Chapter 4 Separation of Powers

This chapter is concerned with the concept of separation of powers between the three main organs of
the state- legislature, executive and the judiciary. The core idea of such a concept is that there are
different kinds of public function which need to be distinguished, and which need to be exercised by
separate institutions or personnel to prevent the overconcentration of power in one’s hands, thus
reflecting checks and balances in the system. The essay is primarily concerned with examining the
present constitutional system in UK and see why and how should the separation of powers occur in UK.

In its institutional form, separation of powers suggests that the three functions must be exercised by
completely different institutions i.e. law making b done by the legislature; executive functions should
only be carried out by the government; and the courts alone should be responsible for the judicial
functions. In UK the law is made by the Parliament; foreign relations, administration and national
policies on a wide range of issues are developed by the executive; and the judges apply law to resolve
the disputes.

In its personnel form, the concept requires that a single person should not exercise more than one
function. If a person is a member of the legislature, he should not be a part of the executive or the
judiciary, and so on. UK does not adhere to this personnel form as members of the Parliament, for
example, are members of the Executive- the government is drawn from the party having the highest
number of votes in the Commons and the leader of the winning party becomes the Prime Minister.

There are three main reasons as to why theorists and practically minded people find the separation of
powers interesting. Firstly, it is a guiding principle for the creation of a constitutional system. Secondly, it
protects liberty as it prevents abuse of power because the power is not curtailed in the hands of the
few. In 1748 the French jurist, Montesquieu, put forward his theory that ‘there can be no liberty' and
also said that “everything would come to an end if the legislative, executive and judicial powers of
government were to be exercised by the same person or authority”. Thirdly, according to N.W. Barber it
is efficiency and not liberty at the heart of the concept. If the powers are allocated to the rights
institutions sensibly, it is more likely that they would be exercised efficiently.

According to Aristotle, there are three elements in each constitution, first the deliberative, which
discusses everything of common importance; second, the officials; and third, the judicial element. He
clearly identifies a more democratic approach to power. Aristotle's three limbs of government is a
reflection to that in the UK although not as developed. The UK's three organs each carries its own
responsibilities and sometimes carries that of other limbs where overlaps occur. The legislature in a
simple manner is the body which creates the laws to regulate the deeds of individuals and private
organizations. In effect the legislator is easily identified as the UK Parliament which comprises of the
House of Commons and the House of Lords.

The Executive is not as straight forward to define, however, it is appropriate to symbolize the executive
by its head, the Monarch. The Monarch is the head of the executive and others who complete the
executive are those who carry out government duties such as civil servants, members of the armed
forces, the police, the local authorities and many statutory bodies. Members of the executive are often
disallowed from becoming MP's with an exception for ministers. Although this is a separate limb
Parliament gives the Judiciary the right to moderate the work of the executive through judicial review.
The judicial function is simply exercised by the courts and they carry out the job passed down by the
legislator to interpret and apply the law. However, the judiciary sometimes makes laws of its own when
there is no legislation to apply in the form of the common law- the decision of a higher court is binding
on the lower court by way of judicial precedent. This provides an obvious overlap as the legislator or
Parliament is the primary law making body.

Professor Tomkins has conflicts with the separation of powers and has instead given his ‘Crown v.
Parliament’ thesis. He states that the tripartite division does not reflect the historical development of
the English constitution. Also he was of the opinion that constitutional power is divided between the
Parliament and the Crown, rather than the three organs of the state. He referred to the Civil War which
was a dispute between the Crown and the Parliament. He thus argues that the separation of power
English style is a bipolar separation and every constitutional actor falls on one side of this great divide.
This facilitates accountability and documents such as Magna Carta, Bill of Rights and Act of Settlement
were instruments of holding the power of the Crown to some form of parliamentary account.

Tomkins has further given three evidences to support his thesis- firstly, that when an Act of Parliament is
formed, it passes through the necessary parliamentary stages and receives the royal assent thereby
bringing the two sovereigns together. Secondly, he refers to the constitutional convention that ministers
of the Crow are accountable to the Parliament. They are the monarch’s advisors and may exercise
powers on behalf of the monarch. In order for them to be accountable to the Parliament they should
simultaneously then be a part of the Parliament. Thirdly he referred to the case of M v. The Home Office
where he argued that the courts have found it really difficult to subject the Crown and its sovereign
authority to the rule of law.

