Contents Introduction
4 1The major institutions of the British state
4 2The relationships between the institutions
4 3Conventions and the separation of powers 51Reflect and review 53page University of London External Programme
Introduction
…separation?of?powers,?together?with?the?rule?of?law?and?parliamentary?sovereignty,?runs?
like?a?thread?throughout?the?constitution?of?the?United?Kingdom.?(Barnett,?p.97)
The separation of powers is a constitutional principle designed to ensure that the func-
tions, personnel and powers of the major institutions of the state are not concentrated in
any one body. It ensures a diffusion rather than a concentration of power within the state.
Under the uncodified, largely unwritten British constitution there is no strict separation of
powers. Instead, while some separation of powers exists, it is more accurate to speak of a
system of checks and balances which ensures that powers are not abused. The fundamen-
tal purpose of the separation of powers is to avoid the abuse of power and thereby to
protect the rights and liberties of citizens.
The concept itself is of great antiquity and can be attributed to Aristotle (384–322 BC);
however, the clearest exposition of the doctrine can be found in the French writer Charles-
Louis de Montesquieu’s De l’esprit des lois (1748) †. In essence, Montesquieu states that the
three organs of government – the executive, legislature and judiciary – should each have a
discrete and defined area of power and that there should be a clear demarcation of func-
tions between them: this is true ‘separation of powers’.
Under a written constitution, the powers allocated to various institutions will be clearly de-
fined. In the UK – in the absence of such a document – the issue that requires evaluation is
the manner in which and the extent to which differing functions are kept separate. For the
purpose of analysis, the subject may be further broken down by considering the extent to
which the executive and legislature, executive and judiciary, and judiciary and legislature
overlap and interact. It should be noted that even under a written constitution a complete
separation of powers is not possible, and that without some degree of interaction between
the institutions there would be constitutional deadlock.
Essential reading
Barnett, Chapter 5: ‘The separation of powers’.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
explain the constitutional significance of the separation of powers
outline the powers and functions of the major institutions
identify those areas where functions, personnel and powers overlap
describe the conventional rules that prevent abuse of power
critically assess the relevance of separation of powers under the constitution.
De l’esprit de lois(French)=‘On
the spirit of the laws’.
A portrait of Montesquieu. Image courtesy of Wikipedia Commons. De l’esprit de lois(French)=‘On
the spirit of the laws’.A portrait of Montesquieu. Image courtesy of Wikipedia Commons. Public law 4 The separation of powers
page ?5
4.1?
The?major?institutions?of?the?British?state
The principal institutions are the executive, the legislature and the judiciary. Each of these
bodies exercises its role in the name of the Crown.
4.1.1? The?executive
The executive comprises the Crown and the government, including the Prime
Minister and Cabinet ministers. Ancillary to Her Majesty’s Government is the
civil service which runs the administration of the state, and the armed forces
and the police which uphold executive power.
The role of the executive is to formulate and implement government policy
across all governmental activities. The elected government of the day is ac-
countable to Parliament, which has the ultimate power to dismiss a govern-
ment and force a general election through which the people will decide on
who will run the next government. Members of government are primarily
elected Members of Parliament who sit in the House of Commons, although a
number of government ministers also sit in the House of Lords.
In order to prevent the executive dominating Parliament there are limits
imposed on the number of salaried ministers who sit in the Commons under the
House of Commons (Disqualification) Act 1975.
4.1.2? Parliament
Parliament comprises the Crown, the elected House of Commons and the currently
unelected House of Lords. The House of Commons, which is superior to the Lords in its
law-making powers, is made up of elected Members of Parliament who represent their
individual areas (constituencies). A general election must by law be held at least every
five years (Parliament Act 1911). Membership of the House of Lords consists of a minor-
ity of hereditary peers, a majority of life peers appointed by the Crown and Archbishops
and Bishops of the Church of England. Under the Constitutional Reform Act 2005, Lords of
Appeal in Ordinary (Law Lords) who have also been members of the House of Lords will no
longer be entitled to sit in the Lords.
