Question: Discuss the extent to which the British constitution has embraced a

rigid doctrine of separation of powers.

Answer

“Separation of powers” refers to the idea that the major institutions of state
should be functionally independent and that no individual should have powers
that span these offices. The principal institutions are usually taken to be the
executive, the legislature and the judiciary.

In early accounts, such as Montesquieu’s The Spirit of the Laws, the separation of
powers is intended to guard against tyranny and preserve liberty. It was held that
the major institutions should be divided and dependent upon each other so that
one power would not be able to exceed that of the other two. Today, the
separation of powers is more often suggested as away to foster a system of
checks and balances necessary for good government.

In 1748 the French jurist, Montesquieu, put forward his theory that ‘there can be
no liberty’ without the separation of power and also said that “everything would
come to an end if the legislative, executive and judicial powers of government
were to be exercised by the same person or authority” (L’Esprit des Louis 1748).
The assumption is that the separation of powers is an ideal worth having and that
we gain something valuable by conforming to it. Indeed, this assumption has had
a long pedigree in the canonical literature on constitutional theory.

Although UK has a separation of powers; there are clear overlaps both in terms of
personnel and function between the three organs of government which may be
discerned. The government powers should be exercised by legislative, executive
and judicial, within their own limitations and should also check each and other.

Britain’s concept of separation of powers that Parliament, executive and courts

each have their own perimeters and each should exercise their powers
accordingly. Monarchy used to influence over government but now it is like a
symbolic for government however it is sovereign. John Lock and Charles
Montesquieu are the significant figure for this doctrine. According to
Montesquieu vision, the separation of powers is an idea where checks and
balances works like you-running after someone in a circle and they running after
you. One person should not perform his duties in three organs of government at a
time. Each organ of government should not interfere with the other organ e.g.
ministers should not have legislative powers. The executive consists of
government, including the Prime Minister and the Cabinet other than in the
legislative functions of Parliament The role of the executive is to implement
government policies. These include implementing legislation, security, providing
social and economic welfare, administrating public services and also try to make
good relations with other countries. Therefore the executive function techniques
ranging from the formation of broad policies to the detailed management of daily
routine services.

In the UK, new law is enacted when the Bill has been approved by the House of
Commons and Lords and has received Royal assent, however Under the
Parliaments Act of 1911 and 1949 legislation maybe enacted even though it has
been rejected by the House of Lords, House of Lords only can delay it up to twelve
months. The interpretation of statutes is a vital part of the law-making process,
because after such interpretation that is known whether the intentions of those
who framed the law have been carried into effect. During this procedure the
judges must not challenge the political authority of the legislature to decide what
net laws should be made.

The legislature is the law-making body, and is comprised of the House of

Commons and the House of Lords. The legislative function involves ‘the
enactment of general rules determining the structure and powers of public
authorities and regulating the conduct of citizens and private organisations.’

The executive is all the institutions and persons concerned with the
implementation of the laws made by the legislature. It involves central and local
government and the armed forces. The role of the executive ‘…includes initiating
and implementing legislation, maintaining order and security, promoting social
and economic welfare, administering public services and conducting the external
relations of the state.’

The judiciary is made up mainly of professional judges, and their main function is
‘to determine disputed questions of fact and law in accordance with the law laid
down by Parliament and expounded by the courts and …is exercised mainly in the
civil and criminal courts.’
Visible overlaps are found in legislative, judiciary and executive however system
of checks and balances are there. This involves each branch having eye on the
others but also required each organ to be protected against interference by
others out of their perimeters. The prime minister can advise the queen to
dissolve a Parliament but it must meet within a year. The Queen in emergency
can dissolve or refuse to dissolve Parliament. Individual ministers are accountable
before Parliament. House of Lords is a partial check over the executive.

The main instance of overlap, in recent years, was the position of Lord Chancellor.
This role has been continually citied to support the view that there is no
separation of powers in the United Kingdom. Historically, the position of Lord
Chancellor was distinctive in that he was a member of all three branches of
Government and exercised all three forms of power. He would sit as speaker in
the House of Lords (legislative function), was head of the judiciary (judicial
function), and was a senior cabinet minister (executive function). After the Human
Rights Act 1998 and the case of McGonnell v UK (2000), the Government
announced changes to the role of Lord Chancellor in the UK. In McGonnell, the
European Court of Human Rights held that the Royal Court Bailiff of Guernsey had
too close a connection between his judicial functions and his legislative and
executive roles and as a result did not have the independence and impartiality
required by Article 6(1) of the European Convention on Human Rights 1950. This
had implications on the Lord Chancellors role, as he performed very similar
functions in the UK.

It was after this that the Government enacted the Constitutional Reform Act
2005, which meant that the Chancellor was replaced as head of the judiciary by
the Lord Chief Justice. He was replaced as speaker in the House of Lords by the
creation of the post of Lord Speaker, and now only appoints judges on the basis of
recommendation from a Judicial Appointments Commission.

These changes show that there is a strong importance still placed upon the
doctrine of separation of powers. However it is still possible to see overlaps
within the three limbs. Examining the relationship between the legislature and
the executive Bagehot stated that there was a close union and nearly complete
fusion of these powers. This notion had been criticized, particularly by Amery,
who wrote that:
Government and Parliament, however intertwined and harmonized, are still
separate and independent entities, fulfilling the two distinct functions of
leadership direction and command on the one hand, and of critical discussion and
examination on the other. They start from separate historical origins, and each is
perpetuated in accordance with its own methods and has its own continuity.

In the United States and other presidential system, a strict separation is often a
fundamental constitutional principle. In the United Kingdom and other common
law jurisdictions, however, the theory of separation has enjoyed much less
prominence. In the UK, the major offices and institutions have evolved to achieve
balance between the Crown (and more recently the Government) and Parliament.
The system resembles a balance of powers more than a formal separation of the
three branches, or what Walter Bagehot called a “fusion of powers” in The English
Constitution.

Conclusively, In the last decade the concept of a separation of powers has evident
in a number of policy initiatives. The previous Government suggested that, in its
reforms of the judiciary in the Constitutional Reform Act 2005, it was moving
toward a more formal separation of powers. The creation of an independent
Supreme Court and dismantling of the many-faceted office of Lord Chancellor
have unpicked some aspects of the fusion of powers. Matters have also been
complicated by the Human Rights Act 1998 and its requirement for judges to
consider the European Convention on Human Rights and the decisions of the
European Court of Human Rights in Strasbourg. More recently, the proposed
change in the number of Members of Parliament, use of parliamentary privilege
and Members’ involvement in super injunctions have again raised issues of the
interaction of the institutions of state.