The separation of powers is a significant part of the British constitution.

Seema Patel

Question

The separation of powers is a significant part of the British constitution. Montesquieu was the first to address that there ought to be a separation of powers within the United Kingdom. Montesquieu established the principles of the doctrine of separation of powers after he observed the British system in the eighteenth century. He believed “Political liberty is to be found, only when there is no abuse of power. But constant experience shows us that every man invested with power is liable to abuse it, and to carry his authority as far as it will go…To prevent this abuse, It is necessary from the nature of things that one power should be a check on a another”. He is expressing that it is important to the British Constitution that all three organs are separate and domain. The objective of the separation of powers is to provide support for a mixed and balanced government. In the absence of a written constitution there is not a strict separation of powers. This has led to different positions merging. The merging should lead to a balanced government. The principle reason for this flexibility of an uncodified constitution is legislative supremacy. Some may say there is need for flexibility because of modern society. The separation of powers is an effective rule of law. The separation of powers limits and allocates powers to the different institutions. There are three essential bodies; the executive, the legislative and the judiciary. The functions of the legislature and the executive are closely interconnected. There is a need for a system of checks and balances to ensure that the individual bodies do not have excess power. Nevertheless the Parliament, judiciary and the executive do overlap. The overlap of powers lets Parliament make any changes it desires by Act of Parliament and helps to safeguard against arbitrary use of power.

The executive creates and controls the legislature by producing peers. It deals with a broader area than the legislature. It has both legislature and judicial responsibilities and includes the civil service, local authorities, police, armed forces and mainly Members of Parliaments. They are not allowed to taking part in political activities. It is the administrative division of government. The executive has both legislature and judicial responsibilities. The Government failed to notice the distinction between themselves and executive which gave rise to the Fire Brigades Union case. In this case explains the abuse that can occur concerning prerogative power. In this case Parliament had the right to make whatever law they think is necessary.

There is little separation between the executive and the legislature in the UK but a good deal between the legislative-executive and the judiciary. M v Home office illustrates the close relationship between the executive and the judiciary. However it also demonstrates the conflict that can occur. The executive makes laws by means of delegated legislation and drafts bills. Through the whip system it controls the legislature. It is formed by a portion of the legislature in the sense of the Government ministers. Only ministers exercise roles in both Parliament and in the executive. It makes treaties which have a level ...

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The Legislature is the law-making branch of government. Parliament consists of the House of Lords, the House of Commons and the Queen. It has a legally unchallengeable right to make whatever laws it thinks is right and also regulates the conduct of citizens and private organisations. It has some control over the judiciary as it can remove judges. Legislative powers may be granted to executive bodies via ministers, local authorities and the government departments for example. The executive is involved a great deal in the course of new legislation. When judges interpret statutes made by Parliament they are in effect helping with the law making process. Parliament has the power to enforce its own privileges and to punish those who offend against them. This power can however lead them to conflict with the courts. In the case M v Home Office [1976] 2 WLR 73 it was the first time that an executive was in contempt of the courts. This case demonstrated that no one is above the law, not even a member of the executive.

The Judiciary is the law-enforcing branch of the government and has the least power. It determines questions of dispute concerning facts and laws in agreement with the law made by Parliament and is partial from Parliament and the executive. It protects citizens against the state and reviews the actions of the executive. In the case R v Londonderry JJ, ex parte Hume ([1972] NI 62) the limitations on the power of the judiciary to analyse the actions of the executive are illustrated. Blackstone believed that judges and institutional power should be different. An independent judiciary is necessary if the rule of law is to have any substance. There then is no risk of interference. It is especially crucial because of the roles of courts in judicial review of executive decisions. As there is no judicial review of Acts of Parliament it may look like a separation of powers but this merely states the supremacy that Parliament has. Judges make common law yet Parliament can overrule any of the courts decisions. In one sense the courts are constitutionally subordinate to Parliament. The judiciary are not keen to intrude on Parliament territory. This was shown in the case Kaye and Robertson [1991] FSR 62. The courts had to find a new legal rule only through common law. Only Parliament could make a new law.

