The Debate on Separation of Powers in the UK

There is a consensus among academic writers that the UK does not have a separation of powers. There is a consensus among judges that the UK does have a separation of powers. They cannot both be right.” Critically evaluate this statement, using examples to support your argument.

Introduction

The doctrine of separation of powers encourages the separation of governance functions (usually, legislative, executive and judicial functions) into three strictly segregated departments or organs. The doctrine provides that each organ or department should perform its functions independently from other organs. The executive, legislature and judiciary, each has a distinct function to perform and the principle demands that the functions should not overlap. The doctrine is justified on the basis of prevention of concentration of powers in one authority and maintenance of a system of checks and balances as between the organs or departments.

The doctrine of separation of powers and its applicability within the UK is strongly contested. For instance, Slapper and Kelly (2009, p.31) argue that even if it is accepted that Montesquieu based the doctrine on the English legal system, then Montesquieu was on a faulty premise because he failed to consider the impact of principle of parliamentary sovereignty on all matters, including the relationship between the Parliament and the judiciary. On the other hand, judicial opinion has always strongly veered towards upholding the applicability of the principle in the UK. An example of that is seen in Lord Diplock’s judgement in R v Hinds [1979] Crim LR 111, where he considered that the application of the doctrine of separation of powers is taken for granted (p.212). This essay argues that the doctrine of separation of powers is applied only in the limited sense, and that with respect to separating judiciary from the legislature and executive. Therefore, the position of the academic scholars that there is no separation of powers, is faulty. There is more aptness in the judicial approach, which evidences the separation of powers as it exists in the UK - not in the pure and strict sense, but still definable as separation of powers.

The relevance of separation of powers in the UK

Separation of powers as a principle was found in the Greek philosophy in the ancient period. In modern time, the principle is seen in the philosophy of John Locke and Montesquieu (Slapper and Kelly, 2009, p.30). The principle is based on the establishment of three different organs of the government- the legislature, executive and judiciary; each with its own separate functions. The principle is based on the need to avoid centralisation of powers in one authority and maintenance of checks and balances as between the organs. British history evidences that legislative, executive and judicial functions were historically centralised in the monarch, therefore, application of the principle of separation of powers in not found in the legal history of England, until the 16th century, when the role of the judiciary as an interpreter of the law was more properly defined. By now, the monarch was the lawmaker and the judiciary interpreted and declared that law. The 17th century Act of Settlement, which was enacted in 1701 sought to maintain the principle of independence of judiciary when Parliament became the sovereign power in England (Slapper and Kelly, 2009, p.31). An important reason for the debate around the applicability of the separation of powers in the UK is that the principle was never really a part of the common law. Therefore, academic scepticism about the applicability of the principle does abound in literature. Regardless of the common law position, the last century has witnessed more prominence being given to the principle in the English law. The recent enactment of the Constitutional Reforms Act 2005 (CRA 2005) is another step in the same direction. Under this law, the Lord Chancellor ceases to play the role he traditionally played in the judiciary. Now the office of the Lord Chief Justice has been created to play the role otherwise played by the Lord Chancellor. This means that legislature and the judiciary are formally separated. Before the enactment of the CRA 2005, the Lord Chancellor was part of all the organs of the government, that is, the executive, the legislature and the judiciary. In fact, Lord Chancellor was the head of the judiciary, the Speaker of the House of Lords and also a senior cabinet minister. This has led scholars to rebut the notion of applicability of separation of powers in the UK (Oliver and Drewry, 1998, p.16). Thus there was definite a interconnection between the three organs of the government through the office of the Lord Chancellor, in such a way that they could be argued to be not truly separate from each other.

The debate around the concept: Is there separation of powers in the UK?