4.1.3? The?judiciary
The judiciary includes all the judges in the courts of law, and also those who hold judicial
office in tribunals, and the lay magistrates who staff the magistrates’ courts. Senior judicial
appointments are made by the Crown. It is the function of the judges to interpret legisla-
tion in line with the intention of Parliament and to develop the common law (judge-made
law). Constitutionally, judges are subordinate to Parliament and have no power to chal-
lenge the validity of Acts of Parliament.
Judges are prohibited from standing for election to Parliament under the House of
Commons (Disqualification) Act 1975.The?Lord?Chancellor As noted in Chapter 2, prior to the Constitutional Reform Act 2005, the office of Lord Chancellor spanned the major institutions of the state. The Lord Chancellor was head of the judiciary with responsibility for the appointment of judges. He or she was also a mem-ber of the Cabinet, and therefore played a central political role in government. The Lord
Chancellor also presided over the House of Lords as its Speaker, thereby fulfilling a legisla-
tive role. The role of the Lord Chancellor was frequently criticised as violating the doctrine
of separation of powers and concentrating executive, judicial and parliamentary functions
in one person. CrownCentral government (including Prime Minister and Cabinet ministers) Civil service, armed forces and police Executive University of London External Programmer
Two cases have challenged the equivalent positions in the Channel Islands and Scotland. In
McGonnell v United Kingdom (2000) 30 EHRR 289 (The Times,† 22 February 2000) the European
Court of Human Rights ruled that the right to a fair trial was violated by the participation
in a planning decision of the Deputy Bailiff of Guernsey, who was both a senior judge in the
Guernsey Royal Court and a senior member of Guernsey’s legislative body, the States of
Deliberation. In the Scottish case of Starrs v Procurator Fiscal, Linlithgow [2000] HRLR 191, the
Court of Session ruled that the independence of the judiciary was impaired, and hence the
right to fair trial violated, through the dependence of temporary judges for reappointment
on the office of Procurator Fiscal.
As a result of such criticisms, the office of Lord Chancellor has been reformed. A
Department for Constitutional Affairs was established, headed by a Secretary of State and
that position was combined with that of Lord Chancellor. The Constitutional Reform Act
2005 removed the judicial functions of the Lord Chancellor and his former role as head
of the judiciary is now filled by the Lord Chief Justice. The Lord Chancellor no longer sits
as Speaker of the House of Lords, which will elect its Speaker from among its members.
In future the Lord Chancellor need not be a senior lawyer and may be a member of either
House of Parliament. In a major reorganisation of the Home Office, a Ministry of Justice
was established in 2007. The Ministry takes over the responsibility of the Department
of Constitutional Affairs and also assumes responsibility for the National Offender
Management Service, sentencing and prisons.
4.1.4 Judicial independence Essential reading Barnett, Chapter 5: ‘The separation of powers’, pp.98–102 and Chapter 27: ‘The grounds for judicial review’, pp.762–765.Judges in the higher courts – High Court and above – have tenure under the Act of Settlement 1700, which protects their independence from both the executive and Parliament. Superior judges can only be dismissed by an address to the Crown from both Houses of Parliament. To protect the judiciary, judges enjoy immunity from legal action in relation to their judicial functions. The public interest in the administration of justice requires that judges possess absolute privilege in relation to court proceedings, even where they make statements that might be defamatory. In the exercise of their judicial functions, judges must demonstrate that they are impartial. Any words or actions which are capable of raising a suspicion that a judge is biased give rise to criticism. Bias may take several forms; it may be: political bias bias due to an affiliation with a person or organisationpersonal bias against persons or groups because of their identities or characteristics. Financial dealings may also give rise to a suspicion of bias. In their judicial role, judges must
disqualify themselves if there is a suspicion of bias: ‘justice must not only be done but must manifestly be seen to be done’. Two cases illustrate this aspect of judicial independence:In Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759, the Lord Chancellor held shares in a canal company which was involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was ac-cepted that he was not influenced by the interest, the court ruled that it was of the utmost importance that ‘the maxim that no man is to be judge in his own cause should be held
sacred’ [p.793].
