Separation of

Powers
Constitutional and Administrative Law
J. Roberts-Daniel
Separation of Powers
 The doctrine of the separation of powers, a fully developed
theory was first advanced by Charles de Montesquieu.
 Montesquieu (1748) in his The Spirit of Laws (see also Vile,
1967). de Montesquieu (1748, p. 197) argues that ‘constant
experience shews [sic]... that every man invested with power
is apt to abuse it, and to carry his authority as far as it will
go’. To protect ‘liberty’ against these potential abuses the
‘three sorts of power: the legislative, the executive... , [and]
the judicial’ must not be ‘united in the same person, or in
the same body of magistrates’ (de Montesquieu, 1748, pp.
198–200). By separating the powers of ‘enacting laws,...
executing the public resolutions, and of trying the causes of
individuals’
 It is a doctrine which is fundamental to the
organisation of a state – and to the concept of
constitutionalism – in so far as it prescribes the
appropriate allocation of powers, and the limits of
those powers, to differing institutions. The concept
has played a major role in the formation of
constitutions.
 In any state, three essential bodies exist: the
executive, the legislature and the judiciary. It is the
relationship between these bodies which must be
evaluated against the backcloth of the principle. The
essence of the doctrine is that there should be,
ideally, a clear demarcation of personnel and
functions between the legislature, executive and
judiciary in order that none should have excessive
 The separation of powers system is only an
‘auxiliary precaution’ for preventing tyranny
while a ‘dependence on the people is, no
doubt, the primary control on the
government’ (Madison, 1996)
Three Organs of Government
The Executive
 The executive may be defi ned as that branch
of the state which formulates policy and is
responsible for its execution. In formal terms,
the sovereign is the head of the executive.
The Prime Minister, Cabinet and other
ministers, for the most part, are elected
Members of Parliament. 4 In addition, the
Civil Service, local authorities, police and
armed forces, constitute the executive in
practical terms.
The Legislature
 Parliament is the sovereign law- making
body. All Bills must be passed by the
legislature and receive royal assent to
become an Act of Parliament.
 The House is made up of the governing party:

the political party which secures the highest

number of seats at the election, and the
opposition parties.
The Judiciary
 The judiciary is that branch of the state which
adjudicates upon conflicts between state
institutions, between state and individual,
and between individuals. The judiciary is
independent of both Parliament and the
executive. Judicial independence is of prime
importance both in relation to government
according to law and in the protection of the
rights and freedoms of the citizen against the
executive
Relationship Between Executive &
Legislature
 Personnel
 Parliament provides the personnel of government. Ministers
of the Crown, including the Prime Minister, must be members
of either House of Parliament. By convention, the Prime
Minister must be a member of the House of Commons. It is
thus immediately apparent that the executive, far from being
separated from the legislature, is drawn from within its ranks.
 Lord Hailsham, the Lord Chancellor in the 1979–87
Parliament, asserted 29 that the current electoral process
which, generally, but not invariably, returns a government
with a large majority of seats in Parliament, contributes to
what he termed an ‘elective dictatorship’ – that is to say, a
situation in which the executive controls the legislature
Legislature and the Judiciary
 It has been stated above that Parliament is sovereign and
that the judiciary is subordinate to Parliament, but that
the independence of the judiciary is protected. At the
head of the judiciary is the Crown. The Crown appoints
senior judges and represents the ‘fountain of justice’: all
judicial acts are carried out in the name of the Crown.
 To reinforce the independence of judges, convention
dictates that there should be no criticism levelled at
them from members of the executive – but not from
other Members of Parliament. Parliamentary practice
prohibits the criticism of judges other than under a
motion expressing specific criticism or leading to an
Address to the Crown for the removal of a judge
Legislature and the Judiciary
 The doctrine of parliamentary supremacy
entails the necessary constitutional
subordination of judges to Parliament and
has several implications. First, it is well
established that the sovereign Parliament can
overturn any court decision by way of
legislation. 38 Secondly, the judiciary’s
primary role in relation to the interpretation
of statutes is to give effect to the latest
expression of the will of Parliament.
Judges as Legislators?
 One of the most debated aspects of the relationship between
the legislature and the judges lies in the question: ‘Do judges
make law?’ In constitutional terms, the issue is whether by
making law – either by virtue of the doctrine of precedent or
through the interpretation of statutes – the judges are
usurping the legislative function or, in other words, violating
the separation of powers.
 When judges make law, Parliament may also ‘tacitly’ approve
the decision by not interfering with it: when this occurs it can
be said that the judges and Parliament are acting in a form of
constitutional partnership. Parliament may also expressly
endorse a judicial decision by incorporating it into statute, as
occurred with the amendment to the statutory defi nition of
rape following the House of Lords’ decision in R v R (1991)
 http://www.caribbeanelections.com/
education/democracy/government.asp