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The Separation Of Powers And Delegated Legislation Notes

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The Separation of Powers and Delegated
Legislation
The Separation of Powers: The Traditional Concept
Is the separation a means or an end?Means to protect liberty and prevent the exercise of arbitrary power.

Basic concept:
o

Leyland, The Constitution of the UK (2nd Edn) at 72:

'The rationale behind the prescriptive doctrine of separation of powers is to avoid the concentration of power in the hands of any single person or body.'

Montesquieu, The Spirit of the Laws (1748):
o

'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty because apprehensions may rise, lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.'

o

He added that it was equally important for the judicial power to be wholly independent.- Completely separate spheres.

o

Flawed as doesn't take into account accountability and appointment.

James Madison, The Federalist Papers, Nos. 47-51: 'The Meaning of the
Maxim, which Requires a Separation of the Departments of Power,
Examined and Ascertained.':
o

'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,
and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.' (Federalist No.
47).

o

Non absolute separation. Some overlap.

But consider Madison's interpretation of Montesquieu:
o

'His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye (i.e. Britain),
can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him,
if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.' (Federalist No. 47).

Bagehot, The English Constitution (1865), Ch.1 'The Cabinet': o

o o

"The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the cabinet. By that new word we mean a committee of the legislative body selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence. It does not,
it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly."
Dismisses Montesquieu's traditional view.
Clear fusion.

Other writers on the British constitution:
o

Ivor Jennings:

Flagrant breaches of the separation of powers on any view:
o

Acts of Attainder: The legislative determination of guilt or responsibility.

o

Executive resolution of purely legal disputes:


Argued, in Law and the Constitution, 5th edn, against the doctrine, that there are no material differences between the three functions. The only good grounds for distributing functions was whether some institution is effective.

Prohibitions del Roy (1607) 12 Co. Rep. 63: 'A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did not belong to the common law: then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it:'

Contemporary Theoretical Accounts: UK Perspectives

Eric Vile, Constitutionalism and the Separation of Powers (1967):
o

'The diffusion of authority among different centres of decisionmaking is the antithesis of totalitarianism or absolutism.' And 'We are not prepared to accept that government can become, on the grounds of 'efficiency' or for any other reason, a single undifferentiated monolithic structure.'

Geoffrey Marshall:
o

Very critical of the doctrine - see his book Constitutional Theory
(1971), ch.V and esp. p.124: 'it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds.'

Eric Barendt, 'Separation of powers and constitutional government'
o

Pure theory: complete separation of the three branches of state, a strict delineation of functions between the executive, the legislature and the judiciary. The division of power is a restraint on the state.

o

Partial theory: checks and balances are significant. Each institution has some power over the others and their functions overlap. There is friction between organs of state and there is never complete autonomy. Supports the partial separation of powers
(checks and balances).

o

'rigid insistence that each function of government is discharged by a separate institution.'

'[T]he separation of powers is not in essence concerned with the allocation of functions as such. Its primary purpose…is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power. The allocation of functions between three, or perhaps more, branches of government is only a means to achieve that end. It does not matter, therefore, whether powers are always allocated precisely to the most appropriate institution - although an insensitive allocation would probably produce incompetent government and run counter to Locke's efficiency rationale.'
(p.606)

Implications of the separation of powers:

'The separation of powers principle is therefore not simply a forma guide to the organization of state power. It can be given teeth by constitutional courts to reinforce the protection conferred by the constitution on individual rights,
and to prevent one branch of government from accumulating excessive powers. [I]t is not as vacuous as its English critics have alleged.'

 Institutional separation: the people in the institutions are distinct
 Functional separation: the jobs they carry out are distinct
Jennings: since there are no material distinctions between the three functions of the state, there is no reason why certain tasks should be given to one body rather than another.
Contrasts Jennings' and Marshall's argument: "the separation of powers is not in essence concerned with the allocation of functions as such. Its primary purpose,
is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power." Checks and balances exist between institutions that might otherwise exercise excessive power. Madison in the Federalist Papers says the government should be arranged so that "its several constituent parts may, by their mutual relations,
be the means of keeping each other in their proper places."
There is no effective separation of powers between legislature and executive in the United Kingdom in the sense of a system of "checks and balances". There is however an effective separation of judicial power from the other branches. The existing examples are:

Statutory limit on ministers sitting in the Commons
Judges are separated from other peers

It is hard to establish a separation of powers without a codified constitution.

Nick Barber, 'Prelude to the Separation of Powers'
o

'The essence, though not the whole, of separation of powers lies in the meeting of form and function; the matching of tasks to those bodies best suited to execute them. The core of the doctrine is not liberty, as many writers have assumed, but efficiency.' p.59.

o

Constitution should be 'efficient':

o

The Separation of Powers is limited:

o

Courts should match form to function (73). He explores how this principle can be observed by examining courts, deviant courts and legislatures:

'Triadic'; reliance on information presented by parties, problems with polycentric issues: '[Courts] are strong when faced with issues that can be contained within the triadic model, they become weaker as this model is departed from….Their competence is placed under pressure as they move from [deciding discrete issues that are regulated by pre-existing law] towards the broader goal of setting social policy.' (79).

Courts:

Legislatures:

they are large, so they comprise a range of diverse opinion; it is useful for discussing and challenging proposed legislation and policy decisions of the executive. They are not 'experts' so should not try to constantly reject expert choices made by the government, which does and should draft legislation;
but they are 'at least as good' as other institutions for resolving problems
'that do not admit of a technical solution.'

Executive:

Too complex to outline. [87]

Form and function is merged (necessary for efficiency instead of liberty).

The tripartite version of the state should be abandoned. There should be overlap between institutions and courts should have a larger constitutional role. A strong state does not have to have the separation of powers. - N. W.

Barber: 

Political theory: aims to set goals that collective action should pursue (ends),
decides who should pursue those aims, and what should be done when there is dispute regarding the first two points. Therefore, it is difficult to discuss separation of powers in the abstract. Separation of powers will depend on the particular political theories they are derived from (limitation of separation of powers).

Constitutional theory: practical ordering of power-wielding institutions and the structures of the relationship of the individual with them (means).
Constitutional theory on its own will fail since local conditions must always be taken into account (contrasts Hayek's view that drafting a utopian constitution is useful).

Believes constitutional drafting depends on social and geographic backgrounds and the different political theories that are used.

Separation of powers into three branches is not applicable in the modern age due to:More than one category involved in the separation of powers (the
European Commission, devolution).
All three branches of the state can collapse so there is not a single body but several linked ones (legislative power transfer to Europe).

Believes the triadic model (judge or judges, adjudicating between two parties) of the courts is not efficient especially in polycentric issues in which third parties are not represented. Believes this can be fixed by deviant courts (courts that change according to the needs of parties such as: larger courts higher in the hierarchy, lay members to broaden experience).
Believes the current structure of the legislative is weak because they lack technical expertise and the majority is constantly shifting.
Separation of powers cannot have normative force without the support of political theory and the consideration of the local environment. There are many different doctrines of separation of power due to differences in states

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