The position in the UK - the UK does not do this. There is no written document and no formal separation of the powers. It is a constitutional monarchy, in which all governmental power originally was exercised by the King and his Council. The UK constitution has been formed incrementally, with restrictions on the powers of the monarch coming about as a result of negotiation or force. A pivotal point was 1688, when the Bill of Rights negotiated as the foundation of the settlement of the Crown and succession on William of Orange provided for the supremacy of laws passed by Parliament, the independence of Parliament and the restriction of the monarch’s power to pass laws by prerogative. However, the separation of the legislative, executive and judicial functions of government is incomplete, and some commentators have suggested that this means that while the UK constitution includes a number of ‘checks and balances’ it is inaccurate to apply the theory of separation of the powers to this country. Others, such as Munro (Studies in Constitutional Law, 1999) have suggested that these checks and balances are in fact simply a British version of the theory. This approach has been adopted by senior judges, for example Lord Mustill in R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995]:
‘It is a feature of the peculiarly British conception of the separation of the powers that Parliament, the executive and the courts have each their own and largely exclusive domain.’
And Lord Diplock, in Duport Steel v Sirs [1980]:
‘it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them’.
Examples of incomplete separation – the Queen formally summons Parliament; the Queen gives royal Assent to parliamentary Bills before they become law; the executive is part of the legislature (government ministers are always members of one or other House of Parliament); senior judges are members of the legislature; the Lord Chancellor is a member of all three branches of government – senior judge, head of the judiciary, government minister, member of the Cabinet and chair of the House of Lords when it sits as a legislature. Judges are chosen by the executive (Prime Minister and Lord Chancellor) (although they are protected by statute from dismissal at the whim of the executive – s.11(3) of the Supreme Court Act 1981 requires an address presented to the Queen by both Houses of Parliament).
How important is the doctrine? – The above quotes from judges indicate that the judiciary consider it very important. It is generally deemed to be an essential part of the fundamental constitutional value of the rule of law, since the executive cannot properly be held accountable under the law unless the judiciary is sufficiently independent to be able to judge it to be in error and make orders accordingly, as for example in M v Home Office [1992] where the House of Lords held the Home Secretary to be in contempt of court for disobeying a court order. This case suggests that the judiciary in the UK is indeed sufficiently independent and exercises that independence robustly. However, in recent times, the lack of a formal or functional separation of the judiciary from the executive has begun to cause problems, partly because of the Human Rights Act 1998.
The growing importance of formal or functional separation – Article 6 ECHR – ‘an independent and impartial tribunal established by law’. Lack of clear functional separation in the UK has led to problems, eg
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Home Secretary playing a part in the ‘judicial’ function of fixing the sentence of a murderer: R (Anderson) v Secretary of State for the Home Department [2002] (HL);
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Deputy Bailiff of Guernsey granting planning permission as a member of the legislature and then hearing a subsequent appeal: McGonnell v UK [2000] (ECHR);
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Appointment of temporary sheriffs, who might be recalled or not have their contracts renewed: Starrs v Ruxton [2000] [JC]
The way ahead - UK Government has already announced plans to abolish the office of Lord Chancellor, stop the Lords of Appeal in Ordinary from being members of the legislature, and establish a separate Supreme Court. This may go a long way towards a formal separation of the executive and the judiciary. No such plans exist to address the lack of formal separation between executive and legislature, which continues to be governed largely by constitutional convention rather than law.