In R v Bow Street Stipendiary Magistrate ex parte Pinochet (No 2) [1999] 2 WLR 272, the House of
Lords overturned its own previous decision relating to the extradition of General Pinochet
to face allegations of human rights violations during his period as Head of State in Chile.
Lord Hoffmann, who had participated in the earlier decision, held office as a Director of
Amnesty International which had been allowed to present evidence. The earlier decision
was set aside because it gave rise to an appearance of bias.
The Times (founded in 1785) is a useful source of law reports.The Times (founded in 1785) is a useful source of law reports.Reading?cases?(law?reports)In your law studies you will need to read many cases. This does not mean reading the full tran-script of a trial, but the decisions and judgments made by the court. The majority of the cases you read will be from the Appeal Court, or the House of Lords. Often you will simply be asked to read the views of one judge (such as Lord Justice O’Connor in Merkur Island Shipping Corp v Laughton).But there is more to reading a case than just a bit of reading. See Activity 6.4 in Chapter 6, and ‘Reading law reports’ in your Learning skills for law guide. Reading?cases?(law?reports)In your law studies you will need to read many cases. This does not mean reading the full tran-script of a trial, but the decisions and judgments made by the court. The majority of the cases you read will be from the Appeal Court, or the House of Lords. Often you will simply be asked to read the views of one judge (such as Lord Justice O’Connor in Merkur Island Shipping Corp v Laughton).But there is more to reading a case than just a bit of reading. See Activity 6.4 in Chapter 6, and ‘Reading law reports’ in your Learning skills for law guide. Public law 4 The separation of powers
page ?Research question
Use the Online Library or printed sources to locate the English cases relating to General
Pinochet. In your portfolio make a note of the dates of the cases, the courts where they
were heard, and brief details of the conclusions. Note the role of Lord Hoffmann. ?
Summary
The essential function of the separation of powers doctrine is to avoid the over-concen-
tration of power in one institution of the state. It is therefore necessary that personnel
and functions are distributed between the three institutions and that these are clearly
defined in order that those who exercise powers under the constitution are accountable to
citizens.
Reminder of learning out comes By this stage you should be able to:explain the constitutional significance of the separation of power soutline the powers and functions of the major institutions.
Students who wish to gain a Qualifying Law Degree must demonstrate that they are capable of ‘locating and retrieving relevant information on a specified topic using primary and secondary paper sources and electronic sources including the world-wide web’. Note down your progress on the task in your Skills portfolio.
Students who wish to gain a Qualifying Law Degree must demonstrate that they are capable of ‘locating and retrieving relevant information on a specified topic using primary and secondary paper sources and electronic sources including the world-wide web’. Note down your progress on the task in your Skills portfolio.page ? University of London External Programmer
4.2The relationships between the institutions
4.2.1 The executive and the legislature
The government proposes legislation: only Parliament may enact laws which give legal
effect to these proposals.† As noted above, the Prime Minister and a majority of his or her
ministers are Members of Parliament and sit in the House of Commons. The executive is
therefore present at the heart of Parliament. By contrast, in the USA, the President may not
be a member of the legislature (Congress), and is elected separately from congressional
elections. This may result in the President being a member of a different political party
from the majority of members of Congress. That cannot happen in the UK, as the Prime
Minister will always be the leader of the political party that won a majority of seats at a
general election. Where a government has a large majority of seats in the Commons, the
crucial issue is whether the government can dominate Parliament and ensure that its pro-
posed legislation is enacted, or whether there are sufficient procedures in place to ensure
that proposals are sufficiently scrutinised and either endorsed or rejected by Parliament.
Parliament may delegate law-making powers to the government through powers to draft
subordinate or delegated legislation. The purpose of this is to free Parliament from the
need to scrutinise every technical rule contained in legislation and to enable the govern-
ment to draft the detailed rules. Such legislation is subject to the ultimate approval of
Parliament. Delegated legislation, however, does raise questions about the separation of
powers between the executive and legislature.
