Examining Perspectives on Separation of Powers in the British Constitution

What is the role of the principle of separation of powers in British constitution?

Dicey recognised separation of powers as a part of the British constitution. On the other hand, Bagehot has stated that there is no complete separation of powers in the UK because there is a nearly complete fusion of the executive and legislative powers. In DPP of Jamaica v Mollison, strict separation of powers between the judiciary and legislature was accepted by the court as an important constitutional law principle.

As per separation of powers, each organ of the government has its specific functions, which only it can perform to the exclusion of the others.Law making is the function of the Parliament, which is the primary institution to make legislation and also debate current ongoing issues, and the function of the judiciary is to interpret and apply the law.

Is the court the proper forum for the creation of a new crime?

In Shaw v. Director of Public Prosecutions [1962] A.C. 220, the defendant was convicted on an indictment for conspiracy to corrupt public morals even though no such crime existed at the time in the law of England.

Courts have not been consistent in their approach to creation of new crimes as an aspect of separation of powers. In R v R, the court created the offence of marital rape although no such offence was laid down by the legislation. On the other hand, in C v DPP, the House of Lords refused to change a common law presumption related to criminal responsibility under 14 years of age.

Does the court have a residual power that can allow it to create a new crime?

In Shaw v DPP, the court held that they have a ‘a residual power’ to protect the moral welfare of the State. A legal moralism approach was used by the courts to create a new crime.

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Courts exercise both original and residual law making powers in the UK.

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1. Albert Venn Dicey, The law of the Constitution, Vol. 1 (Oxford: OUP 2013).
2. Walter Bagehot, The English Constitution (Chapman & Hall 1867).
3. Roger Masterman, The Separation of Powers in the Contemporary Constitution: and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010) 27.
4. Andy Williams, UK Government & Politics (Oxford: Heinemann 1998).
5. Shaw v. Director of Public Prosecutions [1962] A.C. 220.
6. R v R [1991] UKHL 12.
7. C v DPP [1995] UKHL 15.
8. Shaw v DPP [1962] AC 220.
9. Katharina Pestor and Chenggang Xu, ‘The challenge of incomplete law and how different legal systems respond’, Albert Breton and M. J. Trebilcock (eds.), Bijuralism: An Economic Approach (Surrey: Ashgate 2006) 78.

An argument is made against judge-made law by Sir Philip Sales, who argues that legislature is constituted to give effect to democratic principles because laws are made by representatives of people, while judges represent no-one.

Does Shaw represent a case of judicial activism and how does that fit in with parliamentary sovereignty principle?

Lord Reid in his dissenting judgment in Shaw noted that the only proper place to settle such questions is the parliament. The question arises whether Shaw was a case of judicial activism.

Difference between judicial law making and judicial activism. Laying down principles of law on which Parliament has not legislated as yet may not be judicial activism, which is a more serious encroachment of parliamentary sovereignty.

Judicial activism includes departing from precedents, interpreting legislation in unexpected ways; defying the government’s social, economic and foreign policies, and developing the common law.

Parliamentary sovereignty is one of the principles of constitutional law. Judicial activism can be seen as a challenge to the principle of parliamentary sovereignty.

Books

Bagehot W, The English Constitution (Chapman & Hall 1867).

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10. Sir Philip Sales, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.
11. B Dickson, ‘Activism and Restraint within the UK Supreme Court’ (2015) EJoCLI, 21(1).
12. D Oliver and G Drewry, The Law and Parliament (Cambridge: Cambridge University Press 1998).
13. Ibid.

Dicey AV, The law of the Constitution, Vol. 1 (Oxford: OUP 2013).

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

Oliver D and Drewry G, The Law and Parliament (Cambridge: Cambridge University Press 1998).

Pestor K and Xu C, ‘The challenge of incomplete law and how different legal systems respond’, Albert Breton and M. J. Trebilcock (eds.), Bijuralism: An Economic Approach (

Surrey: Ashgate 2006).

Williams A, UK Government & Politics (Oxford: Heinemann 1998).

Journals

Dickson B, ‘Activism and Restraint within the UK Supreme Court’ (2015) EJoCLI, 21(1).

Sales P, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.