(separation of power)

The provided question requires us for the detail discussion regarding the separation of power. This essay
will basically focus on the three pillars of the state which as per the concept of separation of power
should be separated from one another. Furthermore, we will discuss the concept regarding the
separation of power given by the montesquieu along with the various reasons given by him. Secondly
we will consider the idea given by the Adam tomkin that there are only two pillar of the state i.e. crown
and parliament. In last we will consider that practically how the state works and whether there is
overlap exists between these three practically or not

According to Aristotle there are basically three elements in every constitution namely legislature,
judiciary and executive and there role will be discussed. Legislature is basically a law making body which
makes the law. The purpose of the executive is to implement the law made by the legislature. The role
of executive is to maintain the law and order. Lastly the role judiciary is to interpret the law made by the
legislature. Judiciary is basically made of professional judges who resolve the dispute in accordance with
the law made by the parliament. So these are the basically the state pillars and their purposes. Now the
question is that whether these pillars should have overlap between them or not.

Montesquieu point of view regarding the separation of power between these three pillars is that there
should be strict separation between the legislature, executive and judiciary otherwise there will be a
tyranny. He suggests that if the legislation and executive power comes under the hold of one person
then there will be no liberty and law made by them will be executed tyrannically. Furthermore, he
suggests that if the power of judiciary and legislative comes under the control of single person or in
other words if the judge becomes the legislator then the power over the life and liberty of the citizens
would be unpredictable. And if the judiciary and executive combine together then the judge will have
the force of oppressor. As per Montesquieu these separations between the three elements is necessary
because without the liberty would be replaced by tyranny.

In tidy constitution, there should be no overlap between these three pillars but there are different
reasons that why this concept of separation of powers should has been given value by different
academic writers. So the main reason for separating these three bodies and by distributing powers
them, is for the preservation of liberty. By doing this we will have a system of check and balance on the
powers given to these three bodies so that they can not abuse their power. But on the other hand, Eric
Brandt was the view that our main purpose is the preservation of tyranny or the unpredictable
government. It does not matter whether powers are precisely conferred to the institution. In simple
words Eric means that there is no need for the strict separation of powers and pragmatic approach
should be adopted. But he suggested that there must be precise allocation of power to the institutions
otherwise this would lead to the incompetent government.

Second reason for the separation of power is the Efficiency i.e. concept separation of powers provides
efficient government. But this reason has some defects like if the decisions were given without having
exact information because of it speedily decision results would be unsuccessful. N.W Barbar here stated
that different points should be considered in order to see whether the institutions are being run
efficiently. So, structure and skill of thr institution should be taken into account. Knowledge and
experience of the persons who are working in that state should also be considered. Institution’s
information gathering should also be considered. Thirdly, decision making process of the institution
should also be considered. Fourth consideration which should also be considered that is of vulnerability
of the institution to outside pressures.

So this was the Montesquieu point of view regarding the strict separation of power. On the other hand,
after the british civil war in the 17th century Adam Tomkins consider the bipolar aspect, which is better
than the concept given by Montesquieu. He argued that instead of three are two planks leaning against
each other for mutual support. His point of view regarding the separation of power is that there are
basically two sovereign authorities namely Crown and parliament. These are the only two powers which
the constitution have and every constitutional actor derives their power either form the parliament or
from the crown.

This was a totally different approach given by the Tomkins from the concept regarding strict separation
of powers. It can be said that executives derives their power from the crown and takes oath in the name
of crown. But the issue with the Tomkins idea is that how do the courts fit in this picture in response of
which Tomkins argued that courts also derives their constitutional authority from the Crown.

Now we shall consider the approach taken by the judiciary since there are very doubts and ambiguity
present in the concept regarding separation of power. In the case of Duport Steel v Sirs Lord Diplock was
of the view that although british has unwritten constitution but it does not only depends on the
separation of powers. Parliament is the one who makes the law which is interpreted by the judiciary. In
contrast, lord Mustill in the case od R v Secretary for the state for the home department, ex p Fire
Brigade union stated that in british constitution separation of powers means that parliament, executive
and courts should have their separate domains where parliament makes the law which is implemented
by the judiciary and implemented by the courts in order to see whether law is obeyed.

Furthermore, in the case of Boron mereworth V ministry of justice, it was held by the Lewison J that the
strict separation of powers as given by Montesquieu is not exactly followed but it has always been part
of our constitution. Moreover in the case of R v office of Prime Minister, where PM breaks the promise
for conducting a referendum regarding the planned European treaty was challenged. Court held that
question whether government is bound by such promise is political rather than legal matter. So we have
seen that how the judiciary adopted different views regarding the separation of powers.

In order to understand the importance of separation of power, interaction between these three
institutions must be considered. Practically, it can be seen that overlap between the legislature and
judiciary exists. Schedule 1 to the House of Common disqualification Act 1975 and section 137 of the
constitutional reforms act 2005 states that full time judges are not eligible to act as MPs and full time
are not eligible to act as judges. However MPs can act as part time judges. Lord Hoffman was unable to
act as judge when hunting Act 2004 was considered because he voted in favor of bill, Jackson v AG.

Article 9 of the bill of rights 1689 summarizes the parliamentary democracy as the freedoms of speech,
debates and proceedings which are conducted in the parliament cannot be questioned in any court. The
House of Lords constitutional committee states that courts have always respected the parliament’s way
in which it governs and are always declined to question the proceeding which are conducted in the
parliament. But there is exception set by the House of Lords in the case of Pepper V hart where the
court was of the view that hansard i.e. parliamentary record can be used in the court for the purpose of
evidence. Reasoning given by the House of Lords when making such exception is that court only looked
at what parliament intended and not breaching Article 9. Moreover, discussion of judges and judgments
in parliament which are pending should not be discussed as per Sub Judice rule. If this rule is breached
then speaker and chairman may direct the member to resume his seat.

Now I will discuss the interaction between the government and judiciary. It is the statutory duty owed
by the executive to uphold the judicial independence. There are certain roles of judiciary which are
exercised by the home Secretary (executive). But after the case of ex party venables and Thompson
these rule of executives were reduced because of the human rights cases. Lastly, the interaction
between the government and parliament is much greater in practice and reason for this is that large
number of government ministers are in the house of common. Their membership with the parliament is
because of making them accountable and it can only be done and have practical force if the persons to
whom they are accountable must have enough power and authority to find out the mistakes or errors
and to completely reject the bad proposed laws.

In conclusion it can be said that some have argued that although there is no strict separation of power
as per Montesquieu but it was held in same cases that atleast there must be precise allocation of power
between the institutions. But practically it can be said that overlap between these three institutions
exists.so it can be said the in United Kingdom does not exactly conform with the strict separation of
power.