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Published: Fri, 02 Feb 2018
Separation of powers and constitutional government
“… the separation of powers should not be explained in terms of a strict distribution of functions between the three branches of government, but in terms of a network of rules and principles which ensure that power is not concentrated in the hands of one branch.”
Eric Barendt, “Separation of powers and constitutional government”  PL, Win 599-619
Critically Discuss The Extent To Which The UK Constitution Guards Against Excessive Concentration Of Power.
To understand the separation of powers under the uncodified, largely unwritten British constitution, it is necessary to look at the rules involving the structure, function and powers of the organs of State, their relationship to one another and to examine any overlaps in personnel and functions. Where overlap exists, it is important to consider what factors there are which make the situation acceptable.
The doctrine of Separation of Powers was influenced by Montesquieu, the idea that the three organs of government are the executive, the legislature and the judiciary, and that there should be a clear segregation of functions between them, otherwise there will be ‘tyranny’. For example, the judiciary should apply, not create, law which would provide a system of checks and balances between each branch of government. It is apparent that breaches of this doctrine do occur. Judges can create law by expanding the common law when it addresses situations that have never previously been encountered. In Shaw-v-DPP-and later in R-v-Knuller-Ltd, the House-of-Lords held that a doctrine recognized as ‘conspiracy to corrupt public morals,’ existed in common law, despite no precedents being cited demonstrating that no such statutory offence existed. Would it be wrong in saying the judiciary overstepped their functions?
The executive is at the heart of Parliament, with responsibilities to formulate and implement government policy. The USA forbids the President from being a member of the Congress, the legislature body, and the congressional and presidential elections are separated. In contrast, in the UK, the Prime Minister is always the leader of the political party that won the general election. The elected government is accountable to Parliament, who holds the power to dismiss a government and initiate a general election. The Prime Minister and many of his ministers are Members of Parliament who sit in the House-of-Commons, which is the legislative body. Could the government dominate Parliament and guarantee that its proposed legislation is endorsed? Or do we have adequate guards in place to ensure that proposals are effectively scrutinised and either approved or rejected by Parliament?
In addition, the government can be given law-making powers by the Parliament to draft statutory instruments, subject to Parliament scrutiny. Does this delegated legislation discourage separation of powers between the executive and legislature? To an extent, the outcome in ex-parte-Fire-brigades restores some confidence in the determination of the judiciary to hold the executive to Parliament’s intention as voiced by statute. The Home-Secretary use of prerogative power to introduce change to a scheme which was contradicting an Act of Parliament was held to be unlawful.
The most obvious contradiction of the separation of powers is the Lord Chancellor. As head of judiciary, Speaker for the House-of-Lords, Cabinet minister and a Law Lord, his responsibilities branched into functions of the executive, judicial and parliamentary. However the Scottish case, Starrs-v-Procurator-Fiscal which led to an impairment of the right to fair trial under Article-6(1) European Convention questioned the direct influence which the executive could have over a person who has been chosen for a temporary period and also that brief tenure may allow the application of subtle indirect influences over judicial power. Nevertheless, McGonnell-v-United-Kingdom-reaffirmed the requirements for independence and impartiality. The European-Court-of-Human-Rights ruled there was a breach in a right to a fair trial by the involvement of the Bailiff of Guernsey who had varied functions similar to the Lord Chancellor’s.
These cases influenced a systematic reform of the UK constitution, to guard separation of powers principles, through the Constitution-Reform-Act-2005. The Secretary-of-State headed a new Department for Constitutional Affairs and will assume many of the Lord Chancellor’s duties. The role of the head of judiciary is now held by the Lord Chief justice. The new Supreme Court will replace the Appellate Committee of the House-Lords which will be separate from Parliament; this will guard the infringement of the separation of powers symbolised by the Law Lords in the second chamber of Parliament. The Lord Chancellor will no longer be a judge or Speaker, including no involvement of the judicial and legislative functions of the government or participation in the Appellate Committee of the House of Lords or new Supreme Court. The Act, which can be perceived as a guard, allows for a new system for judicial appointments, with intention to reinforce judicial independence.