The judiciary is neutral and judges are not elected. This was demonstrated in the case M v Home Office. The Lords of Appeal in ordinary who sit as judges in the Appellate Committee take some part in the upper house of the legislative business of the house, but they do so as cross-benchers. Their place in the upper house of the legislature is an open breach of the separation of powers.

In Entick v Carrington (1975) the home secretary ordered a ‘general warrant’ which authorized his civil servants to raid the property of Entick who he suspected of producing seditious literature. The warrant allowed government officials to enter private property without the owner’s permission. They could also seize anything they wished to and the Mr Entick did not have any chance to contest the home secretary’s suspicions. Mr Entick had not been accused, convinced or brought before any court. Therefore he sued the civil servants who seized the documents from his property. Their defence was that they had a warrant provided by the home secretary which allowed them to do so. There was no legislation which allowed the home secretary to enter private property in that way. The outcome of this case was that Mr Entick was entitled to recover damages and was awarded £300. This case shows how courts can protect individuals against the government and shows that citizens have a solution if the state acts in a way which is unlawful. It upholds the rule of law. Parliament is subject to the rule of law as to the kind of government powers which they can give rise to so there are limits.

Certain people are involved in overlapping roles so there is not a proper separation of powers. For example the Lord Chancellor has numerous responsibilities in all three organs. He is head of the judiciary, president of the Supreme High Court and can appoint and dismiss magistrates. He also advises the appointment of circuit judges, recorders and high court judges. The Lord Chancellor has the responsibility for the court service, legal aid as well as being a member of the cabinet, House of Lords and the executive arm of the Government. This is a breach of the separation of powers. It could be said without separation of person there can’t be an appropriate separation of powers. Blackstone’s commentaries (1765): “In all tyrannical Government’s… the right making and of enforcing the laws is vested in one and the same man, or the same body of men: and wheresoever these two powers are united together there can be no liberty”[1]. The UK has certain checks and balances: the limits impose on the exercise of power by the executive arm of government,

Magistrates also have overlapping roles because they have both judicial and administrative responsibilities. Another example is the Home secretary; he has a part in both the legislative and the executive as he can determine the length of life sentences.

It may be argued that important principles of law are protected by the separation of powers. There will always be instability in the relationships between the three organs. There are no real boundaries. Distinction between the three bodies is necessary for the British legal system. An absolute separation would beneficial to the British constitution as it would prevent excessive use of power. The abolition of the Lord Chancellor is a step towards there being a proper separation of powers. Nevertheless it is not as straightforward as that. “The constitutional reality, as identified by Professor Munro, is that where overlaps do occur, their effect upon the doctrine may be limited by convention, habit or practice,” A partial separation is valuable. On occasion it is vital that the judiciary, executive and legislature stay separate. For example when individuals bring about cases against the state for breach of their human rights it is essential the executive and the judiciary carry out their responsibilities accurately. For this to be able to happen they must be separate.

Although the Lord Chancellor has a historic significance to the British constitution it is going to be abolished. This is because its position in the legislative, executive and the judiciary challenges the separation of powers. This would mean an independent jury and a right to trial by an independent and impartial court. The Lord Chancellor would continue to be responsible for judicial training and the courts inspectorate and would also retain legislative functions with regard to rules of procedure. The basis of the reform is to increase the authority and independence of judges. This is a step towards more of a separation of powers in the British constitution.

Sir Ivor Jennings has interpreted what Montesquieu said as he did not mean that the legislature and the executive should have no influence other one another but that neither should exercise the power of the other.

On the whole there is only a ‘partial separation’ of powers. The powers are not equal between the three bodies. The judiciary has the least power and Parliament has the most. An absolute separation of power is not possible anyhow. Bagehot explained the ‘effective secret’ of the constitution as ‘the close union, the nearly complete fusion, of the legislative and the executive powers’