A summary of lecture notes on UOL's Constitutional Principles in the UK. Very helpful to understand and grasp basic concepts and use as a starting point for a detailed exam preparation and revision.
Separation of Powers
Definition
• Developed by Aristotle, John Locke, furthered by Montesquieu.
- Idealist description of the English constitution
- Three branches of government (legislative, judicial, executive) correspond to the
three functions.
- Different people should exercise all.
- Legislature and executive should have powers to limit and check one another –
the notion of ‘checks and balances’ by which the three branches might
legitimately influence or even impose certain limits on the actions of one another.
• A political theory, not a legal principle
- prescribes what ought to happen if a particular goal is to be achieved.
• Forms of separation of powers:
a) Pure – all 3 functions are completely separate.
b) Partial, based on checks and balances (US).
• Traditionally, the doctrine required a threefold classification of functions.
- ...but now depends on the arrangements of the state. In the UK, the processes of
law-making, administration and adjudication are not separated; however, still
have to ask whether powers are appropriately allocated and whether effective
check mechanisms are in place.
• Bradley and Ewing -> threefold meaning of the doctrine of separation of
powers
a) The same person should not form part of more than one of the governmental
bodies.
b) Governmental organs should not control or interfere with each other’s work.
c) One organ of government should not exercise the functions of another.
• Why do we need separation of powers?
- Montesquieu – principle helps to avoid tyranny.
- John Locke – principle concerned with the efficiency of government and
avoidance of tyranny.
- Munro - aimed at avoiding absolutism by preventing the monopoly of power.
• Critique of the principle of separation of powers
- Marshall: It is impossible to define with precision what the exact functions of
government are and to determine to whom they should be allocated. Judicial
independence is always particularly important but there is a frequent fusion
between the legislative and executive branches (as in the UK). The doctrine is
therefore far too imprecise and incoherent to form the basis for the analysis or
critique of the constitution.
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- John Locke: There are no material differences (only formal and procedural)
between legislature, judiciary and executive, so the principle fails to explain why
certain tasks should be given to one rather than the other. The principle is
irrelevant as a safeguard from tyranny – what prevents it is the democratic
control through the House of Commons and the party system.
• Defending the principle of the separation of powers
- Barendt: it is possible to define in general terms the three functions, which are
allocated by a constitution to bodies or institutions. Such a distribution is
enforceable by courts, and they are entitled to make the final decision in practice
of whether the function is judicial, executive or legislative.
- The separation of powers reinforces democracy since citizens expect that the
elected Parliament will make most of the fundamental decisions that affect them,
and the principle ensures it is so.
- The allocation of functions is a way for achieving the avoidance of arbitrary
government and tyranny. It therefore does not matter so much whether powers
are allocated precisely to the right institution.
- The pure principle of separation of powers does not consider functions of
government that do not fall exactly within one of the three divisions, while the
partial separation of powers does.
- The principle should hence be explained as a network of rules and branches that
ensure that no power of concentration ends up in the hands of one.
- Madison: The principle does not operate in a vacuum and, setting aside its
theoretical defects, it helps the courts to protect the individual’s rights and to
prevent one branch from accumulating excessive powers.
- Bagehot: Although there is no effective separation of powers in the sense of
checks and balances between legislature and executive in the UK, the doctrine
plays a role in the UK constitution – its purpose is to protect individual’s liberty
(through the division of power) and not identify the best holder for a particular
kind of power.
- Barber: The core of the principle is efficiency, not liberty; pure separation of
powers is impractical, and some overlap of function (like in the UK) is welcomed.
Separation of powers in the UK
• Legislature and executive
- Walter Bagehot: ‘the efficient secret of the English constitution may be described
as the close union, the nearly complete fusion of the executive and legislative
power.’
- Example: Parliamentary executive, which is headed by the ministers (under the
Queen as the ceremonial head of state), all of whom are drawn from the
legislature and who are also capable of exercising a considerable amount of
influence regarding the proceedings in the elected House. In terms of personnel,
there definitely is a degree of fusion between the executive and the legislature.
Bagehot, however, thought it to be good, in that it made the government work
better.
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