Exploring the Concept of 'Separation of Powers

Introduction

The term ‘Separation of Power’ in its true sense is related to the concept of democracy nature of a country. While the common conception of democracy mostly revolves around the citizen’s ability to choose their own government through the power of voting, the in-depth meaning of democracy and the democratic nature of a country hides in the better implication of separation of power between three wings of a country. The ultimate concept of not having concentrated power in the hands of King of the country was first inspired by the Great Britain and Baron De Montesquieu, a French philosopher, after being immensely inspired by the Britain’s unwritten implementation of ‘Separation of power’, proposed the theory in the year of 1748.Thus, when Lord Mustill commented about Britain’s superiority in implementation of ‘Separation of Power’ In the case of R V. Secretary of State for the Home Department, it was not wholly unjustified but it surely seemed brash and self-assertive, without any regard to its current situation. Hence, we shall discuss about the extent of Lord Mustill’s comment in this piece and critically assess whether his comment in the given case study is justified or not.

Separation of Power – A concept

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The basic concept of ‘Separation of power’ was deduced from the culture of the ancient Rome. Aristotle is the first philosopher to identify the concept of ‘Separation of power’ in his book namely ‘The Politics’ (384-322 BC) and he is the first philosopher to talk about the concept of separation of power.

With the establishment of democracy, the concept was founded that “Government is the ultimate agency through which the wills of the State is played and formulated”. For the purpose of formulating the will of a State, it is necessary to de-concentrate the power to govern the subjects of the State between different wings and these different wings of the Government can said to exist in three forms – Legislature, Executive and Judiciary. These are the three pillars of a democracy and the concept of ‘separation of power’

Thus, the concept of separation of power can be defined as when the government of a State does not possess the ultimate power to rule its subjects and there exist a clear demarcation of power

R V. Secretary of State for the Home Department , [1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145

John A. Fairlie Source. The Separation of Powers Author(s):Michigan Law Review , 1923, Vol. 21, No. 4, pp. 393-436

between the different agencies of a government which ensures the respective liberty of each other, yet does not contradict with the functions of each other or override with each other to keep anarchy under check. Thus, in its basic form, the main function of the concept of separation of power is to keep the anarchy of a government under check by separation of functions to rule its subjects.

The purpose or aim of Separation of Power rests on the below-mentioned three elements or the basic principles:

One of the basic purposes of the theory of separation of power is to tie the hands of the government in a way to keep the rise of anarchy under check. The aim of separation of power resides with the concept that it diminishes the chance of concentration of power in the hands of one man or one government. It limits the hands of the tyrants and restricts the government from taking any arbitrary decisions on their own.

Apart from the purpose of demarcating power, the concept of separation of power also aims at diffusing the arbitrary power of one another. The three wings i.e. the Legislature, the Executive and the Judiciary functions as three delegates or machinery of the State and each have their own sets of function that does not necessarily contradict each other. However, if one of the wings interferes with the State’s will in a way to alter the nature of the democracy of State, the other wings shall have enough power to diffuse that one wing.

Also, the theory of separation of power aims at keeping the balance of the State will to rule its subjects. The purpose of this ancient concept is to act as an antidote to despotism. Thus, the main purpose or aim of the theory of separation of power provide the optimal liberty or freedom to the individuals of the State where such liberty shall exist independently as long as it does not interfere with the liberty of the other. In simple words, the theory of separation of power

Stephenson, Matthew C. “Does Separation of Powers Promote Stability and Moderation?” The Journal of Legal Studies, vol. 42, no. 2, 2013, pp. 331–368.

Ervin, Sam J. “Separation of Powers: Judicial Independence.” Law and Contemporary Problems, vol. 35, no. 1, 1970, pp. 108–127.

aims at preserving the basic concept of liberty in the working of the governmental machineries of the State.

The three elements of Separation of power are the three wings of the government –

a) Legislative: the legislative of the State shall reside with the law-making power of the country. The parliament of a State is entrusted with the functions of a legislative.

b) Executive: The function of the executive is to implement the law made by the legislature and enforce such laws in order to rule the subjects of a State.

c) Judiciary: Judiciary of a State has the function of cross-checking the laws made by the legislature and interprets it for the welfare of the State or a country.

The Doctrines of Separation of Power

Even though the concept of separation of power seems fairly simple and easy to follow in order to keep the will of State in the right place, the concept of ‘Separation of Power’ can be divided into two main doctrines which defines and demarcates the functions of the abovementioned three wings of government in a broad sense. It is true that separation of power merely means for the compartmentalize of power, the nature of such compartmentalize again demands to be defined in a more definite way. Thus, the doctrine of separation of power aims at clarifying the demarcation of power under two broad heads – the pure version of separation of power and the partial version of separation of power.

The pure version of separation of power:

The pure version of separation of theory works in its direct way and it is considered to be of having a strict implication of the basic concept of the separation of power. This doctrine of separation of power takes the word-by-word meaning of the subject and implements its. It is Jean Bodin (1530-596) who first vaguely assembled the concept of separation of power, followed by John Locke as he describes the concept of separation of power in his book namely “Two Treaties on Civil Government.”

