The Separation Of Powers And Delegated Legislation Notes

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:

  • Leyland, The Constitution of the UK (2^nd 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):

  • ‘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.’

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

  • 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.’:

  • ‘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).

  • Non absolute separation. Some overlap.

But consider Madison’s interpretation of Montesquieu:

• ‘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’:

  • “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:

  • Ivor Jennings:

    • Argued, in Law and the Constitution, 5^th 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.

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

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

  • Executive resolution of purely legal disputes:

    • 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):

  • ‘The diffusion of authority among different centres of decision-making 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:

  • 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’

  • 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.

    • ‘rigid insistence that each function of government is discharged by a separate institution.’

  • 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).

    • ‘[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,...

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