Discuss the doctrine of separation of powers. Do you think that the separation of powers in the United Kingdom is sufficient?
Separation of powers is a principle set out by Montesquieu in the 17th century after observing the British System of the time. The doctrine of the separation of powers sets out that there are three distinct entities at the centre of the decision and law making process. Montesquieu believed that the best safeguard against tyranny was the separation of the Executive, Legislature and Judiciary [Barnett, p. 125 REF1].
The Executive is the administrative branch of government. It makes laws by way of delegated legislation and drafts bills.
The Legislature, the law-making branch of government, is the House of Commons and the House of Lords.
The Judiciary, the law-enforcing branch of government, enforce the law through their interpretation of legislation [Units 10 and 11, p.65 REF2].
Separation of power can mean three things;
- that the same persons should not form more than one of the three entities, and
- that the entities should be kept entirely separate and should not interfere with one another’s role, and
- that these entities should not be able to wield the power of other entities, [Resource Book, p. 28 REF3].
An example of why the different entities should be kept separate is found in the case of McGonnell v UK (2000) 8 BHRC 56. In relation to this case, Sir Graham, the Bailiff of Guernsey, held Executive, Legislative and Judicial positions. The ECJ ruled on appeal that his role as part of the Executive was ‘capable of casting doubt on his impartiality when he subsequently determined the applicants planning appeal’. This can be compared to the Lord Chancellor who holds Legislative (Speaker of the House of Lords, presides over Legislature), Judicial (Senior Appellate Judge, sits on House of Lords’ Judicial Committee) and Executive (Minister, Place in the Cabinet) [REF4].
Another example of overlapping functions is that Cabinet members (Executive) are members of the House of Commons or Lords (Legislative) as by convention members of the Legislature always form the Government, and by delegated legislation they may be seen to wield legislative power. The Cabinet Government system could not work without this practice as it requires the support of the Legislature to put in force new bills [Harris, p 183 REF5].
The House of Lords acts as both a Legislative and Judiciary body. In practice the judicial members of the House of Lords very rarely sit on legislative matters and the same is true of the legislative members of the House of Lords and judicial cases. This shows that although they share the same institution the judicial and legislative aspect of the House of Lords do separate powers [Harris, p185 REF5]. Drewry agrees with this position, stating that “it is probably a good idea to have a Judiciary which is somewhat aloof from the rough and tumble of party politics” [Drewry, p.185 REF10].
It is clear to me that there is no distinct separation of powers in the United Kingdom, and Drewry states of this, that “words like “Legislative”, “Executive” and “Judicial” are a useful shorthand way of describing a lot of things that go in government, provided we remember that the boundaries between them are indistinct and that they are all functionally inter-related.” [Drewry, p.185 REF10].
However, I believe that the purpose of the separation of powers is not compromised as a system of checks and balances is employed in order to maintain a balance of powers. The three entities can maintain a subliminal control over one another to ensure that no one entity has too much power. [Barnett pp.139 REF1]
For example, the Courts can review delegated legislation to see if it is ultra vires, thus checking the Executive. Further, the Executive appoints the judges by advising the Queen on their appointment [REF3].
The Judges can check the Legislative and the Executive through interpretation of statutes, in line with E.C. law and the Human Rights Act 1998 [REF3]. An example of this R. v. Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603 [REF6]. The House of Lords (Judiciary) ruled that it could suspend an Act of Parliament (Executive/Legislative) if it conflicted with E.C. law. However, a UK statute which repealed the European Community Act 1972 would probably be obeyed by the UK courts indicating that final power may well rest with the Legislative and Executive [Units 12 and 13, pp.152-153 REF7].
A further check on the powers of statutory bodies and ultimately ministers is the concept of Judicial Review. High Court judges have 3 principle legal powers called prerogative writs to control the actions of these bodies. These include,
- the writ of Ultra Vires, which declares actions unlawful because they are beyond the powers conferred on the Executive by Parliament, and
- the writ of Mandamus which orders the performance of a public duty and
- the writ of injunction which bans an unlawful action [REF8].
Ministerial responsibility keeps a check on the powers of the Cabinet (Executive). Ministers have both collective responsibility in that they must be loyal to government policy whether or not they personally agree, and have individual responsibility in that they are accountable for all official acts carried out in their department, whether or not they personally sanctioned them. Finally, they are accountable to Parliament, and must answer questions put to them and resign if guilty of inappropriate conduct [Units 10 & 11 p.84 REF9].
The public and media themselves keep a check on abuse of power. The media has an investigative role that is important for bring matters involving improper conduct of the three entities to the public’s attention. The public are the voters and the government must command their confidence.
In conclusion, the doctrine of the separation of powers controls abuse of power. However, as the separation in the United Kingdom is unclear, the system of checks and balances is effective in prohibiting any one entity becoming too powerful. This is especially true now with the adoption of E.C. Law as the Judiciary have more power to check the Executive/Legislature. This is true of the Lord Chancellor who holds positions in all of the entities but may now be excluded from sitting as a Law Lord when challenging the Human Rights Act as he was a member of its drafting [REF3].
I believe there is still the chance of an unbalancing of power, but that this is unlikely as the checks between departments would probably not allow it to happen, nor would the public with whom all power ultimately lies with voters.
References:
1. Barnett, H. Constitutional & Administrative Law (2001, 3rd Edition) Chapter 5: The Separation of Powers, p. 125, Cavendish Publishing, London.
2. W200: Understanding Law, Manual 2 (2003) Units 10 and 11: Introduction to Constitutional Principles: A: Constitutions, p.65, Open University, Milton Keynes.
3. Bradley & Ewing, Constitutional & Administrative Law (12th Edition) Addison Wesley Longman pp.92-98 in W200: Understanding Law, Resource Book 2 (2003) Reading 4, pp.28-36, Open University, Milton Keynes.
4. McGonnell v UK (2000) 8 BHRC 56 found at www.butterworths.com and in Gordon, R. and Ward, T., Human Rights Update, Solicitors Journal, 18th February 2000 in W200: Understanding Law, Resource Book 2 (2003) Reading 5, pp.34-35, Open University, Milton Keynes.
5. Harris, P. An Introduction to Law (6th Edition, 2002), Law and the Settlement of Disputes: The English Court; the constitutional position, Butterworths, UK.
6. R. v. Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603 in Weatherill, S. Cases and Materials on E.C. Law pp. 729-733, Blackstone Press, London
7. W200: Understanding Law, Manual 2 (2003) Units 12 and 13 – Introduction to the European Union and EC Law: C: Parliamentary Supremacy and European Community Law, pp.152 – 153, Open University, Milton Keynes.
8. W200: Understanding Law, Manual 1 (2003) Units 5 – 7: How the English Legal System Works: F: Judicial Review, pp.212-216, Open University, Milton Keynes.
9. W200: Understanding Law, Manual 2 (2003) Units 10 and 11: Introduction to Constitutional Principles: B: The Sources of the Constitution, pp.84-85, Open University, Milton Keynes.
10. Drewry, G. Law, Justice and Politics (2nd Edition, 1981) Longman p.4 cited in Harris, P. An Introduction to Law (6th Edition, 2002), Law and the Settlement of Disputes: The English Court; the constitutional position, p.185, Butterworths, UK.