The UK Constitution’s Strict Separation of Powers

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05/08/19 Constitutional Law Reference this

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The UK constitution does not contain a strict separation of powers. But that is a strength not a weakness. Discuss

First of all, a constitution is the protocols of a state. It sets out the body of the state and the powers it has. In respect to the separation of powers, this is the idea that certain powers are delegated to the different branches of the state. The three branches in the UK are known as the legislative, (Parliament) the executive, (Government) and the judiciary (Courts) which are considered to function ‘separately’ as they have different legal powers. The main principle behind the separation of powers (also known as the Doctrine) is to prevent the abuse and misuse of power from the bodies. The question is, is having a separation of powers (that is not fairly strict) a strength or a weakness?

The first instance which identified the purpose of the separation of powers was in Magna Carta[1]. This acknowledged that there was a separation from the monarch and Parliament which limited both powers, also inaugurating that the ‘council’ had their own set of legal powers.1 Evidently, this has led to various perspectives on the view of the separation. Montesquieu[2] provided the idea that if one body (rather than the three branches) were to have all the power “there can be no liberty”. […]2 This identified that separation is necessary as it could result in the abuse of power. If one body held all the power, there would be a lack of checks on that body to ensure that it was working accordingly. Another theorist that shared this view was John Locke. He stated that rulers should keep ‘within their due laws’ and ‘not to be tempted by the power they have in their hands to employ it for [improper] purposes.’[3]

Although there is a separation of powers in the UK, it is not necessarily a strict one. The three branches work cooperatively to regulate the institutions and to ensure that there are checks and balances (demonstrated in acts like judicial review) to prevent the misuse of power. This can clearly be seen as a strength as it avoids one body from becoming too powerful and from exploiting that power. A more recent view point from the perspective of Barendt; specifically focuses on the judicial power. He states that they hold little power as they rely on the government for funding[4]. However, Hamilton6 argues that if the judicial powers were given to another body (Parliament or executive) they would then be granted the power to distinguish when a law had been broken. He stated that it was “essential”[5] for the judiciary to be independent. In respect to the UK’s constitution, this could be seen as a weakness if there was no separation of powers as if the judiciaries power were to be given to another body, they would be able to interpret what Parliament means when applying the law.

Furthermore Barber[6] suggests that there are two perspectives on the Doctrine of separation of powers. He refers to what is known as the ‘pure’ and ‘partial’ theory. The pure theory represents the idea that there is an absolute divide from the three branches laying out their specific functions he portrays that this theory puts a “restraint”2 on the state’s power. This can be seen as both a strength and a weakness of having a separation of powers as it limits the powers the bodies have which prevents the abuse of powers. But is also a weakness as putting a ‘restraint’ on the state’s power can cause communicational friction between the institutions.

 The partial theory is the idea that the separation of powers is to ensure that there are various ‘checks and balances’ put in place in order to make sure that the institutions are performing to their highest standards. This can also be seen as a strength as it leads to thorough checks within the institutions which ensure that the state is performing to its highest ability.

When confronting the idea of the separation of powers in the UK, it can be drawn to the conclusion that powers are not theoretically separated as the branches have many overlaps. One major overlap in the constitution is between the legislative and the executive as the Prime Minister and Cabinet Ministers work co-operatively. Bagehot4 considers their proximate relationship as a “close union, and almost a complete fusion of legislative and executive power”4 demonstrating that the powers are not totally divided. Once again, this can be seen as a strength rather than a weakness as to have a “close union”4 allows each branch to cooperate resulting in better communications. However, it may also be argued that that this proximate relationship can lead to one body overpowering the other as they don’t necessarily have a strict limitation of power on the three branches. 

One key role that demonstrated that there isn’t a strict separation of powers in the UK was the position of the Lord Chancellor whom was a member of all three branches. It wasn’t until 2003 where this role was abolished. Judicial independence also indicates that there is a separation of powers within the UK constitution. Lord Steyn[7] has previously suggested it to be the ‘least dangerous’ within the branches as it hold little powers in comparison to Parliament which is held as its superior as demonstrated in the case of Burman Oil (1965)[8].This can be seen as a strength as it demonstrates that there are certain limitations on the institutions to which they should not exceed. Evidently, it makes sure that they stick within their limits.

There are many overlaps within the three branches even when regarding the Constitutional Reform Act 2005[9]. This was significant because it established the Supreme Court. Prior to the Constitutional Reforms Act 2005 superior judges whom were able to sit in the legislative chamber of the House of Lords and had both legislative and judicial powers. This can represent the separation of powers as a weakness as it demonstrates that the judges theoretically had both powers.

Overall, it can be believed that the separation of powers (although not strict) is not a weakness but a strength due to the various ‘benefits’ that it has. Arguably, of the greatest strengths of having a partial separation of powers is the proximate relationship between the branches as this allows for there to be many checks to carried out to ensure that each institution is acting within accordance. Having flexible powers also allows there to be a balance system to ensure that not one body becomes overpowering.

Bibliography

  • E.Barendt, An Introduction to Constitutional Law (Oxford: Oxford University Press, 1998), p.129
  • N.W. Barber, ‘Prelude to the separation of powers’ (2001) 60(1) Cambridge Law Journal 59, 59-64
  • The Judiciary Department’ (Federalist Paper No. 78, Independent Journal, 14 June 1788). The description provided the title for one of the great books on US constitutional law: A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962).
  • Burman Oil v Lord Advocate 1965 (paras 12.31 – 12.32
  • Constitutional Reform’s Act 2005
  •  John Locke, 1632-1704 – (Two Treaties on Government, Book 2 Chapter XI)
  • Magna Carta 1215
  •  Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748).
  • Lord Steyn, Burman Oil v Lord Advocate 1965 (paras 12.31 – 12.32

[1]Magna Carta 1215

[2] Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748).

[3] John Locke, 1632-1704 – (Two Treaties on Government, Book 2 Chapter XI)

[4]E. Barendt, An Introduction to Constitutional Law (Oxford: Oxford University Press, 1998), p.129

[5] The Judiciary Department’ (Federalist Paper No. 78, Independent Journal, 14 June 1788). The description provided the title for one of the great books on US constitutional law: A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962).

[6]N.W. Barber, ‘Prelude to the separation of powers’ (2001) 60(1) Cambridge Law Journal 59, 59-64

[7] Lord Steyn, Burman Oil v Lord Advocate 1965 (paras 12.31 – 12.32

[8] Burman Oil v Lord Advocate 1965 (paras 12.31 – 12.32

[9] Constitutional Reform’s Act 2005

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