The doctrine of the separation of powers is an example of constitutionalism. This doctrine can be traced back to Aristotle (384-322BC).
"If...the separation of powers is a fundamental principle of a liberal constitution, its weak status in the United Kingdom brings out much of what is inadequate in the present arrangements - their failure to impose significant checks on the conduct of government."
Discuss.
Barendt; An introduction to Constitutional Law.
The doctrine of the separation of powers is an example of constitutionalism. This doctrine can be traced back to Aristotle (384-322BC). There are three elementary and key functions that are needed for the organisation of any independent state. These three powers are legislative power, which deals with enacting general laws, executive power concerned with policy making affairs and law enforcement and finally judicial power, which deals with settling disputes arising out of the application of the law. The basic idea of this doctrine therefore, is to maintain political liberty and limit the powers of government by separating the agencies from whom these powers are exercised, i.e. the legislative, the executive and the judiciary. They should be kept separate from each other and act as a check and balance on each other, or there is a risk of tyranny. Montesquieu (1689-1755) especially argued this as he firmly believed that the concept of the separation of powers tries to combat tyranny. Therefore, the essence of the doctrine is that it should have a good balance between the three powers, none should have excessive power and there should be in place a system of checks and balances between the institutions.
This is the basic idea of the doctrine and it seems to make sense on the face of it, but is it really so simple? Why does it have a weak status in the United Kingdom, and why is it said to have failed to impose significant checks on the government? Are the separate functions, which are allocated to the different bodies, kept separate? In order to draw up an accurate conclusion to this question, one has to examine the relationship between the legislature and the executive, and the executive and the judiciary. Whilst examining the two relationships, three significant questions will be posed to each. These are
) Do the same persons or bodies form part of more than one of the three organs of government?
2) Does one organ of the government control or interfere with the work of another?
3) Does one organ of the government exercise the functions of another?
The answer to all these questions should be no if a correct balance of the doctrine has been maintained and if the basic idea of separation has been established.
Firstly we will be looking at the executive and the legislature...
The distinctive element ...
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) Do the same persons or bodies form part of more than one of the three organs of government?
2) Does one organ of the government control or interfere with the work of another?
3) Does one organ of the government exercise the functions of another?
The answer to all these questions should be no if a correct balance of the doctrine has been maintained and if the basic idea of separation has been established.
Firstly we will be looking at the executive and the legislature...
The distinctive element of the parliamentary system is that ministers who appoint the executive are chosen and removed by parliament and they must be members of the parliament. Bagehot (1867) regarded this as 'a fusion between the executive and the legislature, and this was the driving force of the constitution. It enabled a strong government to get its way as well as allowing parliament to get rid of a weak or bad government. However, this means that the answer to question one is yes. Ministers are members of House of Parliament. They have a responsibility to the Parliament for their acts as ministers. However, there is some separation. No more than 95 ministers can be members of the House of Commons, this helps to sustain the separation of powers by preventing government from filling the Commons with 'free-loaders'
Also certain levels of government employees cannot be members, for example, civil servants. This is to ensure that a strict separation of membership is maintained between the executive and legislature.
2) Does the legislature control the executive, and vice versa? On the one hand, the Commons ultimately controls the executive since it can remove a government, if it can't command a majority on an issue of confidence. However, on the other hand, as long as the Cabinet maintains the confidence of the Commons it can exercise its voice in the work of the House. In 1978 the Select Committee on Procedure concluded that
'the balance of advantage between Parliament and Government in the day to day working of the Constitution is now weighted in favour of the Government to a degree which arouses widespread anxiety and is inimical to the proper working of our parliamentary democracy. (1)
(3) Do the legislature and executive exercise each other's functions? The answer to this is also yes! The executive exercise legislative functions when they delegate legislation. The Parliament can delegate legislative powers to the government as much as they want, as long as the main principles are laid down in the Act of Parliament. Ministers and departments being able to implement the Act by making regulations is very beneficial. However it is very important that there are parliamentary procedures which inspect the use made of delegated power.
