It is often said that no reputable constitutional lawyer would claim that the separation of powers is a feature of the UK constitution. Why is this claim made, and is it correct?

The relationship between the legislative body and the executive is certainly one which, under scrutiny, becomes blurred in some areas. Barendt notes that ‘the executive is formed from the majority party in the legislature. Ministers sit in Parliament, so there is no separation of membership of the legislative and executive organs’. This issue is one in which the lack of separation, particularly in the pure sense, is apparent. Despite the fact that legislation is processed and revised within Parliament, the relationship between the executive and the legislature is one in which it is the executive who very often conceives proposed legislation. When this is taken into account alongside the fact that, with a majority in the House of Commons, the executive enjoys a large amount of control over the House by the number of ministers who form part of it, it is very clear that in a lot of cases the legislative body cannot be truly considered to operate irrespective of the executive.  This issue of secondary legislation which is processed by ministers clearly undermines separation in its true form as, whilst the Bills created by the executive are reviewed by Parliament, the process receives less scrutiny. The fact that many MPs are often inclined to vote along with the position of the party elect clearly also undermines the idea of Parliament as an isolated entity. ‘Except on the rare occasions when there is a significant party split, the government effectively controls the legislature’.

It cannot be said however that there is a complete overlap between the two functions. It certainly remains true that measures do exist which attempt to create and enhance the split between the two bodies with the result that, whilst their works overlap in nature and scope, they still act as separate bodies. The House of Commons Disqualification Act attempted to facilitate this defined split by limiting the number of ministers who were allowed to sit in the Commons to 95. Also, whilst there is an issue with the balance of power between the two seemingly in favour of the executive, it must be remembered that this is only dependant on majority control. In addition, the House of Commons always reserve the right to create a vote of no confidence for the fort suspension of the term of a party in government – this last occurred in with the removal of the Callaghan government in 1979. This sort of shared position of restraint and control upon the opposing function is one which though not typical of a separation of powers pattern, certainly creates a position wherein the purpose of separation, to prevent concentration of power, is nevertheless fulfilled.

It is of course of crucial importance that there always remains a split between the judiciary and the executive in order to ‘protect the citizen against unlawful acts of public agencies and officials’. The relationship between the judicial and executive functions is also an interesting one and one which, in recent years, has received a great deal of attention and reform to attempt to recreate a more defined split between the two. This split was redefined as a result of the Constitutional Reform Act, in which the position of the Lord Chancellor became a purely executive one, having previously been straddling both functions to some extent as both a cabinet minister and head of the judiciary. The recognition of this as unconstitutional with regard to separation of power certainly shows that there must be some kind of separation as part of the UK constitution. It was outlined by Nolan LJ that ‘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’. It would seem from the words of Nolan LJ that the judiciary holds a certain sway over the executive in that their decisions are to always be considered independent and unchangeable. In a similar thread to the seemingly mutual balance of power or restraint between the executive and the legislative function, it must be remembered that the appointment of judges is largely influenced by the opinion of the Prime Minister of the executive in recommendation to the Queen. It can, therefore, be viewed again that separation does successfully exists as each body possesses a certain amount of control over the other to prevent any significant supremacy or control.

Similarly there exists an effective balance of power between the judiciary and legislative functions in which again, in principle, no one can take precedence over the other. Within these functions it is clear that a split is crucial as it would be an affront to liberty, as stated by Montesqieu, if laws could be created and selectively enforced by one body. Madison concurs with this and states that there needs to be an effective safeguard against a concentration of power of this kind. This kind of fusion is prevented by rules which do not allow judicial appointments to sit in the House of Commons and so, by extension, to input in the production of the legislation which they interpret. Until 2005, this was certainly the case as Law Lords were allowed to sit in the House; however this was also considered to be unconstitutional and so now the Law Lords sit in the Supreme Court. The Doctrine of Legislative Supremacy effectively denies the courts the right to dispute the validity of any legislation passed by Parliament; it is solely the duty of the courts to interpret and enforce the laws which are passed. Since 1998, however, the courts have possessed the power to declare any Act of Parliament to be inconsistent with the Human Rights Act and so, in effect to deny the validity of the legislative function however they cannot refuse to apply it and must simply refer the case. It can clearly be seen again that, in this case there do exist safeguards and barriers which prevent any significant interchange between the two functions.

It seems clear that within all three relationships there is fusion of powers. Marshall deals with this by stating that ‘it is impossible to define with precision the separate functions of government and consequently to determine to whom their performance should be allocated’. It seems undeniable that, as the broadest goal of these three bodies of effective government of a country is a shared one, there must be some overlap between their individual functions and process. To distinguish a definitive and unchallenged barrier between the separate functions would most likely be to damage their effectiveness. Jennings certainly believes that some kind of fusion is necessary as, for example, judges will be implementing law and so should surely have some sort of interaction with those who create it in order to implement it correctly and effectively. The fact that ‘English commentators are generally reluctant to take the principle too seriously’ seems to be conclusive of a more generally relaxed attitude towards the idea of separation of powers. It is of course still recognised widely that separation is fundamental for the ‘maintenance of democracy’, however it is also accepted that, if the bodies are to co-exist, they must also coincide to some extent. Separation does not necessarily need to equal a strict segregation but should and could perhaps embody just an insurance against any kind of concentration of power in one area. In answer to the question of whether separation of powers is a feature of the UK constitution, it may seem that because of the lack of a codified constitution and strict adherence to a principle that it is not. However, it is unarguable that to some extent the UK is cautious as to the concentration of powers and the potential for tyranny which Montesquieu first discussed and so, in fact, does take steps to separate practically between powers which, by pure nature may overlap slightly.