Devolution Policy and Separation of Powers

The classical doctrine of the separation of powers signifies a distinction between the executive, legislation and judiciary. This essay will examine the features of the doctrine. It will examine whether the separation of powers in the UK constitution is effective at preventing abuse of power by analysing the roles of the legislature, executive and the judiciary. It will examine whether there is sufficient checks and balances exercise by these organs of the government.

The rationale behind the doctrine is to identify the areas of conflict of interest within the organs of the state. Identification of the conflict of interest could be asserted to have both negative and positive aspects. The former aspect occurs when two functions merge they are detrimental to each other. The latter aspect occurs when the two functions are separated, they gain from each other and the entire system also gains from such merger. The former aspect signifies the conflict of interest in respect to the supply of information the public domain and the need to ensure it alignment with tasks of the state organs. The latter aspect signifies the environment that facilitates better access of the public to reliable information and they approach to politics in a different manner as informed public. The question in hand is whether these aspects hold some ground in respect to the effective of the doctrine in preventing abuse of power.

One good example that could be a testimony to the two aspects of the doctrine is that of policy of devolution adopted by the UK. In the late 1990s, the then Labour Government enacted this policy according to which different territories posses different levels of powers and also institutional arrangements. The devolved governments can develop their own policies, covering economic development, health and social policies, customized to their respective territorial needs. This allowed policy divergence with a check and balance mechanism of conforming to the central state policies. There is some sort of policy convergence. However, it also produced certain significant policy divergence examples. The concept of devolution led to granting greater autonomy for Scotland and Wales, which eventually conflicted with Westminster’s highly centralised mode of policymaking. This example sees both the aspect of the conflict of interest that comes with separation of power. The often generalisation of the principle of separation of powers may be subject to challenges. There is a lack of precision in allocating the functions, when regarding the fact that judiciary also makes rules to interpret, apply and develop law just as legislature makes law. It is left to the judiciary to review the legality or enforceability of any law or policy that is passed. In this context, what are the factors that could bring conflict and abuse of their designated power or that could balance the conflict between the powers?

The UK constitution does not have a clear separation of power. The overlap of powers overlap may stem from the difficulty in distinguishing between public and private power. An instance of such an overlap could be seen in the practice of contract state where due to which widespread practice of privatization and regulation has occurred and many and often governmental services, which range from prison system to street cleaning, are performed by the private actors. The judicial dilemma of governance in this respect could be seen in the case of Panel on Takeovers and Mergers, ex parte Datafin, which dealt with the issue of whether the crucial factor was the source of power of the organization or the nature of the organization itself and public consequences of its decisions. In this case the Panel became a non-statutory and self-regulation body that devised a code of conduct with regard to takeovers and mergers of public entities. The court held that the function of the body is public in nature and should be governed by public law. However, in subsequent cases, this function test did not hold and organisations, including charitable, regulatory or religious bodies were held outside the scope of judicial review as the bodies were private entities.

Due process is arguably not in play in governing governmental power. The checks and balances are arguably insufficient when one comes across scandals such as the 2009 public scandal. The aspects of the conflict of the negative and positive aspects of the doctrine of separation of powers could be seen in this scandal. The Green Book published by the House of Commons contains the guidelines around financial allowances of MPs. The scandal is a proved that such guidelines were abused by the MP when they claimed inflated or fraudulent expenses. The MPs in order to hide the facts attempted to prevent disclosure of the details after requests for Freedom of Information were placed. The press argued that the disclosure was in public interest. The requests discloses that the MPs practiced ‘flipping’ by regularly changed the designation of their second home that enabled them claimed full renovation expenses or even avoid paying capital gains. This led to the passing of the Parliamentary Standards Act 2009 establishing an authority to oversee MPs pay and expenses. This scandal fails the rationale behind separation of power to prevent concentration of powers in one body. At the same time, the outcome is also a proof of the positive aspects of the doctrine, which calls for an environment that facilitates better access of the public to reliable information and they approach to politics in a different manner as informed public. However, how will one find such positive aspects in scenarios such as where the British Prime Minister Boris Johnson in 2019 suspended parliament until the time before Britain was due to leave the European Union. This was argued to be a total abuse of power, which was also recognised by the High Court. It must be noted that any power that is grossly uncontrolled, not respectful and unpredictable would become illegitimate. Abuse of state power would do lots of harm to the state. It will cause defects in the legitimacy of the state. However, in respect to the matter above, it is also important that the there is no separation of power in the British political system. The executive, majority party and the Parliament are hierarchically conjoined in the Prime Minister and the cabinet offices. It is rather the self-control of the government that initiates even a simple scrutiny of the activities of the executive and not much because of the pressure from the Parliament or the opposition. This is governed by the norms of inquiry and disclosure of information for informed criticism. However, the effect of checks and balances will be put into doubt if there is a single majority party that could legislate at will.

