'It cannot be too strongly emphasized that the British constitution… is firmly based on the separation of powers. ' (Lord Diplock in Duport Steels v Sirs). Discuss. There are several ways of approaching the concept of the separation of powers. One way is to look at it "purely," envisioning three distinct branches of government – legislative, executive, and judicial – that are allocated to different persons or bodies, and are mutually exclusive in the functions they perform.
Montesquieu believed that stringently separating the three branches is the best way to avert abuse of power. 2 If we believe that the current state of government in the UK is constitutional, then we will not by any means find a pure separation of powers. Another way to view it is termed the "partial separation theory," where the main point is the "avoidance of concentration of power"3; powers are roughly separate, but each branch can "check and balance" another by either having some of the functions of that branch, or by being able to review its actions.
This is closer to the truth, although most functions that cross the boundaries are clearly due to efficiency rather than attempts to avoid abuse of power. The separation of powers doctrine, in both of these forms, has had a substantial influence on the UK constitution, especially on judicial independence. But it is not unified, clear, or enforceable enough to form a constitutional base. The main principle dominating the UK constitution of the 18th century was that of the balanced government, where each branch was drawn from three social classes – the wealthy commoners, the aristocracy, and the monarchy.
They shared in the performance of several functions; for example, the Commons, Lords, and King all participated in the enactment of legislation. The resultant friction was what stopped each branch from getting excessive power – in essence, a partial separation of powers. With the rise of democracy and the mass party political system, the balance slowly eroded due to a continuing disenfranchisement of the King and the House of Lords. It was a just evolution approaching closer to the elusive concept of democracy.
Nevertheless, this evolution disturbed the balance of power between the branches, initially handing almost all power to the House of Commons. Is there separation of power, in either the pure or partial sense, between the contemporary legislative and executive branches? There is a limited pure separation of functions. It is a recognized and constitutional duty of Parliament to legislate, and that of the executive branch to implement legislation. But the boundaries are often blurred, disallowing a pure separation of powers.
Statutory instruments, such as Henry VIII clauses4, frequently permit government to legislate. 5 Likewise, the ability of Commons to vote on certain decisions that are entirely governmental seems to infringe on executive powers (but support the "partial" theory). The very structure of the executive branch, where the ministers are chosen from majority party members sitting in Commons or Lords, prevents an American-style separation of powers. It allows for executive dominance in Commons, where ministers introduce and argue for the majority of bills.
The rest of the house argues, makes amendments, and votes, therefore acting more as an "effector" than a legislator. Walter Bagehot calls the "close union, the nearly complete fusion" of the two branches the "efficient secret of the English constitution. "6 He is driven by the dubious idea that Cabinet is selected from "the very best" of Parliament and can often control it, thereby having the ability to make speedy and effective reforms. Perhaps that is true, but to all things there are costs.
In this case, the cost is a partial loss of accountability. As T. R. S. Allan notes in "Law, Liberty, and Justice": "MPs have become… dependent on voters' satisfaction with governmental measures, rather than representatives whose task is to constrain the executive by framing general rules… of justice. " Paradoxically, the rising control of the executive is coupled with a deeply entrenched principle of parliamentary sovereignty. Dicey in particular is enamored of the idea that "Parliament…
has… the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. " This would be perfectly fine, were Parliament a truly democratic assembly. The majority party in Commons is the party that got the single largest minority of votes (in the last election, it was 35%). That means that a full 65% of the voters did not want Labour to win.
The legislative supremacy of parliament -the legislative supremacy of the governing party, that is – subverts the rule of law and one of its mechanisms (the separation of powers). The fact that no constitutional statute, not even Bill of Rights 1689, is immune from repeal or amendment highlights the precariousness of legislative supremacy. Dicey did not fail to notice the paradox between the importance he placed on the rule of law and the importance he placed on parliamentary sovereignty, but he believed that there was no serious threat of parliamentary abuse because of checks and balances from other factors.