Foundations of Separation of Powers in the United Kingdom

Introduction

Although the colloquial definition of ‘Democracy’ often loosely labels it to one’s power to elect its government, the term has been constructed on the subtle podium of a time-honoured concept which is widely recognised as the ‘theory of separation of powers’. Separation of Power, in its true essence, derives its basic principles from the skeleton of the unwritten constitution of the United Kingdom and inspires the rest of the world in injecting the same into their system of government as well. Since time immemorial, the UK’s unrefined model of separation of power has enthused philosophers across the world to develop a better sense of the existing monarchs and provide the tormented subjects with the concept of welfare states. Separation of power, as has been originated from the unwritten constitution of the United Kingdom, essentially talks about demarcation of power where one shall roam within its own territory and not one wing of the government shall have the ultimate power to rule its subjects. As the famous saying goes, “Power corrupts and absolute power corrupts absolutely”, separation of power was necessarily adopted and invented with the goal to put the tyrants under stricter leash and bounds to minimise their exploitation on their respective subjects.

The Theory of Separation of Powers

Government is the agency or the machinery through which the will of the State is formulated, expressed and realised. The power to govern its subjects rests with three different wings found under any form of government viz. Legislature, Executive and Judiciary. The legislature is the lawmaker, the executive administers and establishes the laws made by the legislature and the judiciary governs the adjudication. The theory of separation of power can be defined as the clear demarcation of power between these three main agencies of the government and providing each of these agencies absolute liberty to govern their list of subjects in a way that shall not override or contradict with the other two agencies or their functions.

The theory of separation of power rests on three main elements or basic principles:

The absence of concentration of powers. The main objective of the institution of the theory of separation of power limits the hands of the tyrants and to meet that end, one governmental agency should not be provided with absolute power to take any arbitrary action.

Diffusion of powers needed. The theory of separation of powers implies the powers are to be diffused by bringing about a division of powers on the basis of functions.

The existence of cross-checks and balances. The theory of separation of powers brings about a complex system of checks and balances between the three agencies of the government. In the language of a layman, under separation of power, the executive organ of the State shall have some control over the legislature and the judiciary; the legislative over the executive and the judiciary and the judiciary over the rest of the two agencies. This method of one branch halting the power of the other branches will act as an antidote to despotism.

Thus, separation of power merely means compartmentalise of powers within a certain perimeter in order to avoid absolute death claw of tyranny or despotism over the liberty or freedom enjoyed by the individuals in the State and provide a perfect balance between the law making and its process of adjudication and application.

The Historical Development of the Concept of the Theory of Separation of Powers

It is said that the concept of separation of powers first emerged in the minds of the Greeks and slowly became a popular concept during the Roman Republic. The Aristotle (384-322 BC) in his book, ‘The Politics’ uttered that there are three elements in every constitution namely the deliberative, the official and the judicial element. In the writings of Cicero and Polybius, Roman Republican was the centre of all the praises, because a justified balance was found between the Senate, Consuls and Tribunes.

However, as far as the modern concept of separation of powers is concern with more stricter and clearer demarcation between the three wings of the governmental agencies, Jean Bodin (1530-1596) is the only person who first argued the demerits of having King as the lawmaker and the judge. Following the footsteps of Bodin, John Locke vaguely distinguished between legislative, executive and federative in his book of ‘Two Treaties on Civil Government’.

During the 18th Century, when France was facing the ruthless wrath of its ruller, Baron De Montesquieu, the French Philosopher paid a brief visit to England and found the traced the existence of the principles of separation of powers which ensured the liberty of the then British people. Inspired by the British regime’s fascinated ruling system, Montesquieu concluded a district doctrine in the ‘Espirit De Lois’ in the year of 1748 and it is considered to be first ever perfectly compartmentalised concept of separation of powers that has found its ways into the modern world as well.

The Purpose of Separation of Power

The purpose of separation of powers has many underline layers which are inherently correlated to each other. One of the key purposes of the implication of the separation of power is to ensure the individual liberty of the people living in a State. Although it is not the primary objective of separation of powers but individual liberty comes with safeguarding the governmental system against despotism. Followed by putting a complete bar against the rise of tyranny, it ensures the freedom of judiciary and provides judiciary with the important power of ensuring the fundamental rights of the individual subject of the State.

While saving people from the arbitrariness, separation of powers certifies efficient working of the executive and provides scope for the governmental to be a welfare state. Separation of powers purposefully works as a check upon one another; thus in case of violating the limits of one’s perimeter, the other organ of the State can meddle in swiftly.

To summarise the whole purpose of separation of powers, it can be stated that the theory of separation of powers completely works towards providing individual liberty with optimal efficiency where one shall have his/her freedom as long as he/she interferes with the liberty of the other. In a way, the purpose of separation of power is to reinstate the definition of liberty in the workings of the governmental system.

The Concept Of Separation Of Powers In UK: The Extent Of Application Of Separation Of Powers Into The Workings Of The Constitution Of UK

Despite the fact that the ancient philosophers were inspired by the British concept of separation of powers, the concept still lost and has not been implemented in its strictest sense into the working of the UK Constitution. Contradictorily, instead of separation of powers, the theory of integration of power was adopted into the working of the UK Constitution. The working of the UK Constitution does not rely on complete demarcation of the powers between the legislature, executive and the judiciary but leans into a concept of ‘sharing out’ the powers. In simple words, UK Constitution has a greater share of overlapping of powers between the above referred three agencies of the government. Thus, the King herein shares an integral part of the legislature while all of his Ministers are member of different houses of the Parliament. The Lord Chancellor enjoys a position of the Judiciary and member of the Cabinet. The judiciary works independently but they can be removed if addressed by both of the Houses of the Parliament. As Daniel Ullman has described UK as not being the classic example of exercising the theory of Separation of Powers and under the working of the UK Constitution, each governmental agency has taken up a form of its own which makes the overlapping and sharing out powers more of a complicated nature.

