Do we agree with Lord Diplock's view that the British Constitution is firmly based on the separation of powers?

One of the many overlaps or fusion of powers in the British Constitution is that of the Executive and Legislature. By convention, Ministers are members of legislature, that is, either House of Commons or House of Lords. This is clearly a breach of the doctrine of separation of powers, but it can be rationalised on then basis that it promotes the responsibility of Ministers to Parliament by ensuring that they can be questioned, take part in debates and make statements to the relevant House.

Ministers have numerous powers under statute to enact subordinate legislation, usually in the form of statutory instruments. For example, under s 1 of the Deregulation and Contracting Out Act 1994, a Minister of Crown had the power to amend or repeal any provision made by primary legislation enacted before or during the 1993-1994 session where he was in opinion that its effect was to impose a burden on any person carrying on a trade, business or other profession. The power was exercisable where it was possible to reduce or remove the burden without removing any necessary protection.

Ministers may also have powers under the prerogative (which Dicey defined as ‘every act which the Executive government can lawfully do without the Authority of an Act of Parliament) is exercised in the name of the Crown by and on the advice of the Government (Executive) to issue orders in Council e.g. the case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) whereby the Secretary of State acted unlawfully by not bringing a statutory scheme into force and then established a new tariff scheme under the prerogative. This case shows the abuse of prerogative power. However, the power to make subordinate legislation means that Ministers can create new regulation to deal with unforeseen problems and threats rather than have to find time in the main legislative programme.

To Walter Bagehot, the close relationship between the executive and parliament represented ‘the efficient secret of the English constitution’ which:

.....maybe described as the close union, the nearly complete fusion of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of one constitution lies in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation.

Another example of the fusion is that of the Home Secretary exercising legislative, executive and quasi-judicial functions in that he determines the length of life sentences, deciding the release of life sentence prisoner and setting the tariff for life sentences. A clear indication of this is in the case of Stafford v UKwhere the Home Secretary rejected a recommendation of the Parole board that Stafford, who was serving a life sentence for murder, should be released on licence, on the ground that if released, he might commit non-violent imprisonable offences. Stafford took his case to the European Court of Human Rights (ECHR) where it was concluded that Stafford’s continued detention was dependent on the Home Secretary was a violation of Art 5 (4) of the European Convention which is the right of a detained person to have the lawfulness of his detention decided by a court.

The most glaring breach of the doctrine of separation of powers is provided by the functions performed by the Lord Chancellor. He’s a member of the Executive as head of Lord Chancellor’s Department and therefore, a member of Cabinet. He’s also the head of the judiciary, entitled to preside over the House of Lords when it sits in court. As a member of House of Lords, he’s also a member of the Legislature. As a Cabinet Minister (senior member), he may be dismissed by the Prime Minister, as was Viscount Kilmur in 1962. Some arguments have been made by past Lord Chancellors in defence of the link between the judiciary and Cabinet. For example, Lord Mackay stated that the linkage promotes a realisation that:

…both the judiciary and the executive are parts of the total government of the country with functions which are distinct but which must work together in a proper relationship if the country is to be properly governed. [1994, p 18]

However, this overlaps will no longer exist, as the judicial function of the Lord Chancellor is to be abolished and replaced by a Secretary of State for Constitutional Affairs which means he will not fulfil the judicial function or role of the Speaker of the House of Lords. There is already a temporary exercise where the office of Lord Chancellor gained a temporary reprieve and Lord Falconer of Thornton was appointed as the new Secretary of State for Constitutional Affairs.

The doctrine of separation of powers provides that the judiciary should not have law making power. However, judges in a sense do have a law making power as they can develop common law.

 The ‘declaratory’ theory of precedent – the theory that judges do not make law, but only declare the common law or common customs of the realm – persisted, into the 19th century, but is more generally recognised that the judges in the UK do exercise some law making function, with the intent acquiescence of Parliament.

A striking example of this creative function was the House of Lords decision in Burmah Oil v Lord Advocatewhere the House of Lords held that the oil company had a common law right to be compensated for the destruction of the installation by British forces which were acting under prerogative.This case illustrates how the courts may develop common law in order to take account of new situations.

Equally, however, the courts have been prepared to rely on the doctrine of the separation of powers to justify a refusal to create new rights. Hence in Malone v Metropolitan Police Commissioner. In this case, Sir Robert Megarry VC, declining to recognise any common law right to privacy, stated:

….it’s no function of the courts to legislate in a new field……no new right in the law, fully fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right.... (A judge) has to remember that his function is judicial, not legislative, and that he ought not to use his office to legislate in the guise of exercising his judicial powers.