In such case as mentioned above, will the separation of power, if there were, or the checks and balances work in any case? In the UK, the executive could control the legislature. The members of the Parliament being selected by the party members or activists are answerable to them. The main concern of party members is to support the party when it is in power and withdraw it when it is not in power. This signifies that the power is centralised to the political party in the government. However, separation of power is a core feature of a democracy. In particular respect to sentencing context vis-à-vis human right principles, the doctrine of separation of power is considered by the judicial system in juridical terms. In this regard, the Parliament is the competent authority to implement a framework of sentencing within which the judiciary will operate. However, it is for the judiciary to enforce processing of offenders, which the Parliament cannot influence. The court is autonomous from intervention of the legislature and the executive. The advent of the Constitutional Reform Act 2005, procedural fairness in common law is a testimony to the separation of the judiciary from the other two organs of the government. Such separation is seen in the case of Davidson v The Scottish Ministers or the case of R v Secretary of State for the Home Department, ex parte Al-Hasan. The former case was on an appeal by an inmate to secure a transfer subject to conditions in compliance with ECHR, Article 3 (prohibition of torture). The issue was whether the inmate could obtain the order of specific performance against the Crown or a declaratory order in the light of the Crown Proceedings Act 1947, s21 (appropriate relief). The appeal was refused. Later, Lord Hardie, who was a part of the Extra Division that heard the appeal, was found to have had taken part in the parliamentary passage of the Scotland Bill, which would have had prevented the Scottish Courts from passing orders of specific performance. Davidson’s argument challenging the refusal of the appeal on this ground that the involvement would have had precluded Lord Hardie from adjudicating his appeal was upheld as the Second Division held that his involvement was beyond mere formality. Similar issue arose in the latter case where the officer who was involved in ordering squat search later decided that the search was unlawful.

Cases such as these Davidson and Secretary of State for the Home Department, ex parte Al-Hasan establish that the effect of checks and balances are still enforceable through and enforced by judicial autonomy. In this respect, it could not be said that separation of power has failed to prevent abuse of state power. However, this essay has observed that the negative aspect in the conflict of interest principle seems to hold more weight on the ground, where the centralization of power to a political body in power has caused detriments to other organs of the system. The positive aspect appears to serve as the checks and balances against the negative effect through the autonomous role of the court.

Legislation

The Constitutional Reform Act 2005

The Crown Proceedings Act 1947

Cases

Davidson v The Scottish Ministers (No. 2) [2004] UKHL 34.

R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815.

R v Secretary of State for the Home Department, ex parte Al-Hasan [2005] UKHL 13.

Bibliography

Books

Beetham D and Stuart Weir, Political Power and Democratic Control in Britain (Routledge 1999)

Krygier M, ‘The Rule of Law and State Legitimacy’ in Wojciech Sadurski, Michael Sevel and Kevin Walton, Legitimacy: The State and Beyond (Oxford University Press 2019)

Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge University Press 2010)

Leyland P, The Constitution of the United Kingdom: A Contextual Analysis (Bloomsbury Publishing 2016).

Vibert F, The Rise of the Unelected: Democracy and the New Separation of Powers (Cambridge University Press 2007).

Journals

MacKinnon D, ‘Devolution, state restructuring and policy divergence in the UK’ (2015) 181(1) The Geographical Journal 47-56.