The separation of powers in the UK is a political rather than legal theory, with a fundamental doctrine that there should be some separation between the three branches of the state. The three branches of the state consist of the legislature whose role is to make law and is comprised of the Queen, House of Lords, and House of Commons; the executive whose role is to administer the law and consists of the Queen, Prime Minister, other governmental ministers, civil service and members of the police and armed forces and the judiciary whose role it is to interpret and apply the law and consists of the Queen, all legally qualified judges, and non legally qualified magistrates.
Montesquieu (1748) identified that when executive and legislative powers originate from the same person and body that there could be no liberty and likewise, the power of the law is minimized if the legislative and executive lack separation. Madison (1792) argued that a lack of separation constituted a state of tyranny. Therefore, in order to avoid arbitrary and oppressive government, the three branches of state should be kept apart both in terms of separate functions and separate people. Consequently, it is understood that no single person should work in more than one branch of government; that each branch should not interfere with another, and that there should be a system of ‘checks and balances between the branches to reduce the chance of one branch accumulating and exercising excessive power.
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Bolingbroke (1748) proposed that the protection of liberty within the state was dependent on maintaining equilibrium between the crown, parliament, and people, with the safety of the whole resting on the balance of its parts. However, despite theoretical principles, there are overlaps between the different branches as well as separations. Modern state and society are far more complex than when Montesquieu developed his theory on the separation of powers and it could be argued that it is unrealistic to expect the complete separation of the three branches. Additionally, as a result of our uncodified constitution, no written document exists that specifically lays out the distinct functions of the executive, legislative, and judiciary, therefore, a demarcation between functions and personnel is lacking. Despite this, evidence exists that indicates an attempt to separate powers going back to Magna Carta in 1215.
I will now consider the specific overlaps, separations, and system of checks and balances between the branches of state:
Legislative v Executive overlaps:
- The government has an inbuilt majority within the House of Commons with its ‘first past the post’ system, therefore law making powers, policy formation, and implementation are effectively in the same hands. Additionally, the executive controls parliamentary and legislative timetables. Lord Hailsham describes this as an ‘elective dictatorship’.
- Virtually all government ministers are either MP’s or members of the House of Lords and most Bills are introduced by government ministers, therefore derive from government.
- Government ministers make delegated legislation or perform a legislative function. As a result of Henry VIII powers there is less opportunity to scrutinise delegated legislation.
Legislative v Executive separations:
- The House of Commons Disqualifying Act (1975), s1 and 2 disqualify civil servants, police, and members of the armed forces from being members of the commons.
- Parliament has the power to pass a vote of no confidence in the government.
- Select committees, debates, and questions to ministers act as a check on the executive.
Legislative v Executive checks and balances:
- Government ministers are accountable to Parliament through individual and collective ministerial accountability as well as via questions, debates, select committees, private members' Bills, and backbench revolt as evidenced by the Cooper-LetwinAct (2019) and Benn Act (2019) regarding withdrawal from the EU. A recent example of backbench pressure forcing change to government policy involved footballer Marcus Rashford campaigning for meal vouchers for disadvantaged families.
- Limited power of the commons to scrutinize parts of the royal prerogative eg national security.
- The House of Lords may be considered to be weak given that it is a revising chamber only, limited by the 1911 and 1949 Parliament Acts.
Executive v Judiciary overlaps:
- The monarch is a member of both branches although the role is ceremonial only.
- Some retention of quasi judicial roles by ministers eg planning decisions and compulsory purchase orders.
- Public inquiries are appointed by the executive but have a judicial function.
- Appointment of judges to high profile inquiries leads to accusations of judicial bias and politicisation of the judiciary.
- In Human Rights Act (HRA, 1998) cases, there exists concern that judges are considering cases on their merits rather than on points of law.
Executive v Judiciary separations:
- The Constitutional Reform Act (2005) removed the Lord Chancellor as head of the judiciary and established the Judicial Appointments Commission (JAC). Hartley and Griffith (1977) argue that independence of the judiciary is one of the separations of the power accepted by the constitution, with Lord Diplock in Duport Steel v Sirs [1980] agreeing.
- Quasi-judicial functions are reviewable by judicial review, however, some argue that there has been a removal of quasi functions as evidenced in the case of Anderson v Secretary of State for the Home Department [2002] in which the Secretary of State rather than the judiciary set tariffs determining the length of a life sentence. This was reviewed and held to be a judicial function.
- Security of tenure and pay for judges under the CRA(2005) s33 and SCA s11(3) mean senior judges can only be removed from their position by the Queen, following a vote in both Houses of Parliament. This means they are free from pressure from other branches when ruling on points of law. Judicial appointments are made via JAC, formalizing a process that was previously informal and the Lord Chancellor is no longer Head of the Judiciary as of implementation of the CRA.
- Judges are immune to civil suits arising from judicial decisions.
- Contempt of court rules prevents outside interference with the judicial processes.
- Constitutional conventions wherein eg ministers do not criticize judges and vice versa.
Executive v Judiciary checks and balances:
- Judicial review as a mechanism for policing executive decisions.
Legislative v Judiciary overlaps:
- Legislative theory in which the judiciary has a quasi-legislative role through the creation and development of laws that become enshrined in statute eg R v R case on marital rape.
- Blurring of boundaries through members of the judiciary chairing public inquiries eg Leveson Inquiry into the culture, practice, and ethics of the press, thereby fueling claims of judicial impartiality.
- The monarch is a member of both, although the role is ceremonial only.
Legislative v Judiciary separations:
- The importance of conventions
- Sub justice rule in which parliament will not debate pending legal proceedings.
- Creation of the Supreme Court, separating the law lords from the House of Lords, and moving the judiciary out of the legislature.
- House of Commons Disqualification Act (1975) judges can not be MPs.
- Bill of Rights 1689 in which MP’s have freedom of speech free from fear of prosecution.
Legislative v judiciary checks and balances:
- Post Jackson, courts may strike down legislation undermining the rule of law.
- Parliament can vote to dismiss a judge if not of ‘good behavior’.
- Parliament can legislate to change the law if it disapproves of common law developments.
In conclusion, Bradley and Ewing (2006) argue that a strict separation of powers is neither possible in theory nor practice. Barnett (2006) believes strict separation to be unworkable leading to constitutional and legal deadlock. Bagehot (1867) considered the UK to have a partially fused separation of powers, describing it as the ‘efficient secret’ of the UK, preventing political deadlock. Either way, you view the theory of separation of powers, Young's (2019) statement that they are fundamental, is I believe true.
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