Thus, the pure version of separation of power essentially denotes the meaning of having three separate wings of the government, having separation functions of their own. Under the pure version of separation of theory, none of the wings interfere with each other and they are responsible only for their own actions. While there exist some quantity of balance checking, the functions of each wing are completely separated from each other and they are not to be entangled. A very close resemblance of the pure doctrine of separation of power can be seen at the US Constitution.

The partial version of separation of power:

The partial version of separation of power is more loosely assembled concept of separation of power. Under this doctrine of separation of power, each wing can interfere into each other’s functions. French Philosopher, Baron De Montesquieu’s ‘Espirit De Lois’, written in the year of 1748 is considered to be composed of the partial version of separation of power.

Thus, in the partial doctrine of separation of power, the functions of the each wing of the government are not rigid and they are more flexible in way to contradict with each other. According to this doctrine of separation of power, while each of the wings of the government shall have their roles and functions, it shall not be limited to it. Under this segment of separation of power, each wing can interfere, contradict and direct each other to get the better side of the collective goal of the country.

Both of the doctrines of separation of power run with its own risks. While the pure version of separation of theory with complete demarcation of powers with minimal interference can easily lead to a anarchy, but the partial version of separation of power can let one wing of the government abuse its power without any cross-check from the other two wings.

Rossman, George. “The Spirit of Laws: The Doctrine of Separation of Powers.” American Bar Association Journal, vol. 35, no. 2, 1949, pp. 93–96.

The partial doctrine of separation of theory applies to the current UK Constitution and how UK’s constitutional agencies work essentially resemble the doctrine of partial view of separation of power herein.

A Critical Analysis of The Concept of Separation of Powers in UK: Can UK Truly Be Said To Have An Effective Separation Of Power?

In the early 18th century, when France was tormented under the tyrant’s rule, it was Baron De Montesquieu who borrowed the concept of separation of power from the Great Britian. The concept of separation of power is thus said to be borrowed from the 18th century ruling of the United Kingdom, yet in the modern context, UK shows very slim resemblance to the demarcation of power. As it has been discussed already, the Constitution of United Kingdom essentially follows the partial doctrine of separation of power and in this segment, we shall discuss why.

As the British Constitution is unwritten and inconclusive in various aspects, the power demarcation under this Constitution is vague as well. The Constitution of United Kingdom does not believe in a complete demarcation of power but leans on the concept of ‘sharing out’ responsibilities within each other. On the surface, it loosely resembles the doctrine of partial separation of power but if the power division of the United Kingdom is to be scrutinized, it can be seen that it is more than partial in such a way that one wing’s function is compromised in the view of the other

Under the UK Constitution, the King shares an integral part of the legislature and his influence works greatly on the parliament. Also, the King’s ministers are members of the different houses of the parliament. Thus, this is a classic example on how the position of the legislature is compromised in the hands of King of the country as his ministers are the ones who make and amend the laws of the lands. Again, the Lord Chancellor enjoys a shared position of the Judiciary and the Cabinet. The position of Judiciary is further compromised by tying the fate of the judicial members in the hands of the members of the Parliament.

Brown, W. Jethro. “The Separation of Powers in British Jurisdictions.” The Yale Law Journal, vol. 31, no. 1, 1921, pp. 24–52.

Another prime instance of the compromised separation of power in United Kingdom is how a new law is assented. After a Bill is passed by both Houses of the Parliament, it needs special assent from the Kings of the country which is the called the Royal Assent. Without Royal Assent, a Bill cannot form an Act in the United Kingdom. Also, the Parliament Act, 1949 concludes that even if a Bill is rejected by both the houses of the Parliament, it can still form a new law under the Royal Assent, once it has been kept on hold for a time period of twelve months.

Apart from the compromised power of the legislature, the judiciary has several limited powers as well. Under the construction of the judiciary system of the country, the judges cannot interpret a law or a case in such a manner that it directly contradicts the political integrity of the county. Also, UK courts perform several law making functions such as making minor laws or amending minor laws of the country directly, without any reference of any cases herein.

As British Constitution is unwritten, no particular separation of power can be traced in this manner and it fairly retains the concept of mixed government where each wing of government continues to overlap the functions of each other. Hence in the given case of R V. Secretary of State for the Home Department, Lord Mutill’s commentary on UK’s perfect position on demarcation of power might be concept that is misled and misinformed. In a State where so many functions of the legislature, executive and judiciary overlap with each other, UK cannot surely be construed as one of the prime example of having the concept of separation of power engraved into the system.

