Separation of Powers and the Constitutional Government

“… the separation of powers should not be explained in terms of a strict distribution of functions between the three branches of government, but in terms of a network of rules and principles which ensure that power is not concentrated in the hands of one branch.”

Eric Barendt, “Separation of powers and constitutional government” [1995] PL, Win 599-619

Critically discuss the extent to which the UK constitution guards against excessive concentration of power.

Those who analyze to which extent the UK constitution guards against excessive concentration of power also take into account characteristics of the British Constitution. Most countries have written constitution, where structure and functions are clearly stated. In Britain there is no written constitution but it does not mean it lacks constitutional principles. “Perhaps the most remarkable characteristic of the UK’s constitution is its almost entirely flexible nature.” (Helen Fenwick and Gavin Phillipson, 2006 p.16)

The doctrine of the separation of powers is an important principle which underlines the way in which power is exercised in the state. In Britain, the separation of powers exists in its own very special way.

A need in the separation of powers was discussed as long ago as Aristotle times. Writers were concerned that if legislative, executive and judicial powers were concentrated in the same person or body, that body would become too powerful and would abuse this power sooner or later. It was discussed that in order to avoid it, the power must be distributed. It was argued that each body should be able to check and balance the power of one another. The modern view on the doctrine of separation of powers and theoretical “structure” is given by Professor Munro. As he mentioned, Montesquieu developed this theory further: “The three agencies of Government should perform their functions separately.” (Colin Munro 1987 p.191) His views were very influential on the degree of separation.

In my essay I shall be looking at factors specific to the United Kingdom and will raise and discuss a number of questions. Is there a strict separation of powers in the UK like in other states? Is there an appropriate system to check and balance power in the UK? This essay examines to what extent organs of the UK oversee each other and work together to prevent excessive concentration of power and abuse of power by any one body or at least limits its impact. I will examine the doctrine of the separation of powers in the context of British Constitution in order to critically discuss this essay question.

According to Ian Loveland “…the basic point to distill from the separation of powers doctrine as it applies to the British constitution is that the government function can be divided into three discrete activities.” (Ian Loveland 2009 p.54) These are legislation, execution and the third body is the courts. This is very similar to the system in other States. For a better understanding of the three divisions in the UK, Ian Loveland offers to analyze “…a celebrated eighteenth-century case – Entick v Carrington” (Ian Loveland 2009 p.55) It is clear from the facts of the case that a legal remedy is available to citizens when the government acts unlawfully. Thus the state has to act within legal authority and it is not above the law.

However there is an overlap in personnel and functions within the UK Constitution. De Smith in relation to a separation of powers in the UK argued that “No writer of repute would claim that it is a central feature of the modern British constitution” (S de Smith and R Brazier 1998 p.18)

In terms of personnel, there is a clear overlap between members of the executive and the legislature with members of the government performing both executive and legislative powers. “The efficient secret of the English constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers.” (W Bagehot, The English Constitution, Oxford University Press, 2001, p 11) This is due to parliamentary government “…in which the government is drawn from the legislative body as opposed to France and the US, where the president is elected entirely separately.”(Helen Fenwick and Gavin Phillipson 2006 p. 41) Government cannot make a primary legislation but only a Parliament can do. However there is a delegated legislation and courts ensure that it is not abused. A clear example is the case where the minister issued a regulation and the court agreed that it was ultra vires as in Chester v Bateson [1920]1 KB 829

There is an overlap involving the judiciary performing legislative functions, since it is a common law system in the UK. “It is artificial to deny that judges “make law”.( H Barnett, Constitutional and Administrative Law 2006 p.109) A clear example is the case of RvR [1994] 1AC 599 In this case the House of Lords set aside the long standing common law rule that a husband could not rape his wife. “The House of Lords then concluded that overturning the previous common law rule was a task that could appropriately be undertaken by the courts. There was no need to wait for Parliament to enact legislation changing the law.” (Ian Loveland 2009 p. 81) Furthermore, case Malone v Metropolitan Police Commissioner [1979] 1 All ER 529 shows that though judges do legislate, the extension of rights is different to creation of wholly new rights. “If we (cynically) accept that governments are happiest when their actions escape legal control, it makes little sense merely to invite them to promote legislation subjecting unregulated powers to judicial supervision.” (Ian Loveland 2009 p. 575) Another institute, which is a part of central government and so a part of the executive, a privy council shows an overlap involving executive performing legislative and judicial functions. Although it’s importance is much less nowadays. It is described as “little more than an organ for giving formal effect to certain acts done under prerogative or statutory powers.” (O Hood Phillips, P Jackson and P Leopold, Constitutional and Administrative Law, 8th edition, Sweet and Maxwell, 2001 p.334) Changes to the office of the Lord Chancellor made by the Constitutional Reform Act 2005 are very significant in guarding against excessive concentration of power in the UK. Historically Lord Chancellor has formed part of all three institutions in the UK. With the Constitutional Reform Act 2005 the office –holder of the Lord Chancellor cannot hold judicial office. “It can no longer be appropriate for a senior judge to sit in Cabinet or for a Government Minister to be our county’s senior judge. I have myself made it clear that I shall not sit judicially.” (Constitutional Reform: reforming the office of the Lord Chancellor CP 13/03 2003 pp5-6) The Human Rights Act (HRA) 1998 also oversees the doctrine of separation of powers. “ If a court considers that legislation is in conflict with a right protected by the European Convention of Human Rights, the court has the power to make a “declaration of incompatibility” under s.4 of the HRA.” (Constitutional and Administrative Law, GDL manual 2009-20010,p.29)

To conclude, it is important to highlight that Britain has its own historically developed constitution which is very different from all written constitutions. It also contains features which are unique to countries with parliamentary government. Although there is no strict separation of powers in the UK and even though there is an overlap between the three elements, practice shows that it has a system of checks and balances. Different organs of the state act to restrain each other and prevent the other institutions from exceeding their power and each body is trying to retain their powers. The flexible nature of the UK system allows various institutions to work together. They oversee each other and prevent the abuse of power which could be the case if it was uncontrolled and excessively concentrated in one body.