The separation of powers in the United Kingdom is a system of government that was designed to protect the rights and liberties of citizens. The system consists of a series of branches of government, each with its own authority and responsibility. The government is answerable to the people, not the other way around. This system is often seen as one of the strengths of the UK economy, as it allows for a high level of trust and transparency between the branches of government.
Introduction of Separation of Powers in the United Kingdom:-
The separation of powers, together with the rule of law and parliamentary sovereignty, runs like a thread throughout the constitution of the United Kingdom. It is a doctrine that is fundamental to the organization of a state and to the concept of constitutionalism in so far as it prescribes the appropriate allocation of powers, and the limits of those powers, to differing institutions.
The concept has played a major role in the formation of constitutions. The extent to which powers can be, and should be, separate and distinct was a central feature in formulating, for example, both the American and French revolutionary constitutions.
In any state, three essential bodies exist the executive, the legislature, and the judiciary. It is the relationship between these bodies that must be evaluated against the backcloth of the principle. The essence of the doctrine is that there should be, ideally, a clear demarcation of personnel and functions between the legislature, executive, and judiciary in order that none should have excessive power and that there should be in place a system of checks and balances between the institutions.
However, as will be seen, there are significant departures from the pure doctrine under the United Kingdom’s constitution, and it must be conceded that, while the doctrine is accorded respect, it is by no means absolute.
In order to evaluate the extent to which the separation of powers applies and the Man exceptions to the pure doctrine it is necessary first to define the major institutions of the State and evaluate the relationship between them. In order to do this the following relationships will be examined:
- The executive and the legislature;
- The legislature and the judiciary;
- The executive and the judiciary.
The identification of the three elements of the constitution derives from Aristotle (384-32, BC). In The Politics, Aristotle proclaimed that:
There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.
The constitutional seeds of the doctrine were thus sown early, reflecting the need for government according to and under the law, a requirement encouraged by some degree of separation of functions between the institutions of the state.
The constitutional historian FW Maitland traces the separation of powers in England to the reign of Edward I (1272-1307):
In Edward’s day, all become definite there is the Parliament of the three estates, there is the King’s Council, and there are the well-known courts of law.
Viscount Henry St John Bolingbroke (1678-1751), in Remarks on the History of England, advanced the idea of separation of powers. Bolingbroke was concerned with the necessary balance of powers within a constitution, arguing that the protection of liberty and security within the state depended upon achieving and maintaining an equilibrium between the Crown, parliament, and the people. Addressing the respective powers of the King and parliament Bolingbroke observed that:
Since this division of power, and these different privileges constitute and maintain our government, it follows that their confusion of them tends to destroy it. This proposition is therefore true; that, in a constitution like ours, the safety of the whole depends on the balance of the parts.
Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance d the independence of the judiciary in De l’Esprit des Lois (1748):
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty . . . Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, executing public affairs, and trying crimes or individual causes.
Here is the clearest expression of the demand for a separation of functions. It has been remarked that Montesquieu’s observations on the English constitution were inaccurate at the time, representing more a description of an idealized state than reality! Moreover, it should not be assumed that Montesquieu’s preferred arrangement of a pure separation of powers is uncontroversial.
Throughout history, there has been exhibited tension between the doctrine of separation of powers and the need for a balanced government an arrangement depending more on checks and balances within the system (as emphasized by Bolingbroke) than on a formalistic separation of powers.
Sir Ivor Jennings has interpreted Montesquieu’s words to mean not that the legislature and the executive should have no influence over the other, but rather that neither should exercise the power of the other.
Sir William Blackstone, a disciple of Montesquieu, adopted and adapted Montesquieu’s strict doctrine, reworking his central idea to incorporate the theory of mixed government. While it was of central importance to Blackstone that, for example, the executive and legislature should be sufficiently separate to avoid ‘tyranny’, he nevertheless viewed their total separation as potentially leading to the dominance of the executive by the legislature. Thus, partial separation of powers is required to achieve a mixed and balanced constitutional structure.
The Contemporary Doctrine:-
The separation of powers doctrine does not insist that there should be three institutions of government each operating in isolation from the others. Indeed, such an arrangement would be unworkable, particularly under a constitution dominated by the sovereignty of parliament.
Under such an arrangement, it is essential that there be a sufficient interplay between each institution of the state. For example, it is for the executive, for the most part, to propose legislation for parliament’s approval. Once passed into law, Acts of Parliament are upheld by the judiciary.
Complete separation of the three institutions could result in legal and constitutional deadlock. Rather than a pure separation of powers, the concept insists that the primary functions of the state should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other. If hypothetical constitutional arrangements within a state are considered, a range of possibilities exists:
- Absolute power residing in one person or body exercising executive, legislative and judicial powers: no separation of powers;
- Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel: pure separation of powers; and
- Powers and personnel are largely but not totally separated by checks and balances in the system to prevent abuse: mixed government and weak separation of powers.
It is to this third category that the constitution of the United Kingdom most clearly subscribes.
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