Public Law

Separation of Powers
2022 ZA

Q. Examine the extent to which the separation of powers is a central

feature of the modern UK constitution
The doctrine of separation of power is of vital importance with regards to the
United Kingdom’s system. In this essay, we will discuss that despite the UK not
having a strict Separation of Powers (SOP), this concept is still of fundamental
significance. The executive, the legislature, and the judiciary are the three
branches that make up the state. The doctrine of the separation of powers makes
sure that power is distributed fairly among all organs and prevents power from
being concentrated in one pillar of the state. The primary purpose of SOP is to
ensure a system of “checks and balances” so that each institution works within its
boundaries. We will be considering the origins of this concept as well as the
current role of SOP in UK’s functioning.
The eminent Greek philosopher Aristotle initially highlighted the concept of SOP.
Aristotle referred to these three institutions of the state as “deliberative, the
officials and judicial element. This notion was further explained by Montesquieu.
Montesquieu illustrated the function of SOP by stating “the prevent liberty.. to
prevent tyranny and the abuse of power.” He further stated that “all would be
lost if the same man or the same body….. exercised these three powers.” Another
famous saying was by Lord Acten who said “absolute power…. corrupt
absolutely.” These commentators were of the view that if too much power is
concentrated in one hand it would lead to abuse of power and bad governance.
On the contrary, Adam Tompkins did not agree with Montesquieu’s triplet system
of governance. Tompkins gave a “bipolar” description of Montesquieu concept
and regarded it as a 21st century view of UK’s system. Tomkins was of the view
that there are main institutions rather than three, they are Crown and Parliament.
As the minister and judiciary swear allegiance to the crown. However, this was
criticized as Tomkins did not consider the role of conventions and precedents.
Furthermore, Lord Diplock in the case of Duport Steel v Sirs commented on the
concept of SOP in the UK. Lord Diplock was of the view that “the British
constitution, though largely unwritten, is firmly based on the separation of
powers; Parliament makes the law, the judiciary interprets them.” Similarly, in the
case of Fire Brigades Union Lord Mustill in his dissenting not agreed with the tri
partite concept which Montesquieu. Furthermore, in Baron Mereworth v
Ministry of Justice- Lewison J said “although not quite in the pure form that
Montesquieu imagined, SOP is a part of our (UK) constitution.” These cases and
views of Judges show that SOP is an integral part of the UK’s governance.
The doctrine of SOP tells as per Montesquieu tells us about the three pillars of the
state that is legislature(law-making), executive (implements law) and
judiciary(interprets the law). The legislature includes the King in Parliament, the
House of Commons and House of Lords. As the UK does not have a codified
constitution, the Parliament is the supreme law-making body. The Parliament can
make or unmake law on any subject. The judiciary consists of courts and tribunals.
The judiciary’s main responsibility is interpreting and upholding the law. The
judiciary can also have a check on executive decision through judicial review.
Lastly, the executive comprises the Cabinet, the Prime Minister, the King as the
head of the state, Armed Forces, the Civil Service and the Police. The primary
objective of the executive is to implement the policies. Lord Templeman pointed
out in the case of M v The Home Office that “Parliament makes the law; the
executive carries the law into effect and the judiciary enforce the law.”
The closest practical example of observing SOP is the USA where there is a written
constitution. Article 1,2 and 3 of the American constitution deal with legislature,
executive and judiciary. The main objective of SOP is to ensure that institutions
work independently in their domain. But if there is complete separation this will
lead to a deadlock between the institutions which will eventually hamper the
working of the state as per Bradley and Ewing. As per Sir Ivor Jennings the
institutions should not interfere in the working of each other. Blackstone
endorsed this and stated that there should partial separation as complete
separation will result in a deadlock. Furthermore, having discussed the role of
institution now we will be considering the overlap between these institutions
In the Westminster Model special emphasis is on the working of the executive
and legislature as the Judiciary is separate from these institutions. The executive
and legislature are intrinsically linked in the United Kingdom. The convention is
that the Prime Minister must be a member of House of Commons. Also, the
majority of the cabinet ministers are members from the House of Commons. Also,
the executive has the authority of delegated legislation which the Parliament has
given it. The government of the day controls the Parliament as it is the majority of
party in UK. The integration of these institutions is to ensure stability and
efficiency in the working of the government. The famous legal commentator N.W
Barber stated that “it is efficiency, not liberty which is at the heart of Separation
of Power.” To be more accurate the UK has a partly fused SOP.” It was described
by Bagheot as the “efficient secret of the UK constitution.”
Despite of this the legislature may hold the executive accountable as
the parliament has the people's mandate. Through debates, select committees,
and question time, Parliament keeps the executive accountable. The House of
Commons through a vote of no confidence can remove the government of the
day. The House of Lords may postpone a legislation for a year, which might
disrupt government operations, thus the executive should engage with them. In
the House of Commons Disqualification Act 1975 it is mentioned that the civil
service and armed forces cannot become members of House of Commons. The
same act caps ministers at 95.
Another important relationship is between the executive and judiciary. The
overlap in these institutions is in the sense that the Attorney General and Solicitor
General are officer of the crown and simultaneously they assist the court in
important matters. The concept of Judicial review is an important control which
the judiciary has on the executive. Apart from non justiciable matter (GCHQ) the
courts can question the government of the day. As in the case of Anderson the
court did not challenge the executive’s decision as the matter was pertaining to
national security.
The judiciary and legislature are also entangled, and this relationship is of
extreme importance. The role of judges is to interpret the law. Despite of this
judges do make law which is the domain of Parliament. As was done in the case of
R V R and Donoghue v Stevenson. The Parliament is sovereign, but it did not
refute these decisions and they were endorsed as a result. These are some
instances where the judiciary and legislature overlap worked effectively. On the
contrary, as the Parliament is supreme it can even make retrospective laws as was
done in Burmah Oil which enacted the War Damage Act, 1965. Historically, the
Law Lords used to sit in the House of Lords. They also took part in the debates and
discussions. This was a blatant violation of SOP as these Law Lords were part of
both institutions simultaneously.
The HRA 1998 prompted the passing of the CRA. The ECHR found in the case of
McGonnel v UK that the merging of the legislative and the judiciary constituted a
violation of Article 6 of ECHR. This resulted in a fundamental change in the form
of the CRA 2005. The CRA 2005 is of paramount importance as it was an attempt
to establish an independent judiciary. Before the CRA the Lord Chancellor was the
head of Judiciary, Speaker of the House of Lords and a senior minister of the
cabinet. Hence too much power was concentrated in the hands of one individual.
After the CRA the Lord Chancellor is only a member of the cabinet and no longer
the head of judiciary and speaker. As a result of CRA 2005 the Judicial
Appointments Commission (JAC) came into being which will be responsible for
appointment of judges. Most importantly, the United Kingdom Supreme Court
was formed and the Law Lords will no longer sit in the Parliament. Section 3 of the
CRA requires the Lord Chancellor to uphold judicial independence. Moreover, the
parliamentarians should not discuss matters that are sub judice.
In the end, we can say that the United Kingdom has no absolute framework of
SOP. There is a lot of overlap between the three organs. There has been an
attempt of strict SOP as seen by the CRA but due to uncodified constitution the
fusion between the institution is an effective way to ensure checks and balances.
This system of checks and balances ensures there is no abuse of power. A
complete SOP can result in a constitutional deadlock. Even if the UK does not
have a rigid separation like that of United States but still it is effective in helping
to run the affairs of the state. Despite of the criticism the SOP remains a vital
component of the UK’s constitutional system.