4.2.2? The?executive?and?judiciary
Judicial independence from government is a key requirement of the separation of pow-
ers. Judges must be seen to be politically impartial. The judicial function is to interpret
Parliament’s intentions as expressed in legislation and to ensure – through judicial review
(see Barnett, Chapters 26 and 27) – that any delegated legislation is consistent with the
scope of power granted by Parliament. The rule of law also requires that judges ensure the
legality of government action; this function could not be fulfilled if the judges’ independ-
ence was in doubt.
M?v?Home Office
An example of judicial control can be seen in the case of M v Home Office [1994] 1 AC 377. See
re M [1993] 3 WLR 433 on p.63 of this guide.
The judges exercise self-restraint in the areas of power that they regard themselves as
competent to review. Many exercises of the royal prerogative, for example (see Chapter 6),
involve issues of ‘high policy’: such diverse matters as the appointment of ministers, the al-
location of financial resources, national security, signing of treaties and defence matters. In
order to protect judicial independence and the appropriate separation of powers, judges
will rule that such matters are for the executive to decide.
An example of this is seen in the case of Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374 (the GCHQ case). The Prime Minister had ordered that workers at the
Government’s Communication Headquarters (the signals intelligence body) should no
longer be allowed to be members of trade unions, a right which had been enjoyed for sev-
eral decades. The Union challenged the legality of the ban. The Court of Appeal and House
of Lords ruled that where national security was in issue, the courts would not interfere.
Activity 4.1
a Consider M v Home Office and the GCHQ case and briefly explain their significance in rela-
tion to the separation of powers.b Why do you think the judges responded in different ways to the facts of these cases Parliamentary procedure is discussed in
Chapter9.When you have studied that topic you will be able to relate it to the separation of powers.Parliamentary procedure is discussed in Chapter9.When you have studied that topic you will be able to relate it to the separation of powers.Public law 4 The separation of powers
4.2.3? Legislature and judiciary
Parliament is the supreme law-making body within the UK. Judges interpret legislation
using the ‘rules’ of statutory interpretation which you will study in the Common law reason-
ing and institutions subject guide. Constitutionally, judges have no power to question the
validity of legislation: see Pickin v British Railways Board [1974] AC 765 discussed in Chapter 7.
However, within the constraints imposed by the ‘rules’ there remains a certain amount of
leeway for the judges to give new meaning to statutory language, and this raises the ques-
tion of whether the judges ‘make law’. This aspect of the judicial role is enhanced under the
Human Rights Act 1998 (see Chapter 15) which imposes a duty on the judges to interpret
legislation ‘as far as possible’ in a manner to make it compatible with Convention rights.
Where this is not possible, however, the superior courts (High Court and above) can issue a
‘declaration of incompatibility’ but cannot declare an Act of Parliament invalid. The effect
of this arrangement preserves both the supremacy of Parliament and also the separation of
powers.
The development of common law also raises the issue of judicial law-making. You will
realise when you study the doctrine of precedent that judges are able to develop the law
in line with contemporary requirements. While all of common law is judge-made law, it
must be remembered that Parliament may at any time overturn a judicial decision, thereby
preserving its sovereignty.
Activity 4.2
In Magor and St Mellons RDC v Newport Corporation [1952] AC 189 the House of Lords rejected the approach of Lord Denning MR, in the Court of Appeal, who had stated that, where gaps were apparent in legislation, the courts should fill those gaps. Lord Simonds commented that this amounted to a ‘naked usurpation of the legislative function under the guise of interpretation’ (p.191).Now consider the following three cases: a In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 the House of Lords ruled that com-pensation was payable to oil companies whose property had been destroyed dur-ing war time in order to prevent it from falling into enemy hands. The government quickly proposed and Parliament passed the War Damage Act 1965 which effec-tively nullified the decision.b In Shaw v Director of Public Prosecutions [1962] AC 220 the House of Lords ruled that the publisher of a directory of prosti-tutes’ services was guilty of the offence of conspiracy to corrupt public morals – an offence previously unknown to law. Parliament did not invalidate the decision.c In R v R [1992] 1 AC 599 the House of Lords ruled that a husband who had raped his wife at a time when it had been lawful for him to do so was guilty of rape. The European Court of Human Rights upheld the House of Lords’ decision, despite the fact that it imposed retrospective criminal liability in violation of Article 7 of the European Convention on
Human Rights in SW v United Kingdom (1995) 21 EHRR 363. The Criminal Justice and Public
Order Act 1994, s.140, redefined rape to include a husband having sexual intercourse with his wife without her consent.Were the judges in these cases ‘usurping the legislative function’? Explain your opinion.Go to your study pack and read the brief extract from Merkur Island Shipping Corp v Laughton (The Hoegh Anapa). You can read the whole case report via the Online Library.Go to your study pack and read the brief extract from Merkur Island Shipping Corp v Laughton (The Hoegh Anapa). You can read the whole case report via the Online Library.Explain?your?opinion
In many of the activities in this subject guide, you will be asked for
an opinion. Here are some examples:
Activity 8.1: What advantages, if any, can you identify in having a
hereditary head of state?