The UK, unlike the United States, does not formally apply the principle of separation of powers. There is no written constitution in the British legal history where such a provision was made. Further complications in the debate surrounding separation of powers are made due to the principles of parliamentary sovereignty and independence of judiciary. Writers insist that because there is parliamentary sovereignty, there cannot be application of separation of powers in the sense advocated by Montesquieu (Barber, 2012). However, not all commentators have been sceptical of the applicability of the principle in the UK. Writers such as, Munro (1981), Allan (1993) and Barendt (1995), have accepted that the principle does apply in the UK. The judicial position on separation of powers is seen in many cases decided by English courts. One example is the case of R v Hinds [1979] Crim LR 111, in which Lord Diplock contends that the applicability of separation of powers is a matter that is implied in the English law and therefore something that can be taken for granted (1979, p.212). On the face of it Lord Diplock’s statement does not seem to be problematic, but when viewed from the perspective of the unique constitutional conditions in the UK, there are certain areas of contention. The first area of contention is that, in the UK, the legislature and executive are not really separate from each other. This is evident from the fact that the Prime Minister and his Cabinet of Ministers, are MPs, in fact their being MPs is prerequisite to their being in the government. Montesquieu’s separation of powers, if seen in its pure sense, would not advocate such a mixing up of powers. Here, it is also to be noted that although a dilution of separation of powers, such a situation is ideal because it is favourable to efficiency. In any case, some scholars see the claims of possibility of tyranny in case powers are not strictly segregated, as abstract notions (Krotoszynski, 2011, p.248). The second area of contention in the debate is that in the UK, the system that has evolved over the centuries, is seen more in the nature of fusion, rather that as separation of powers between organs of state (Bagehot,1867). The third area of contention is that separation is seen more with respect to the judiciary and the other two organs of the state. For instance, although parliament MPs are members of Cabinet, Judges cannot be MPs or even contest in elections under the House of Commons (Disqualification) Act 1975. Parliamentary sovereignty also is seen as a way of reinforcing the strict separation between legislative and judicial functions because primary legislation in the UK does not come within the purview of judicial review (as held in Pickin v British Railways Board, [1974] AC 765.). Although parliamentary sovereignty does not extend to putting executive functions outside the scope of judicial review, it has ramifications with regard to judicial review of executive action. In the UK, Parliament is the principal controlling organ for the executive. It is also noteworthy that in the English law, judicial review has traditionally been considered as complementary to parliamentary sovereignty. This is evident from the fact that judicial review is not done over primary legislation, but is done on executive action of the basis of ultra vires. This means that when the judiciary reviews executive action, a major basis of such review is that the action is contrary or ultra vires the primary legislation. As is evident, separation of powers is a watered down concept and the UK seems to have evolved its own system of fusion with separation. However, the courts in the UK have time and again held separation of powers to be a part of the English constitutional law. For instance, in R (Anderson) v Secretary of the State for the Home Department, [2002] UKHL 46, separation of powers was held to be a part of the system of governance. This may be a fair assessment of the relationship of judiciary with the other two organs as judiciary indeed is more separated from the legislature and executive that they are with each other. However, even if accepted, it is still not a complete application of separation of powers. In DPP of Jamaica v Mollison, judicial functions on one hand and legislative and executive functions on the other were held to be completely separated (Masterman, 2011, p.27). Again, this statement is more reflective of the relationship between the judiciary and other organs, and not really a complete assessment of all three organs. Even of accepted, it does not apply to the legislature and executive. To that one may also argue that the functions of the ministers in parliament, that is to legislate, are distinct from their functions of administration as members of the executive. In fact, one can appreciate the inherent differences between England and the US as far as the separation of powers is concerned. This has to be understood in the context of other principles that are inherently and uniquely a part of the English legal system, primarily parliamentary sovereignty. However, the doctrine itself has undergone dilution. This is especially true after the passage of the Human Rights Act 1998, as now the courts can declare primary legislation as incompatible with the European Convention of Human Rights. It is seen that the courts are hesitant to encroach too much into legislative and executive domain. Thus, In Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568, 589, the court held: Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. Again, in Re McGuinness’s Application, [1997] NI 359, per Kerr J.: I am quite satisfied that, whether it qualifies as a proceeding in Parliament or not, the Speaker’s action lies squarely within the realm of internal arrangements of the House of Commons and is not amenable to judicial review (para 6). In R v Parliamentary Commissioner for Standards, Ex p Al Fayed [1998] 1 WLR 669 Lord Woolf MR observed that: it would be inappropriate for this court to use its supervisory powers to control what the Parliamentary Commissioner for Standards does in relation to an investigation of this sort. The responsibility for supervising the Parliamentary Commissioner for Standards is placed by Parliament… (p.673) A similar position has been seen in the unanimous decision of the Supreme Court in R v Chaytor, [2010] UKSC 52. That there is a separation of powers in the UK is clear from the many judgements of the courts, even if they are more focussed on the separation between the judiciary and the other organs and not all three organs. In the UK, judicial review of the parliamentary action cannot be done. However, there are certain important changes in the UK with the passage of the Human Rights Act, under which declarations of incompatibility between primary law and European law have been made by the courts. However, in actuality, this cannot be taken to be the same as judicial review in the pure sense.

Conclusion

Separation of powers in the UK is evidenced by many judgements of the courts and the applicability or the functioning of the doctrine is indeed seen in the interactions and inter relations between the three organs of the government. However what is seen is not the pure sense of the doctrine, rather a unique version, where some overlapping is seen in legislative and executive functions and the judiciary does not exercise the power of judicial review over the primary legislation. Nevertheless, English constitutional law does not evidence either the complete lack of applicability of principle of separation of powers, nor the application of the principle in the strict sense. The truth lies somewhere in between. Thus, the position of the judiciary is more apt than the one taken by academic scholars who argue that there is no separation of powers.

Reference List

• Allan, T. R. S. (1993). Law, Liberty and Justice. Oxford: Oxford University Press.
• Bagehot, W. (1867) The English Constitution. Chapman & Hall.
• Barber, N.W. (2012). The Separation of Powers and the British Constitution. Legal Research Paper Series Paper No 03/2012.
• Barendt, E. (1995). Separation of Powers and Constitutional Government. Public Law 599.
• Bernwell, R., Oonagh, G. (2011). The Separation of Powers. SN/PC/06053.
• Krotoszynski, R.J. (2011). The separation of legislative and executive powers. In Tom Ginsburg, Rosalind Dixon (Eds.) Comparative Constitutional Law. Edward Elgar.
• Masterman, R. (2011). The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom. Cambridge: Cambridge University Press.
• Munro, C. (1981). The Separation of Powers: Not Such a Myth. Public Law 19. Oliver, D. and Drewry, G. (1998). The Law and Parliament. Cambridge: Cambridge University Press.
• Slapper,G. and Kelly, D. (2009). The English Legal System. Oxon: Routledge.