Any conformity to the principle of the separation of powers by the UK system of government is purely accidental

Introduction

In the UK, the principle of separation of powers is not applied in the pure sense. There are a number of areas where the dilution of separation of powers principle is apparent. However, it would be incorrect to say that any conformity to the principle is accidental, as that would imply that there is no deliberate application of the principle. The fact that there is a deliberate application of the principle, even if it is in a diluted form, is seen in a number of judgements, where reference has been made to the principle. The Constitutional Reforms Act 2005, also seeks to implement the principle.

This essay discusses the applicability of the principle of separation of powers in the UK. The essay concludes that the applicability of the principle of separation of powers is not accidental, but deliberate. Although, the application of the principle in not in the pure sense.

Separation of powers principle in the UK

The principal of separation of powers envisions that the functions of the different organs of the government shall be strictly divided and that each organ would perform the functions assigned to it. Moreover, one organ of the government shall not interfere in the functions of the other.

In the UK, powers are divided between the three organs of the government: legislature, executive and judiciary. However, the it cannot be said that the principle is applied in the pure sense. At the same time, it cannot be said that the powers are centralized in any one organ. The division of powers as between the three organs, is clearly seen in the UK, as well as the system of checks and balances that such division ensures.

The judiciary is a distinct organ of the government, as also reiterated by Lord Steyn in R (Anderson) v Secretary of the State for the Home Department. In this case, Lord Steyn observed that there was a strict separation of powers between the judiciary and the other organs of government. He held this to be

1. B Jones and P Norton, Politics UK (Oxon: Routledge 2014) 61.
2. [2002] UKHL 46.

a strong principle of system of government. This shows that in the opinion of the judiciary there is a separation of powers between judiciary and the other organs, and being an important principle of law in the English legal system, one can conclude that the application of the principle in not accidental. This is proved by the observation of Lord Bingham in DPP of Jamaica v Mollison, where he observed that there was a “total and effective” separation of powers between exercise of judicial powers on the one hand and executive and legislative powers on the other. In Wilson v First County Trust Ltd (No 2), it was observed: “Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review.”

It is therefore clear that the judicial opinion on the separation of powers principle as between the judiciary and the other organs is that such a separation exists. Admittedly, that does not answer the situation with regard to the other two organs of the state: the executive and the legislature.

In the UK, there is overlapping of personnel as between the executive and the legislature. Ministers in the government are also members of the Parliament. At the same time, it must be considered that the functions do not overlap. The legislature makes the law and the executive has administrative functions. Therefore, even if there is overlapping of personnel, there is no overlapping of functions, signifying an application of separation of powers principle.

Recently, major changes have been effected in the English legal system due to the passage of the Constitutional Reforms Act 2005 (CRA 2005). This also has implications in the application of the principle of separation of powers. Prior to the enactment of CRA 2005, the Lord Chancellor exercised functions in all the three organs of the government. He was the head of the judiciary, Speaker of the House of Lords and also a senior cabinet minister. This has been considered by some writers to mean that there was a dilution of separation of powers principle in the UK. With the passage of this law, and

1. Ibid.
2. Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge University Press 2011) 27.
3. [2003] 3 WLR 568, 589, [70].
4. Dawn Oliver, Gavin Drewry, The Law and Parliament (Cambridge University Press 1998) 16.

the establishment of the Supreme Court, the Lord Chancellor’s role in the judiciary has ceased to exist. Now, the CRA 2005 mandates the Lord Chief Justice as the President of the Courts of England and Wales and Head of its Judiciary.

The establishment of the UK Supreme Court under the CRA 2005, is an important event in recent times. The Supreme Court replaced the House of Lords to become the highest court of appeal in the UK for all cases, both civil and criminal from England, Wales and Northern Ireland and civil cases from Scotland. The Lord Chief Justice of the Supreme Court sits in the Court of Appeal, High Court, County Courts, Crown Courts and Magistrates’ Courts.

The important question is, if the separation of powers principle is not applied in the pure sense, can it be said that there is no deliberate attempt to apply it?

Allan points out that separation of powers principle can vary in form as well as degree, and also be absolute or partial in its application. Where the pure view of the separation of powers theory has three components, that is, separation in personnel, functions and institutions, it is difficult to practically maintain this disctinction. This is supported by the views of Carolan, who says that “from a practical perspective, a hermetic division of governmental functions…was impossible to achieve.”

Therefore, just because the application of the principle is not in the pure sense, it cannot be said that there no deliberate application of the principle. It is pertinent to add here that even in the United States, which is considered to have applied the separation of powers principles in their Constitution, there is dilution in the application of the principle.

Conclusion

1. CRA 2005, s 7.
2. CRA 2005, s.7
3. TRS Allan, ‘The Rule of Law’, in David Dyzenhaus, Malcolm Thorburn (eds.), Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press 2016) 223.
4. Ibid 225.
5. Ibid 226.
6. Eoin Carolan, The New Separation of Powers: A Theory for the Modern State (Oxford: Oxford University Press 2009) 19; also, T Ingman, The English Legal Process (Oxford University Press 2011)
7. RJ Krotoszynski, ‘The separation of legislative and executive powers’ in Tom Ginsburg, Rosalind Dixon (eds) Comparative Constitutional Law, (Edward Elgar, 2011).

The application of principle of separation of powers is deliberate in the UK, as is evident from the judicial opinion expressed at different occasions, as well as scholarly opinion. The application of the principle does not have to be in the pure sense and can be applied absolutely or partially.

Bibliography

• Allan TRS, ‘The Rule of Law’, in David Dyzenhaus, Malcolm Thorburn (eds.), Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press 2016)
• Carolan E, The New Separation of Powers: A Theory for the Modern State (Oxford: Oxford University Press 2009)
• Ingman T, The English Legal Process (Oxford University Press 2011)
• Jones B and Norton P, Politics UK (Oxon: Routledge 2014)
• Krotoszynski RJ, ‘The separation of legislative and executive powers’ in Tom Ginsburg, Rosalind Dixon (eds.) Comparative Constitutional Law, (Edward Elgar, 2011)
• Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge University Press 2011)
• Oliver D and D Gavin, The Law and Parliament (Cambridge University Press 1998)