Activity 9.4: Write a brief passage outlining the strengths and weak-
nesses of question time as a means of scrutinising the government,
and explaining what reforms you think should be made to the rules
and/or procedure.
Activity 12.2: Do you think Parliament should be immune from
interference by the courts? Is this immunity necessary? Are they
any circumstances in which the courts would be justified in
intervening?
Many academics, politicians and legal experts have written on
these subjects. Often they disagree with one another.
When you have studied this guide, read your textbook and thought
about these issues, you will be capable of giving your own opinion. In
answering these questions, and examination questions on the same
subjects, we do not mind what answers you give – provided that
you can present a coherent and well-reasoned response. We are not
interested in answers that merely repeat the ideas of some expert.
After all, whose opinion do the examiners want to test?
Your tutor’s opinion?
The opinion of the authors of your textbook?
Your opinion?
Explain?your?opinion
In many of the activities in this subject guide, you will be asked for
an opinion. Here are some examples:
Activity 8.1: What advantages, if any, can you identify in having a
hereditary head of state?
Activity 9.4: Write a brief passage outlining the strengths and weak-
nesses of question time as a means of scrutinising the government,
and explaining what reforms you think should be made to the rules
and/or procedure.
Activity 12.2: Do you think Parliament should be immune from
interference by the courts? Is this immunity necessary? Are they
any circumstances in which the courts would be justified in
intervening?
Many academics, politicians and legal experts have written on
these subjects. Often they disagree with one another.
When you have studied this guide, read your textbook and thought
about these issues, you will be capable of giving your own opinion. In
answering these questions, and examination questions on the same
subjects, we do not mind what answers you give – provided that
you can present a coherent and well-reasoned response. We are not
interested in answers that merely repeat the ideas of some expert.
After all, whose opinion do the examiners want to test?
Your tutor’s opinion?
The opinion of the authors of your textbook?
Your opinion?
Make a note of how comfortable you feel about answering questions in a way that expresses your own opinion. Make a note of how comfortable you feel about answering questions in a way that expresses your own opinion.University of London External Programmer
Summary
In order to understand clearly the separation of powers under the British constitution, it is
necessary to study the relationships between the three major institutions and to examine
any overlaps in personnel and functions. Where such overlaps exist – as most obviously
in the case of the executive sitting in Parliament – it is then important to consider what
factors there are which make the situation acceptable. In the case of the executive in
Parliament, this clearly facilitates scrutiny of the executive, provided that the necessary
procedures are in place.
Public law 4 The separation of powers
Conventions?and?the?separation?of?powers
As we have seen, there are many areas in which the three institutions contravene the doc-
trine of separation of powers. This is explained by the fact that the British constitution is
largely unwritten and has evolved over time, adapting to circumstances as the need arises.
It would be fair to conclude that not only is there no strict separation of powers between
the institutions, but the separation of powers is quite weak. However, it must also be rec-
ognised that, in general, allegations of ‘unconstitutional conduct’ are rare. The explanation
for this anomaly lies in constitutional conventions. The following conventional rules are relevant.In relation to the judiciary:
In relation to the executive:
Members of Parliament will not criticise judicial decisions.Where proceedings are before a court, or imminent, Members of Parliament are barred from raising the issues in debate.The convention of ministerial responsibility (both collective and individual: see Chapter 8) ensures the accountability of government to Parliament.
