The Question "Is The Separation Of Powers In The United Kingdom Constitution Myth Or reality?" Can No Longer Be Posed Once The Constitutional Reform Act Has Received Royal Assent

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Jessica Elias

The Question “Is The Separation Of Powers In The United Kingdom Constitution Myth Or reality?” Can No Longer Be Posed Once The Constitutional Reform Act Has Received Royal Assent

During the case of Duport Steels v Sirs (1980) Lord Diplock stated that ‘the British Constitution is firmly based upon the separation of powers’, if however, adherence to this concept was accordingly clearly apparent in our constitution, why then has the question of its realism ever been posed?

This essay will attempt to establish the extent to which conformity of the doctrine of the separation of powers has been adopted in the United Kingdom constitution and thus determine if the passing of the Constitutional Reform Bill will adjust current procedures to adhere flawlessly to this doctrine.

 

The separation of powers is a doctrine that divides the working of a constitution into three distinct branches of executive, legislature and judiciary.  The origins of the doctrine date back to the 3rd century BC when Aristotle identified the three elements of the state.  In The Politics, he proclaimed that:

‘There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements.  The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.’

However, separation of powers in England can be traced back to the reign of King Edward I (1272-1307).  FW Maitland stated:

‘In Edward’s day all becomes definite – there is a Parliament of three estates, there is the King’s Council, there are the well known courts of law.’ [1908, p 20]

The eighteenth century philosopher Montesquieu published his book, De L’Esprit des Lois, in 1748 advancing the view that the best foundation for individual liberty and good governance is to separate the three branches of government.  The three branches of government will have distinct functions and none will be powerful enough to dominate the others.  Montesquieu believed that this formula applied to the English constitution of his time; however, the theory served more to influence the foundations of the United States constitution, which does apply the doctrine pragmatically.  A member of the United States Congress is forbidden, for example, to be a member of the United States government: art 1, s6 of the United States Constitution.

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It may be asked, what then is the relevance of this doctrine to the United Kingdom, when it is clear that the British Constitution is characterised by the blending of the executive and the legislature?  It is unusual, as a result of constitutional convention, for a member of the executive not to be a member of the legislature.  Walter Bagehot in his classical work The English Constitution (1867) describes the constitution as displaying ‘the close union, the nearly complete fusion of the executive and legislative powers’ when describing the cabinet.  However, the relevance of the concept of the separation of ...

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