Lecture notes
Separation of Powers
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CON & AD LAW: SEPARATION OF POWERS1) Sample paper: ‘It [is] not easy to discern from the pronouncements of the House of Lords and the
Supreme Court any clear policy as to what is, and what is not off-limits for the development of the
common law ... It is an inescapable fact that some judges are more conservative than others. Some are
cautious and prefer to paddle in the warm and safe shallows of clear precedent. Others are more
adventurous and are prepared to give it a go in the more treacherous waters of the open sea.’ Lord
Dyson, Where the Common Law Fears to Tread, Annual Lecture for ALBA 2012. In the light of the
above statement, critically discuss whether the UK’s model of separation of powers provides a clear
basis for what is, and what is not, off limits for the judiciary.
2) Tutorial Q: Respect for the principle of separation of powers plays a significant part in judicial decisions
of the courts in the UK. Critically discuss with reference to decided cases
3) Consolidation Q: ‘While recent reforms have secured the structural independence of the judiciary, there
is considerable overlap of both personnel and function between Parliament… and Government… The
UK’s constitution exhibits a fusion, not a separation of powers. Critically evaluate this statement with
reference to the relationships between the three institutions and relevant case law
STEP 1: INTRODUCTION: Define, explain and contextualise the Separation of Powers, and outline
the two opposing schools of thought
- It is widely acknowledged that the concentration of all types of state power into the same hands can
lead to unjust and/or inefficient government. In the famous words of the British historian, Lord Acton:
'Power tends to corrupt; absolute power corrupts absolutely’
- Separation of powers = a political theory developed by Montesquieu that identifies 3 branches of state
and argues that to prevent arbitrary government and enhance liberty, these branches should be
kept apart, with separate functions and personnel. The 3 branches are: the legislature, the executive
and the judiciary
- The UK does not exhibit a separation of powers with the same clarity as the US for example as a
result of its un-codified constitution. Instead there has been a considerable degree of overlap in
terms of personnel and functions between the different branches of the state. Academics have
attributed this to the British constitution being a parliamentary system whereby the executive is
formed from the majority party in the legislature. Ministers sit in Parliament, so there is no
separation of membership of the legislative and executive organs. The Prime Minister is able to control
the House of Commons through his power to recommend to the Crown a dissolution of Parliament. For
this reason, parliamentary systems are often seen to create a fusion of powers rather than a separation
of powers.
- Two schools:
FOR the existence of a separation of powers in the UK - summarised by Lord Diplock in Duport
Steel v Sirs: “it cannot be too strongly emphasised that the UK constitution, though unwritten, is
firmly based on the separation of powers”
AGAINST the existence of a separation of powers in the UK - summarised by Barnett 2009: “the
separation of powers is neither an absolute nor a predominant feature of the UK constitution”
, CON & AD LAW: SEPARATION OF POWERS
STEP 2: MAIN BODY: Outline and consider the arguments for the existence/extent of a separation
of powers in the UK ... with respect to the relationship between THE EXECUTIVE AND THE
LEGISLATURE
AGAINST the existence of a separation of powers
- In the words of Lord Hailsham, the UK system of government is an ELECTIVE DICTATORSHIP –
the government effectively controls Parliament
- Once a political party is elected in the UK and has a majority, the degree of power the PM has to drive
parliament is considerable. Not everyone sees this as a problem as noted by Bagehot who saw the
close relationship between gov’t and Parliament as the ‘efficient secret’ of the constitution.
- FUSION IN MEMBERSHIP = Nevertheless in the UK, the executive and Parliament are closely
entwined. The PM and a majority of his/her ministers are MoP and sit in the HoC. The executive is
therefore present at the heart of Parliament. This is a result of the first past the post electoral system,
which always results in an inbuilt majority in Parliament for the government. Therefore, government bills
are rarely rejected. Furthermore, the existence of a government whip means there is pressure on
governing party MPs to vote according to government wishes & the culture of political patronage means
career-minded MPs face pressure to vote for government bills. As such the government defines the
parliamentary agenda to a large extent as a result of the payroll vote.
- DELEGATED LEGISLATION = we must also the degree to which executive can create delegated or
secondary legislation itself. Parliament may delegate law-making powers to the Government which can
liberate Parliament from the need to scrutinise small technical details, while maintaining the safeguard
of Parliamentary approval. As such the government can introduce statutory provisions on a wide range
of things such as Employment Law. This gives government an extensive ability to make detailed
legislation itself and few opportunities exist for Parliament to scrutinise delegated/subordinate
legislation made by government ministers.
- Lack of an effective upper chamber results in a weak check on the Executive – UK lacks checks
and balances
- A constitutional convention exists whereby the House of Lords will not reject bills giving effect to
manifesto commitments of the government (the Salisbury Convention)
- Parliament Acts 1911 and 1949 have also meant that the HoL can only delay legislation now.
- This can be compared to the Senate or Upper house in US which can be of a notably different
persuasion and can exercise restraint over the lower house. In the UK, less control over the HoC.
- White Paper for HoL reform, which could have made the upper chamber stronger, was officially
withdrawn in September 2012
- Parliament struggles to exercise scrutiny over Royal Prerogative powers (i.e. issues of national
security, defence, the deployment of armed forces – see Iraq War)
- This is despite the newly enacted Constitutional Reform and Governance Act 2010, which requires
parliamentary scrutiny of international treaties prior to ratification.
- However, there are indications that Parliament is beginning to play a more active role in respect
of the exercise of the Royal Prerogative. For instance, Parliament authorised the deployment of
troops in Iraq in 2003, and put the question of intervention in Syria to vote in 2013.
FOR the existence of a separation of powers
- s1, House of Commons Disqualification Act 1975: to prevent the executive from controlling
Parliament, this Act created limits on the number of salaried ministers who sit in the Commons to 95.
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