In UK, for the purpose of enactment of a new law, the Bill containing the same shall be given affirmative nods by the House of the Commons and the House of the Lords, followed by an approval by the Royal assent. However, according to the clauses of the Parliament Act, 1911 and 1949, a new law can be enacted even after it has been rejected by both the House of the Commons and Lords and in special cases, it can only be kept on hold for twelve (12) months only.

As has been mentioned earlier, the judiciary might work independently under the construction of the UK Constitution; the judges have a liability to interpret the statues in such a way where it does not directly challenge the political authority behind it, unless it breaches the European Law of land. Also, the courts of UK performs minor legislative functions as well such as making rules, governing different court procedures and many administrative functions.

The Development of Separation of Powers under the Constitution of UK

It is true that the concept of separation of powers was originated from the unwritten version of the UK Constitution and thus, the demarcation of power according is informal in the United Kingdom. The theory of ‘Mixed Government’ as has been stated by Black Stones is more relevant in the background of the UK separation of powers as the three branches of governmental agencies of UK has not been formally separated and they continue to overlap each other.

However, the development of UK’s separation of powers is on the rise and United Kingdom is set out on the path of imposing a more stringent segregation of powers between three governmental agencies i.e. legislature, executive and judiciary. UK adopts the article 6 of the European Convention on Human Rights which clearly protects the right to fair trial of the citizens of a State and it has led UK Constitution to amend to its previous conception of separation of powers and minimise the overlapping. The Constitutional Reforms Act, 2005 amends the position of the Lord Chancellor where the dual character of his position has been reformed and the Lord Chancellor has stopped being a part of the Legislature. It also completely reformed the position of the Lord Chancellor and transferred the associated judicial duties to the President of the Courts of England and Wales – who is responsible for the appointment of judges and training session of the same. The Act of 2005 also provided UK with an independent Supreme Court which is separated from the House of the Commons and Lords. The Act of 2005 barred the Ministers from influencing the Judges of the higher courts and lower courts indirectly as well.

Also, according to section 61 of the Constitutional Reforms Act, 2005 provides independence to the appointment system of the Judges of Supreme Court and other courts of UK. Further, the overlapping between the powers of the Parliament and power of the Supreme Court has been discontinued and their powers have been demarcated clearly since October, 2009.

In the case of Duport Steels Ltd. V. Sirs, Lord Diplock has observed that although the concept of separation of powers is not strictly adopted by the UK Constitution, there exist strict demarcations between the powers enjoyed by the Parliament and the Judiciary. The same view was upheld by the Privy Council in the case of Hinds v. R.and Griffith v. the Queen.

Following the above mentioned comments, Prof. Hood Philips, in his published article under the heading ‘A Constitutional Myth: Separation of Powers’ remarked that the concept of a complete segregation of powers between the several agencies of the government of UK is a work of fiction and needs years of polishing before it reaches perfection.

In a more recent case, R V. Secretary of State for the Home Department, it was observed by Lord Mustill that according to the separation of powers theory, the three wings of democracy of UK has wider range of domain that is unchallengeable by the other wings.

Conclusion

Although several States across the world might have borrowed the concept of separation of powers from the unwritten Constitution of UK, a complete demarcation of powers with proper checks upon each other is a distant future for United Kingdom. The overlapping of power may have been discontinued but it needs to be more filtered of each other’s influence and only then an unbiased democracy can be established as per the constitution of the UK.

Looking for further insights on Factors Influencing Police Response to Incidents? Click here.

Bibliography

Journal

‘The doctrine of separation of power in US and UK’, Hemant More, < https://thefactfactor.com/facts/law/civil_law/administrative-law/separation-of-powers-in-us-uk/13352/ > accessed on 4th May, 2021

'Separation of Powers in the UK' (Lawteacher.net, May 2021) < https://www.lawteacher.net/free-law-essays/administrative-law/separation-of-powers-in-the-uk-administrative-law-essay.php?vref=1 > accessed 5 May 2021

‘The Separation-Of-Powers Theory Of Standing’, F. Andrew Hessick, < https://core.ac.uk/download/pdf/151516224.pdf > accessed on 5th May, 2021

‘European Convention on Human Rights’ < https://www.echr.coe.int/documents/convention_eng.pdf > accessed on 5th May, 2021

Books

Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom, Cambridge University Press, 2011

Murray C, Exploring Constitutional and Administrative Law, Pearson, 2013

Article

‘Separation of Powers’, Piotr Mikuli < https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e466 > accessed on 5th May, 2021

‘Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England’, Yashmita < https://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/#_edn27 > accessed on 5th May, 2021

'Separation of Powers in the UK' (Lawteacher.net, May 2021) < https://www.lawteacher.net/free-law-essays/family-law/separation-of-powers-in-the-uk.php?vref=1 > accessed 5 May 2021

Three branches of Government’ < https://law.gov.wales/constitution-government/intro-to-constitution/three-branches-government/ > accessed on 5th May, 2021

Case Laws

Duport Steels Ltd. V. Sirs, [1980] 1 WLR 142, 157B-158C

Hinds v. R, [1977] AC 195

Griffith v. the Queen, [1977] HCA 44 - 137 CLR 293; 51 ALJR 749; 15 ALR 1

R V. Secretary of State for the Home Department , [1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145