Separation Of Powers Notes

Introduction

- Crux: not much formal SOP in UK, but how much practical adherence to theory?

- Prima facie: lack of formal SOP in UK constitution – esp. between executive + legislature.

• no formal SOP: uncodified constitution, due to historical development (cf. France, USA); overlaps (e.g. Queen: head of all 3 branches).

• [Ld Hailsham]: ‘elective dictatorship’ – legislature effectively controlled by executive.

• [Barendt]: ‘no effective SOP between legislature + executive in the system of checks + balances.’.

• [De Smith & Brazier]: ‘no writer of repute would claim that SOP is a central feature of the modern British Constitution’ (BUT: formalistic view).

• [Prof Hood Phillips]: ‘constitutional myth’.

  - BUT: in practice, some adherence – esp. effective separation of judiciary from other 2 branches.

• practical SOP:

  • 1. statutes + conventions.

  • 2. judicial independence.

• strengthened by recent developments:

  • 1. growth of judicial review (esp. after GCHQ).

  • 2. evolution of substantive rule of law.

  • 3. HRA 1998.

  • 4. A & Others (2004)

  • 5. Jackson (2005)

  • 6. CRA 2005

• in practice: always some adherence to theory + now growing.

  • [Barendt]: ‘there is, however, effective separation of judicial power from the other branches’.

  • [Munro]: ‘although not absolute, [SOP] ought not to be lightly dismissed’.

  • [Ld Steyn, Anderson]: ‘our constitution has never embraced a rigid SOP. The relationship between the legislature and the executive is close [but] the SOP between the judiciary and the legislative and executive branches of government is a strong principle of our system of government’.

  • [Ld Diplock, Duport Steel v Sirs]: ‘UK constitution, though unwritten, is firmly based on the SOP’.

  • [Ld Irvine]: SOP is ‘an ideal which must be pursued in a manner appropriate to contemporary circumstances … a flexible and dynamic approach’.

    Theory

    - Theory of SOP: separation of legislature, executive + judiciary prevents accumulation of power.

• background: Aristotle – need for 3 functions of govt.; Locke: developed idea.

• Montesquieu (De L’Esprit de Lois: analysing English 18C English constitution presenting idealised picture):

  • 1. 3 functions of government: legislative (make law); executive (apply law); judicial (enforce law).

  • 2. 3 organs: legislature; executive; judiciary.

  • 3. 3 functions should be kept separate: no branch should exercise power of another; personnel separate.

    • rationale: prevent concentration of power, protect rights + freedoms ([Ld Acton]: ‘absolute power corrupts absolutely’).

  • but: absolute separation impossible some overlap + checks/balances needed.

• - [Munro]: 3 ideas –

  • 1. no body should form more than 1 part of the 3 organs.

  • 2. 1 organ should not exercise functions of other 2 organs.

  • 1 organ should not interfere with/control functions of other 2 organs.

  - Application:

  • France: Art 16 Declaration of the Rights of Man, 1789: ‘any country in which the safeguarding of rights is not assured, and SOP is not observed, has no constitution’.

  • US constitution: rigid separation – Art 1: legislative power Congress; Art 2: executive power President; Art 3: judicial power Supreme Court + other courts; checks + balances – e.g. President may veto legislation but 1/3 of House must support; e.g. President appoints judges, but Senate must approve.

  UK: weak SOP between executive + legislature.

  - No formal SOP in UK: uncodified constitution, pragmatic not principled development – no upheaval since late 17C (cf. USA, France) overlaps (e.g. Queen: head of all 3 organs).

  - Parliament (usually) controlled by govt. – [Ld Hailsham]: ‘elective dictatorship’ clearly contrary to SOP.

  • structural factors: Parliamentary system

    • convention: executive (PM, ministers) drawn from Parliament + tend to dominate it (+ PM can dissolve Parliament) – [Bagehot]: ‘efficient secret’ of the constitution.

    • FPTS elections (usually return majority) + mass political parties: whip system + culture of political patronage.

      • [Barendt]: ‘the advent of mass political parties has destroyed the semblance of such a system which existed a century ago. Except on rare occasions when there is a significant party split, the government effectively controls the legislature’.

    • govt. defines parliamentary agenda.

    • delegated/subordinate legislation: govt. making law; little scrutiny from govt. (e.g. Orders in Council).

    • weak upper chamber: convention – HoL will not reject bills giving effect to manifesto; anyway can only delay (Parliaments Acts 1911 + 1949).

  • prerogative powers: Parliamentary scrutiny difficult (esp. e.g. foreign affairs).

  - BUT: some SOP – statutes + conventions (cannot judge UK by theoretical standard: pragmatic + gradual constitutional development).

  • 1. Bill of Rights 1688: supremacy of Parliament.

  • 2. House of Commons Disqualification Act 1975:

    • s1: members of civil service, police, army cannot be MPs;

    • s2: limit on no. of MPs who can be ministers (95) prevents complete executive control.

  • 3. parliamentary scrutiny of executive: questions + debates; general + select committees; PCA.

    • Constitutional Reform and Governance Act 2010: parliamentary scrutiny of int’l treaties.

  • 4. conventions – executive accountable:

    • individual ministerial responsibility: ministers accountable to Parliament for dept. + personally.

    • collective cabinet responsibility: cabinet responsible for govt. actions – can face no confidence vote.

  • 5. some independence: Private Members’ Bills (priority on some days).

  - Overall: significant overlap – but structural.

  • [Bolingbroke]: UK does have constitution: system of rules, laws, institutions.

    • pragmatic evolution: no political upheaval since late 17C.

  • Parliamentary system: overlap inevitable most govts. since 1945 have had majority (but not necessarily: small/no majority in 1974; 1977-79; John Major Eurosceptic rebellion; current coalition more independence).

  Practical SOP: independent judiciary

  - Judges well insulated.

  • security of tenure: Act of Settlement 1700; s11 Senior Courts Act 1981 (CC, HC, CoA);...

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