There are various cases where the senior members of the judiciary have given their
understanding of the separation of powers principle:

 R v. Secretary of State for the Home Department Exparte Fire Brigades Union 1995:

The minister had acted unlawfully when he decided not to rely on the statutory scheme of
compensating victims of criminal violence, while making delegated legislation. He instead planned to put
the non statutory scheme because it was cheaper. The House of Lords held by a three two majority that
the minister had acted unlawfully by deciding that he would never bring into force a provision that had
been passed by Parliament. Lord Mustill who dissented reflected the nature of separation of powers in
his speech by stating that the three organs of the state have their distinct domain. Parliament can make
any law as it wishes; the executive carries on the administration of the country in accordance with the
powers conferred on it by law; while the courts interpret the laws and ensure that they are obeyed. The
courts along with the Parliament can trespass into the boundaries of the executive to ensure that they
are following the laws made by the Parliament following the proper procedure.
  A v. Secretary of State for the Home Department:

The issue here was whether the powers under the Anti Terrorism, Crime and Security Act 2001 to
detain foreign terrorist suspects indefinitely breached Convention rights or not. The Lords held them to
be incompatible with the Convention rights and were later replaced by the system of control orders
under the Prevention of Terrorism Act 2005. Only where there was a public emergency would there be
a legal basis under the ECHR for the government to derogate from its obligations to respect the right to
liberty protected by Article 5. Lord Bingham here was of the opinion that the more political a question is,
the more appropriate it will be for political resolution and less likely it is to be an appropriate matter for
judicial decision. The present question in the case was very much likely to be towards the political
spectrum.

 R (on the application of Cart) v. Upper Tribunal; R (on the application of U and XC) v. Special
Immigration Appeals Commission:

The issue here was whether the legality of decisions of the Special Immigration Appeals Commission and
Upper Tribunal could be challenged in claims for judicial review. They were superior courts of record and
it was contended that this status exempted them from judicial review challenges. Lord Philips was of the
opinion that where the statute provides a structure under which a superior court reviews decisions of an
inferior court, common aw judicial review should be restricted so as to ensure, in the interest of making
the best possible use of judicial resources, that this does not result in a duplication of judicial process
that cannot be justified by demands of the rule of law. The Court thus held that both bodies wee
amenable to judicial review.

Interactions between Parliament, Executive and Judges:

There are many constitutional rules some contained in the legislation while some in constitutional
conventions which govern the interactions between those who exercise judicial, legislative and
executive powers.

Judges and the Parliament:

 Can members of Parliament be judges:
Statutory rules state that MPs and peers are not eligible to serve as full time members of the judiciary
and vice versa. There is however no prohibition on them to hold part time judicial appointments.

 Can judges participate in the legislative process:

Until 2009, the Lords of Appeal in Ordinary and some senior judges were allowed to sit in the House of
Lords and vote during the legislative work. The ECtHR takes the view that an accumulation of functions
in the judicial and legislative roles gives rise to doubts regarding the impartiality of the judges. Judges
also used to take part in chairing the EU Select Committee Sub Committee E which examined proposals
in the area of EU law and institutions. When the Supreme Court was formed in 2009, all these roles
came to an end.
From time to time judges do make suggestions for legislative reform. They also have a role in the making
of delegated legislation about court procedures under S45 of the Constitutional Reforms Act 2005.