Can we argue that the British Constitution shows remotely any existence of separation of powers? It seems the government could hardly carry on if it were. On the other hand, it could be argued that some features of government demonstrate its existence, if we do not interpret the doctrine literally. The House-of-Commons-Disqualification-Act 1975 prohibits certain groups of people from becoming members of the House of Commons in order to guard the executive overpowering Parliament. In addition, only 95 government ministers are allowed to sit in the House of Commons. This growing importance for judicial independence from government is important for the separation of powers. Judicial review ensures that delegated legislation is consistent with the scope of power granted by Parliament. The rule of law also requires that judges ensure the legality of government action; this function could not be fulfilled if the judge’s independence was in doubt as reiterated in Re-Pinochet and Dimes-v-Grand.
We may now turn to the executive having prerogative power which the judiciary does not interfere with. The ruling of the landmark GCHQ case puts a guard to this excessive power; executive decisions can be judicially reviewed even if it is from a royal prerogative power. This principle was applied in M-v-Home-Office-with the decision that judicial review cannot be against the Crown however a minister or officer acting on behalf of the Crown is subject to judicial review.
The Human-Rights-Act-1998 has visibly had an impact,-s6(1) makes it unlawful for a public authority to act in violation of a Convention right, signifying a considerable transfer in power from the executive to the judiciary. This is not, as some have argued, a shift in power from Parliament to the judiciary because, the HRA imposes a duty on the judges to interpret legislation ‘as far as possible’. If this is not an option, the High Court can issue a ‘declaration of incompatibility’ but cannot declare an Act of Parliament invalid. This in turn, guards the supremacy of Parliament and the separation of power. Nonetheless, a shift from the executive to the judiciary is apparent as the courts have the authority to strike down actions not because they are beyond the powers used to rationalise the actions or a fair trial was not upheld, but for the underpinning reason that human rights were violated, as seen in ex-parte-Limbuela. Yet, this shift in power will only be seen in aspects of law involving Convention rights.
The HRA has already influenced the separation of functions between the executive and the judiciary. The decision by the House of Lords in Anderson, where the Secretary of State was engaged in sentencing adult life prisoners was found to breach Article-6. Undeniably, the Scottish ruling in Starrs-v-Ruxton, that the scheme for selecting temporary sheriffs was violating Article-6(1) because their impartiality and independence from the executive was not guaranteed, illustrates the encouraging effect which that Convention right has on the independence of the judiciary, a fundamental aspect of the separation of powers.
It is well known that separation of powers in Britain is not as clear as some system such as USA. Here, the President has power to veto legislation but cannot dissolve Congress. Legislation passed by Congress can be declared invalid by the courts because it is unconstitutional. In contrast, the UK judiciary have no power to question the validity of legislation as seen in Pickin-v-British-Railways-Board, though it did show some flexibility in R-v-R by ignoring a word in an Act of Parliament. Additionally, Parliament is free to reverse a decision on legislation made by the House of Lords, as seen by the War-Damage-Act-1965, following the outcome in Burmah-Oil-Co. All public authorities are bound by Article 7 ECHR with S6(1); ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.’ protecting against non-compliance to retroactivity in law. However, as it is integrated with the HRA, Parliament can override which would have no impact on the separation of powers.
Unlike strict distribution, principles can be consistently and potentially applied to every case, protecting individual rights and liberties in the process which is ultimately the fundamental purpose of the separation of powers.
It should be noted that even under a written constitution a complete separation of powers is not possible, and that without some degree of interaction between the institutions there would be constitutional deadlock. It may be concluded, that judicial review is the guard for separation of powers working at its best; the judiciary ensuring that the executive do not exceed the powers that Parliament has given them, thereby upholding the will of the legislature.
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