Now we shall be looking at the relationship between the executive and judiciary.
(1) Do the same persons form part of the judiciary and the executive? Firstly, the Queen's courts have judicial functions, which are exercised by the judges; this shows a clear lack of separation between the two organs. Moreover, the Judicial Committee of the Privy Council is an executive organ in form, but actually an independent court of law. The Lord Chancellor is also a major controversial issue, often described as a 'walking contradiction of the separation of powers'. He is appointed by the Prime Minister but has no security of power. He is a member of the cabinet and heads the executive department, dealing with the court system. Hence, he is responsible for judiciary appointments. He also arbitrates over the House of Lords but unlike the speaker, he has no disciplinary power. He is also a member of the Appellate Committee of the House of Lords.
The law officers of the Crown, the Attorney General in particular have duties of enforcing the criminal law. They are members of the government and its chief legal advisor, and this enables them to consent to many kinds of prosecutions. They also have the power to bring legal proceedings against public authorities on behalf of the public interest. It is important to remember that these law officers are members of the executive and are not judges.
However, it has been argued by successive Lord Chancellors and Attorneys, that 'eminent public figures can by definition be trusted so that a formal separation of powers is not required.'
(2) Does the executive or the judiciary control one another? This is where the element of judicial review needs to be addressed. Judicial review is a way in which the courts try to 'draw a line between the legality of a government action and what they're trying to police, and the merits of government action which is a matter for the police.' Basically it is designed to keep the persons or bodies within their own sphere of their powers given to them by parliament. This implies judicial supremacy over the executive as it means that the judiciary's role is to keep a check on the executive.
However, judges must have regard to the concept of separation of powers when they apply judicial review in administrative law.
(3) Do the executive and the judiciary exercise each other's functions? Many disputes arising out of the public services today are not decided by litigation in the ordinary courts but are transferred to tribunals for decision. However, although tribunals carry out their work independently of the departments concerned, there are nevertheless many matters, which don't go to tribunals but to government departments and ministers for decisions. It is difficult to distinguish between the decisions that should be entrusted to the courts and tribunals, and the decisions that should be entrusted to other administrative authorities. The separation of powers is also not very helpful in determining how to settle particular categories of disputes.
In gouriet v Union of Post Office Workers, the House of Lords reinstated the distinction between executive responsibility for enforcing the criminal law and the judicial function, and denied that the civil courts had any executive authority in criminal law. (2)
Also in M v Home Office, Nolan LJ gave a perceptive summary:
'The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province and that the executive will respect all decisions of the courts as to what its lawful province is.' (3)
To conclude, there is no formal separation of powers in Britain, since there is no written constitution. Therefore, there can be no breach of the doctrine. Both the functions of the legislature and the executive are closely linked and there are ministers in both, but they are nevertheless still part of the doctrine of separation of powers. Although the framework of the system is believed to have resulted in an 'unbalanced' constitution kept in place by an untidy and imperfect set of checks and separations, this doctrine nonetheless, plays an important role in the UK constitution. One cannot deny the relevance of such a system when it offers the judiciary a protective device, both for the protection of the independence of the judiciary and against allegations of judiciary intrusion into matters more appropriate to parliament or the executive (Barnett). One also cannot deny that within a system of government based on law, the constitutional structure between the primary functions of law making, law executing and law adjudicating must be distinguished. The doctrine is a respected principle; it is just the classification of the powers of government into legislative, executive and judicial powers, which needs more work on. Therefore the doctrine of the separation of powers may have a weak status, it may be highly inadequate and it may fail to impose significant checks on the government, but regardless of that, it cannot be completely written off. Without the distinctions and the separations, the concept of law itself is hardly likely to survive!
Word Count: 1666
(1) HC 588-1 (1977-1978), p viii.
(2) [1978] AC 435; ch 30
(3) M v Home Office [1992] QB 270, 314
