Separation Of Power Notes

SEPARATION OF POWERS

refers to idea that major functions of the state should be performed by distinct institutions

Montesquieu, The Spirit of the Laws (1748) described three branches of government

• Legislature: enacts laws

• Executive: administration: making implementing public policy

• Judiciary: adjudicates and imposes sanctions for breaking the law

Why embrace the SoP?

• In absence of distinct institutions: all falling to single one – risk of concentration of power abuse

• Purposeful principle: not an end in itself but a means to an end

Marshall (1971): argues SoP = umbrella for a miscellaneous collection of principles, each of which can be justified in its own rights, such as judicial independence

In UK unwritten constitution:

• SoP not applied systematically but in pragmatic ways in particular contexts most strongly in relation to judiciary: judicial independence is essential feature of RoL

• Doctrine of parliamentary supremacy makes true separation of powers impossible

Different conceptions of the separation of powers

1. Pure – functions entirely separate

Absolute independence – crystal clear division between legislature, executive and judiciary

• Suggests that very fact of separation is sufficient to “establish and maintain liberty” – MCJ Vile

Problem: absolute independence each branch is free of any form of control or oversight

2. Partial separation

Striking a balance between independence of gov institutions and existence of relationships between them to ensure that each branch remains in its proper place

• Each branch has different functions but each can police limits of the others – system of “checks and balances”: each branch might legitimately influence or impose limits on actions of another

Nolan J in M v Home Office (1992): “proper constitutional relationship“ between the exec and the courts = courts will respect all acts of the exec within its lawful province + exec will respect all decisions of the court as to what its lawful province is.

Separation of powers in the UK

British constitutional arrangements illustrate partial conception of SoP

• Lord Steyn in Anderson (2002) said that UK constitution has never embraced a rigid doctrine of SoP:

  • Relationship between legislature and exec is close BUT

  • SoP between judiciary and other branches = “a strong principle of our system of government”

• Masterman (2011): SoP in the UK constitution concerns the contours separating judicial, exec and legislative powers idea reflected in the status of, and interactions between, institutions of gov and rules and principles by which relationships are managed

1. Legislature and executive

Bagehot (1876) described a” nearly complete fusion” of the legislative and executive powers

Lord Hailsham (1978): British system of government = “elective dictatorship”

• Ind chosen as prime minister = person who has the greatest control of Parliament system means that exec guaranteed to have large amount of power over the HoC

• Fusion in personnel: by convention, gov ministers drawn mainly from elected MPs sitting in HoC

  • Constructive breach? strengthens accountability of ministers + ensure that gov business is not paralysed by gridlock that strict separation between Parl and exec could produce

1. Executive law-making authority

Considerable overlap in that while Parl has no executive functions, the exec is involved in law-making:

• Responsible in practice for most legislative proposals

• Bulk of legislation = delegated made directly by executive bodies under powers conferred by Statutes

  • Typically lay down general principle conferring minister power to make detailed rules

    • Delegated law-making powers may be very wide: Henry VIII clause permit minister to overturn or amend Acts of Parliament past or future

  • Common for a statute to come into effect when triggered by minister

Delegated legislation often criticised as infringement of SoP but justifiable on practical necessity grounds:

• Eases pressure on Parl time: difficult to image complex + highly regulated society functioning effectively otherwise – Parl would not be able to pass extra 3000 statutory instruments a year

• Provides flexibility to allow for rapid changes in light of circumstances, i.e. emergency

• Parl unable to deal with technical + detailed legislation: e.g. MPs lack necessary expertise to draft legislation on road traffic details or health and safety regulation

Very limited parliamentary scrutiny

• Some, in line with Parent act, must be laid before Parliament:

  • Affirmative instrument: not come into force until actively agreed to by both Houses

  • Negative instrument: take effect unless either House takes steps to disapprove it (40 days)

Distinction often criticised as arbitrary + unfounded

• Committees scrutinising statutory instruments, e.g. Joint Committee on Statutory Instruments set up in 2010, but cannot amend instruments and only report its findings to either House.

2. Checks and balances

Checks and balance between Parl and Exec at the heart of the political constitution but made uncertain by overlapping membership of HoC and domination by the exec of procedures of the House

• Legislature is protected against executive by statute and convention

  • Fixed Term Parliaments Act 2011 suspended executive power to remove legislature

• Ministerial responsibility: ind ministers accountable to Parliament for all their departments activities

• Parliament votes funds to the executive + can oust a gov by passing a motion of no-confidence (if no other gov can command HoC, Parl is dissolved)

• Legislature can hold exec to account by means of debate, oral/written questions + select committees

HoL, composition not dominated by the exec, could be regarded as partial check over exec:

• However, under Parliament Acts 1911 and 1949 HoL cannot veto a bill introduced in the Commons, other than a bill to prolong the life of Parliament

• Jackson v AG (2005): HoL disagreed but left open whether there might be exceptional cases (e.g. where exec was attempting to subvert...

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