While most would argue that the judiciary 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 has an extremely important role in maintaining it. The principle of legality, which emerged from Entick v Carringtonwhich states that no one can infringe on the rights of a private citizen unless they have some legal justification for doing so. If the executive goes beyond the restrictions of its authority, whether by acting unjustly or irrationally, then the courts intervene, and a person who claims that he or she has been the victim of a breach of his convention rights under the Human Rights Act 1998 could apply for a judicial review which is a procedure whereby the courts are able to determine the lawfulness of the exercise of the executive power. An example of judicial intervention is the case of M v Home Officewhere the Home Secretary disobeyed the judge’s order to procure M’s return from Paris to the UK for the consideration of his application for asylum and was found guilty of contempt which was made against the Home secretary in his official capacity.

The various overlaps cited above is the argument against Lord Diplock’s view, however, for us to come to decision, the argument in favour of his view of separation of powers in the British Constitution has to be explored.

There have been many debates and arguments as to whether there’s a separation of powers in the UK constitution by the academics and the judges which Professor Munro noted as ‘the two opposing camps’. He said:

the first camp is comprised of academic writers on constitutional law, in which the general consensus is that there is no separation of powers, and Professor Barendt suggested 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 is the judiciary where senior judges have expressed, on numerous occasions, the opinion that the UK constitution is based on separation of powers.

A clear example of the opposing camp’s view is that of Lord Diplock in Duport Steels ltd v Sirs, in which he and many other judges have reflected a strong belief in a pure or absolute separation of powers.

There is obviously some form of separation of powers within the UK, but it is difficult to tell where the separation actually lies, since the concept of ‘legislation’, ‘adjudication’ and ‘execution’ have not been given a clear-cut definition. However, the concept of judicial independence and legislative supremacy of parliament seem to support Lord Diplock’s statement on the separation of powers. A brief summarisation of the doctrine of judicial independence is that the judges can discharge their judicial duties in accordance with the judicial oath and the laws of the land, without interference, improper influence or pressure from any other individual or organisation.Independence of the judiciary helps avoid abuse of power by the executive and legislature, and in the UK this is achieved by offering judges security of tenure under the Act of Settlement 1700, so that they might dispense justice without fear or favour.

The legislative supremacy of parliament also supports Lord Diplock’s view in the law making body that has the right to make or unmake any law whatsoever, and no individual or body has a right to question the legislation of parliament. Not even the courts may question what takes place in parliament, as was stated in the Article 9 of the Bill of Rights 1689:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of parliament.

An evidence of the British courts unwillingness to interfere with proceedings in parliament is in the case of R v Parliamentary Commissioner for Standards, ex p Al Fayedwhere the Court of Appeal held that the actions of the Commissioner in investigating a complaint that the MP had received a corrupt payment was not an appropriate subject for judicial review.

Also, the case of Burmah oil v Lord Advocate demonstrates how easy and flexible it is for the legislatively supreme parliament to overcome an inconvenient judicial decision by creating a retrospective law; in this case the War Damage Act which abolished rights at common law to compensation in respect of damage to or the destruction of property in the name of the Crown during wartime.

In conclusion, it’s clear that Lord Diplock’s view is not quite accurate, as the citation of the different overlaps in the constitution proves that the British constitution is not firmly based on a separation of powers. However, saying that the UK constitution is not based at all on a separation of powers would be inaccurate, as judicial independence and legislative supremacy of parliament are at least two elements of the doctrine that supports Lord Diplock’s view. It would be more accurate to say that the British 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 of power in the legislature, executive or judiciary. Therefore, it can be argued that the British constitution is based on a partial separation of powers.

I HAVE FINISHED THE ESSAY, BUT I HAVEN’T MADE ANY ALTERATIONS YET. PLEASE, E-MAIL ME WITH YOUR RECOMMENDATIONS AND CRITICISMS, IF ANY. I HOPE I’M NOT TAKING TOO MUCH OF YOUR TIME BECAUSE I CAN’T THANK YOU ENOUGH FOR THE PART YOU’VE PLAYED IN HELPING ME (A TERRIBLY CONFUSED AND SCARED 1ST YEAR STUDENT!)

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