You should be alert to the concept of separation of powers throughout your study of this
course, where examples of separation of powers are presented. When considering sover-
eignty, for example, you should be aware that the sphere of power conceded to Parliament
to enact laws, to regulate its own procedure, etc. is a clear, if implicit, example of separa-
tion of powers. Equally so is the cautious judicial attitude to questioning the exercise of the
royal prerogative and the courts’ attitudes to the privileges of Parliament. Furthermore,
the Human Rights Act 1998 has had a significant impact on the separation of powers. See
Chapter 15 for further details.
The attitudes of some academics and judges to the separation of powers differ markedly (see
for example the dictum of Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 WLR 142, at p.157).
Activities 4.3–4.5
4.3 To what extent is separation of powers:
a evident and
b desirable under the constitution?
4.4 What is the explanation for the apparent conflict between judges and some academ-
ics? Are these two views capable of being reconciled?
4.5 Critically assess the statutory provisions and constitutional conventions that support
the concept of separation of powers.
Self-assessment questions
1 What are the three ‘organs of government’ whose powers need to be separated?
2 Within the British state, what constitutes the executive?
3 What did the Act of Settlement 1700 do for the position of judges in higher courts?
4 Why, in 1999, was the decision to extradite General Pinochet set aside?
5 What was the significance of the case of M v Home Office (1994)?
Summary
The role of conventions in relation to the separation of powers is critical. Examining the re-
lationships and identifying overlaps reveals only half the constitutional picture. Therefore,
in order to gain a full understanding, attention must be paid to the conventional rules.
University of London External Programmer Sample examination questions
Question 1 ‘Our unwritten constitution rests upon a separation of powers. It also rests
upon a mutual recognition of those powers. It is for Parliament to make new laws and to
amend old laws, including the common law. It is for the courts to interpret and enforce the
law. It is for the government to govern within the law. Each in its own sphere is supreme.’
(Lord Donaldson of Lymington MR in M v Home Office and Another (1994).) Discuss.
Question 2 Critically assess the view, expressed by Walter Bagehot in the nineteenth cen-
tury, that the ‘near fusion’ of the executive and legislature represents the ‘efficient secret’
of the constitution.
Advice on answering the questions
Question 1 This quotation spans all three of the major institutions of the state, and
requires an analysis of the role and powers of each. It also calls for a critical examination
of the degree of separation between them. Start by explaining what the separation of
powers means and explain its constitutional importance – perhaps pointing out that it is a
concept of great antiquity. The next task is to explain briefly the role of each of the major
institutions of the state: the personnel and functions of each. The next – and major – task is
to analyse the relationships between the institutions and explain the extent to which they
overlap in personnel and functions.
You need to discuss each pairing of the institutions, namely, the executive and legislature,
the executive and judiciary, and the legislature and the judiciary. Devote an equal amount
of time to each of the pairings. Too many candidates fail this type of question not because
they do not have the knowledge or understanding, but because they have failed to cover
the whole topic.
Question 2 This question focuses on the executive and the legislature and therefore more
detailed coverage of these institutions is required. Your introduction will be as above:
explaining the rationale for separation of powers and the major institutions.
The bulk of your analysis will be confined to the executive and Parliament. Do not be
tempted to waste valuable time discussing other aspects of separation of powers. You will
gain no marks for material that is irrelevant to the question and will lose marks because
you have deprived yourself of the time to discuss what was required.
Public law 4 The separation of powers
Reflect and review Look through the points listed below:Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.Ready to move on Need to revise first Need to study again
I can explain the constitutional significance of the separation of powers.I can outline the powers and functions of the major institutions.I can identify those areas where functions, personnel
and powers overlap.I can explain the conventional rules which prevent
abuse of power.I can critically assess the relevance of separation of
powers under the constitution.If you ticked ‘need to revise first’, which sections of the chapter are you going to revise?Must revise Revision done
4.1 The major institutions of the British state
4.2 The relationships between the institutions
4.3 Conventions and the separation of pow
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