However, if we critically analyze the recent development of United Kingdom’s view on the same, it can be concluded that United Kingdom’s concept of establishing a better sense of separation of power is on the rise and it is becoming more stringent with every passing year and UK Constitutional work is leaning more on separating the functions of the Legislature, Executive and Judiciary. United Kingdom has adopted implemented the Constitutional Reforms Act in the year of 2005 which witnesses such development of UK. According to this Act, the position of Lord Chancellor has been segregated from the judicial duties and the appointment of the judges in the courts of England and Wales has been granted in the hands of the newly appointed

F. Andrew Hessick, The Separation-of-Powers Theory of Standing (2017). North Carolina Law Review, Vol. 95, Number 3

Ibid

R V. Secretary of State for the Home Department , [1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145

President of the Courts. The influences of the ministers have been minimized in controlling the judicial duties of the courts and with the help of this Act of 2005, an independent Supreme Court has been established in the United Kingdom and the Supreme Court of the State is not to be influenced any either houses of the Parliament. Also, section 61 of this Act, provides the Judiciary with complete independence of appointing judges and juries without any external or internal influence from the house of the parliament or the King of the United Kingdom.

In support of United Kingdom’s new implementation of separation of power, there exist several case laws where different judges have hold the same view of Lord Mustill. In the case of Duport Steels Ltd. V. Sirs, Lord Diplock has observed that even though the unwritten Constitution of Britain does not hold the strict view of the Separation of power, the same has been slowly adopted by the State. Also, in the case of Griffith v. the Queen, the same view was adopted by the Privy Council as well.

Thus, if we critically analyze the view of Lord Mustill in the context of the modern development of the United Kingdom’s Constitution an how the judiciary of the country has been provided with separate functions and a complete independence in regard to the appointment of judges, it can be said that United Kingdom is slowly accumulating a better concept of the separation of power and the country is slowly refraining from acknowledging the partial doctrinal version of the theory of separation of power. However, the commentary of Lord Mustill in the given case study provides us with a self-assertive view on UK’s separation of power which has also been concluded with the remark of ‘peculiar’. In such regard, Lord Mustill’s view does not hold completely true or relevant as what United Kingdom has done in recognizing the characteristics of separation of power, is just baby steps and many of the aspects of UK’s power demarcation follows the old rule of partial development. Thus, Lord Mustill’s commentary in the given case study is also partially true and even though United Kingdom has achieved a sense of separation of power, it has a long way to go.

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McHarg, Aileen. “Reforming the United Kingdom Constitution: Law, Convention, Soft Law.” The Modern Law Review, vol. 71, no. 6, 2008, pp. 853–877

Smith, Roger. “Constitutional Reform, the Lord Chancellor, and Human Rights: The Battle of Form and Substance.” Journal of Law and Society, vol. 32, no. 1, 2005, pp. 187–201

Ibid

Duport Steels Ltd. V. Sirs, [1980] 1 WLR 142, 157B-158C

Griffith v. the Queen, [1977] HCA 44 - 137 CLR 293; 51 ALJR 749; 15 ALR 1

F. Andrew Hessick, The Separation-of-Powers Theory of Standing (2017). North Carolina Law Review, Vol. 95, Number 3

Conclusion

In conclusion, it can be said that Lord Mustill’s view on United Kingdom’s separation of power is compromised and the true meaning of the theory has not be established in the soul of the UK Constitution yet. The overlapping of power might have been discontinued but a complete demarcation of power with a balance of cross-checking each other’s functions, is still a distant future for the United Kingdom.

BIBLIOGRAPHY

Journals

Brown, W. Jethro. “The Separation of Powers in British Jurisdictions.” The Yale Law Journal, vol. 31, no. 1, 1921, pp. 24–52.

Ervin, Sam J. “Separation of Powers: Judicial Independence.” (1970). Law and Contemporary Problems, vol. 35, no. 1, pp. 108–127.

F. Andrew Hessick, “The Separation-of-Powers Theory of Standing” (2017). North Carolina Law Review, Vol. 95, Number 3

John A. Fairlie Source. “The Separation of Powers” (1923). Michigan Law Review. Vol. 21, No. 4, pp. 393-436

McHarg, Aileen. “Reforming the United Kingdom Constitution: Law, Convention, Soft Law.” (2008). The Modern Law Review, vol. 71, no. 6, pp. 853–87

Rossman, George. “The Spirit of Laws: The Doctrine of Separation of Powers.” (1949). American Bar Association Journal, vol. 35, no. 2, pp. 93–96

Stephenson, Matthew C. “Does Separation of Powers Promote Stability and Moderation?” (2013). The Journal of Legal Studies, vol. 42, no. 2, pp. 331–368

Smith, Roger. “Constitutional Reform, the Lord Chancellor, and Human Rights: The Battle of Form and Substance.” (2005). Journal of Law and Society, vol. 32, no. 1, pp. 187–201

Case Laws

Duport Steels Ltd. V. Sirs, [1980] 1 WLR 142, 157B-158C

Griffith v. the Queen, [1977] HCA 44 - 137 CLR 293; 51 ALJR 749; 15 ALR

R V. Secretary of State for the Home Department , [1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145

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