 Can judges scrutinize parliamentary matters:

According to Article IX of the Bill of Rights, the freedom of speech and debates in Parliament ought not
to be questioned in any court or place out of the Parliament. This embodies a fundamental feature of
the UK constitution that there needs to be a clear borderline between the functions of the Parliament
and the judges. The major exception however to this is contained in the ruling of Pepper v. Hart 1993
which allowed the courts to refer to Hansard while interpreting statutes. Hansard comprises of the
parliamentary debates about a certain bill. This would only be possible if the statutory provision that the
court is trying to interpret is ambiguous, and the minister’s statement itself is clear. This would then not
breach Article 9 of the Bill of Rights because the court was seeking to give effect to the intention of the
Parliament rather than questioning it. The decision has been criticized on the basis that it results in
confusion between the intention of the Parliament and that of the minister. The use of Hansard has
been limited. In Wilson v. Secretary of State for Trade and Industry, Lord Nicholls pointed out that the
content of parliamentary debates has nothing to do with the decision of the compatibility cases
(legislation being in compliance with the Human Rights Act).

 Can members of Parliament discuss judges and judgments:

Just as the courts try not to intervene in parliamentary matters the Parliament too tries to steer away
from the undue interference with courts and judges. The Sub judice rule requires that MPs should not
seek to bring up in debates, questions and motion cases that are pending or being heard by a court. The
rational for this rule is that discussing the case may have a prejudicial effect and may prevent the parties
from having a fair trial. There is however always the discretion with the Speaker and the Lord Speaker to
allow discussion if it is in the national interest.
This then does not mean that the parliamentarians cannot inquire into how courts interpret and apply
legislation. The Joint Committee on Human Rights reported that the courts had taken a wrong approach
in deciding that private care homes were not covered by the HRA. These findings encouraged the
Parliament to reverse the House of Lords’ decision which had maintained a narrow approach to the
meaning of ‘function of a public nature’.

Judges and the Executive:

According to the Constitutional Reforms Act 2005, the ministers are under a duty to uphold the
independence of the judiciary and the Lord Chancellor has to play a role in defending such
independence.
Judges on the other hand, can challenge the actions of the executive on the basis of judicial review on
grounds of illegality, irrationality and procedural impropriety. Judicial review is a process of
administrative justice that examines the procedure and legality of a government action. If the action has
exceeded the framework in the parent act, it is ultra vires and is quashed. In R v. Secretary of State for
the Home Department v. JJ, the Lords ruled that an 18 hour curfew amounted to a breach of liberty
under Article 5; the control order was declared ultra vires.
Also if appeals in UK fail, the appellants can always take their case to the ECtHR, where the ruling will be
seen as binding on the English legal system.
However the problem for the judges is that they must wait for the cases to come to them which means
they can only keep a check on the executive if the cases come to them. In 2001 the government
detained foreign nationals under the Anti Terrorism Act and held them for three years before the
Belmarsh case ordered their release.

Executive and the Parliament:

In parliamentary form of government the ministers are required to be members of the Parliament. This
arrangement is justified as it enables Parliament to hold ministers to account on a regular basis, but the
problem is that ministers dominate the work of the Parliament, especially in matters of legislative
process (Whitehall Model). The role of the UK Parliament is largely reactive i.e. its role is to scrutinize
and then approve or reject proposals from the government. There are few opportunities for members of
the legislature whether MPs or peers who are not members of the government to initiate legislation and
see it through enactment: few private members’ bills reach the statute book!
However there are limited legal constraints on the executive. A cap is placed on the total number of MPs
who can serve as ministers. Civil servants, members of the armed forces, police officers are disqualified
from being MPs under the House of Commons Disqualification Act. Except for ministers, there is also a
general prohibition on an MP holding an office or place of profit under the Crown. This provides a
procedural device for MP’s resignation- he or she is appointed temporarily to an office of the Crown and
is thus disqualified from sitting in the Commons.
Parliament ensures the accountability of the executive in several ways:
 Question time: Ministers have to regularly appear before the Parliament to answer questions
from different MPs on government policies. The problem is that it is ineffective as oral questions
seldom produce detailed response.
 Select Committees: They scrutinize the government policy in detail and shadow the work of each
major department. They carry out inquiries, ask ministers questions, and can ask to see the
government papers as well.

Conclusion:

It can be safely said that there is no distinct system of separation of powers in the United Kingdom.
There are great overlaps between the three organs. There has been a tendency towards such a doctrine
as is evident from the CRA 2005, but in the absence of a codified constitution, the fusion of power is an
effective way of keeping a check on all the three organs of the state.
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