British Tradition (Mixed Government):
All major interest in society have a function in the government. This derives from the idea that the monarch, aristocracy (lords) and people (commons) all share governmental power.
Theory of Limited Government: The people exercise a check on the monarch and lords.
Origins of the Separation of Powers:
Locke [1]:
Locke wrote about the one supreme power being the legislative. The executive is the ‘supreme executor of the law’ and may be the same entity as the legislature. Locke makes the judicial function part of the executive.
‘There can be but one supreme power, which is the legislative, to which all the rest are subordinate.’
Montesquieu [2]:
Montesquieu wrote about the separation between the legislative, executive and judicial, and how this is the ‘key to England’s political liberty’. He argued that the 3 branches check each other.
However, there was no formal separation of power, but a mixed government when he wrote – his writing was incorrect and is reflected in the American Constitution. The British system actually worked because its actors were all of the landed class.
3 Branches of Government:
Legislative (Rule Making)
Executive (Rule Executing)
Judiciary (Rule Interpreting)
Overlap:
Theoretically, no person is allowed to be a member of more than one branch. In Britain, this does not apply: to be in the government, a person has to be either an MP or a Lord. Therefore, the legislative and executive are required to overlap.
Purpose of Separation:
To establish a governmental machine that creates laws and checks its own power. Each branch is to perform mutual checks on the power of other branches. This ensures that each branch stays within its defined power and does not try to exceed it or encroach on the power of another branch.
Purpose is the ‘prevention of the arbitrary government, or tyranny, which may arise from the concentration of power’. [3]
‘And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked, and kept within due bounds by the two houses through the privilege they have of enquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors’ [4]
The separation of powers is a constitutional tool to protect liberty. [5]
Balances between the Branches in Britain (Westminster Model):
The separation of powers began due to the power conflict between the Crown and Parliament during the Civil War. Parliament has supremacy because it has democratic legitimacy. This should not be confused with the idea that Parliament, and its actors, are free from scrutiny.
A Tomkins argues that the separation of powers develops from divide between Crown and Parliament. [6] All actors fall on one of the sides, so the separation of powers is not between legislative, judicial and executive.
Parliamentary sovereignty represents when both Crown and Parliament come together to legislate. Ministers accountable to Parliament as agents of the Crown and the Judiciary not legally separate from Crown.
Bagehot argues that the real system of government works by the leading members of Parliament leading the government through the Cabinet. [7] The Cabinet is the connection between the legislative and executive.
The ‘separation of powers is a very theoretical concept… not a fact’ in Britain. [8]
‘The separation of powers is merely a rule of political wisdom’. [9]
‘Our constitution has, however, never embraced a rigid doctrine of the separation of powers’. It is just a ‘strong principle’ but the ‘supremacy of Parliament is the paramount principle’. [10]
Erosion of Balances:
Glorious Revolution – monarch losing rights.
EG: Loss of monarch’s power to veto.
Democracy – loss of power to the aristocracy.
The House of Lords losing veto power by nature of the Parliaments Acts.
More discipline within political parties.
MP’s no longer independent to their party.
MPs can serve as part time judges.
Overlap of separation of powers.
‘Elective dictatorship’ due to lack of checks and balances. [11]
Problems with the Model:
The elected government generally holds a majority in the House of Commons. This means that the major party controls Parliament, so the executive is in control of the legislative process. Arguably, this leads to less accountability.
The Westminster Model assumes that the Cabinet share collective decision making fairly equally. Generally, the Prime Minister holds more power now.
Lots of legislation is made through delegated legislation rather than Acts. Parliament has less powers to scrutinise these than primary legislation.
The model does not take into account devolved powers and multi-level governments. Furthermore, since joining the EU, there has been a greater trend towards judicial review.
Contemporary Issues with the Separation of Powers:
The Human Rights Act allowed a public hearing of a criminal trial by an ‘independent and impartial tribunal’. The highest court at the time (the House of Lords) was part of the legislative process, so not totally independent.
The Constitutional Reform Act legally established the constitutional principle of the rule of law.
The Constitutional Reform Act remedies the human rights issue with the creation of the Supreme Court as the highest court, thus making the judiciary independent of Parliament.
The government also wanted to abolish the role of the Lord Chancellor, as this had executive, legislative and judicial functions. This role broke the idea of separation of power. Instead, its functions were reduced to only being the head of the Ministry of Justice. These changes respect doctrine of the separation of powers. These changes were more to give the public appearance of the separation of powers – the practice was generally already followed.
References:
[1] Locke, Second Treatise of Government [1690] [2] Montesquieu, The Spirit of the Laws [1748] [3] E Barendt, Seperation of powers and constitutional government [1995] Public Law 599, 603-4
[4] Blackstone, Commentaries on the Laws of England (1765) [5] NW Barber, Prelude to the separation of powers (2001) 60 Cambridge Law Journal 59, 71-2 [6] A Tomkins, Public Law (2003, Oxford University Press) p46-7
[7] W. Bagehot, The English Constitution (1867) [8] R Dahrendorf, A confusion of powers: politics and the rule of law (1977) 40 [9] Committee on Ministers’ Powers (1929) [10] R (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2002] 4 All ER 1089 [11] Hailsham (BBC 1977)
Comentarios