both weakens the power of the courts to act as a safeguard against abuse of power in the legislature and which contradicts the whole premise of a separation of powers in the UK constitution. On this basis, it can be difficult to argue that the judiciary is enough of a safeguard to constitute a separation of powers. However, can it be said that it constitutes a partial separation?
While this idea might seem like all too much ‘sitting on the fence’, it can solve the much less than straightforward debate over which clear-cut answer is correct, if any. We know for sure that it is impossible to argue that the UK constitution has a strict separation of powers. While overlaps do occur, it is quite possible to argue that these are controlled and regulated by conventions, practices or habits. For example, although the Law Lords sit in the House of Lords in its legislative capacity, they usually refrain from participating in debates or voting on motions which are clearly party-political. Safeguards such as this, coupled with what appears to be a strict separation between the judiciary (except in the case of the Law Lords) and the other two powers are strong arguments in favour of the statement that the UK constitution is actually based upon a partial separation of powers. It is sometimes said that the separation of powers applies in the United Kingdom as a principle, which guides the formulation of rules regarding particular situations. Bagehot wrote in ‘The English Constitution’ (1867), that the reason the UK constitution is, in his opinion, successful, is the ‘balanced union of three powers’. So in other words, it is a system with overlaps, which is controlled by checks and balances. This could be seen as a partial separation of powers.
To summarize, it is certain that the UK constitution is not based on an absolute separation of powers, there are too many overlaps between the three powers and therefore this cannot be the case. However, saying that the UK constitution is not based at all on a separation of powers would also be inaccurate. Judicial Independence is at least one element of the doctrine. It would be more accurate to say that the UK constitution is based on the principle of the separation of powers due to the checks and balances and safeguards used in order to prevent abuse in the legislature, executive or judiciary. Therefore it can be argued that the UK constitution is based upon a partial separation of powers.
Bibliography
Constitutional and Administrative Law – Pollard, Parpworth and Hughes
Constitutional and Administrative Law – Neil Parpworth
Constitutional and Administrative Law – Helen Fenwick
UK Politics Brief Online
Oxford Dictionary of Law Word Count : 1820