The Doctrine Of Separation Of Powers

Speaking of the doctrine of the separation of powers, S.A de Smith suggested:

“… no writer of repute would claim that it is a central feature of the British Constitution”.

Do you agree?

The “British Constitution” is a term for the fact Britain has a constitution made up by statutory instruments and judicial precedence in an unwritten form. Just like everything intangible, this unique form of constitution generates a lot of debate in various areas. One of the debates has always been whether the central feature of the British Constitution is based on the ‘Rule of Law’, the ‘Doctrine of Separation of Powers’ or ‘Parliamentary Sovereignty’. The ‘Separation of Power’ is adopted countries such as the United States, is clearly spelt out in Article 20 of the Basic Law of the German constitution and was previously adopted by France. Hence, it can be seen clearly the significance of the doctrine of separation in a constitution, which presents the question of how is it possible for someone to challenge it as a central feature of the British constitution.

Before determining if the doctrine of separation of powers can be regarded as a central feature of the British Constitution, I would like to question the other ‘candidate’ - the Rule of Law. In regards to the topic of the doctrine of separation of powers, Geoffrey Marshall writes, “… the principle is infected with so much imprecision and inconsistency that it may be counted a little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds.” If ‘imprecision and inconsistency’ is the reason for the rejection of the doctrine as a central feature of the British Constitution, then the ‘Rule of Law’ would be an even more invalid candidate for the central feature of the British constitution. This is because the concept is so subjective that it lends itself to an extremely wide range of interpretations. In fact, S.A de Smith himself is so against the concept that he wrote barely a full page about it in his book “Constitutional and Administrative Law” and even criticised A.V Dicey who saw the rule of law as a central feature of the British constitution, and that his ideas are “rooted in Whiggish libertarianism”.

Constitutionalism is a belief in the enforcement of restraints on government by means of a constitution. Its function is to organise political authority, so it cannot be used oppressively or arbitrarily. This is also the value underlying the classic principle of the separation of powers formulated by the French jurist, Montesquie, in L’Esprit des lois. Montesquie formulated the principle based on his perception of the eighteenth-century British Constitution and while two of the conditions of the doctrine propounded by him is being adopted, i.e. the classification of government into Legislative, Executive and Juidiciary, one condition has never taken place – the absolute separation of powers. There was never a time in English constitutional history when the functions of government were neatly classified. The medieval Curia Regis, the King’s Council, exercised all three classes of functions. Before the Constitutional Reform Act 2005, the Lord Chancellor is both a member of the Cabinet and sits in the House of Lords, whereby the Lords act both as judges and as legislators. Even presently, Cabinet and other Ministers sit in the House of Commons.

While the statement made by S.A de Smith (derived from his book which was mentioned above), brings about a surface impression that he is against the doctrine of the separation of powers as a central feature of the British Constitution, it is only after reading his book that one finds his actual views. In my opinion, he is not completely disregarding the doctrine of separation of powers as a feature of the British Constitution, but merely implying that a pure separation of power is “…an interesting but academic speculation”. However, what propels the doctrine as “…a fundamental characteristic of the British system of government” is the partial separation of powers, i.e. the blend of Legislature and Executive. Hence, while the pure separation of powers is not practical, a partial separation of powers is a more ideal feature of the British constitution.

S.A de Smith and Eric Barendt agreed and stressed that in Britain, there is no separation of ‘persons’ between the legislature and the government. This is in contrast to the system of the United States whereby, for instance, the President and his Cabinet cannot be members of Congress. However, this does not inevitably mean that the one branch of government should not be in a position to dominate the others. In fact, in my opinion, the separation of powers is to prevent a tyrannical ruler in a country which threatens individual liberty. However, to invest a large quantity of power in one person who is ruling, albeit not a country, one of the three main organs of government, is similar to creating an opportunity of tyranny in that body itself. This could be said to be a lesson learnt from the delegation of unlimited legislative power by the Reichstag to Hitler and his ministers during the Nazi period. Also, a rigorous segregation of functions is highly inconvenient in the process of legislation and decision-making.

Just because there is a separation of powers, does not mean that matters may not be so designed that each branch operates as a check on the others. Partial separation of powers is more helpfully known as a system of checks and balances since it sets up constitutional procedures under which institutions check or balance the exercise of power by other authorities. One example is the delegation of legislation. Delegated legislation refers to laws, rules and regulations, made by government department, local authorities and other public bodies, under the authority of an Act of Parliament. The justification of this delegation is efficiency due to the amount of legislation needed to be passed every year. This also allows ministers and others to ‘fill in the gap’ after the parent Act has been passed. Even AV Dicey approved of delegated powers on this basis. The implication of delegated legislation in constitutional terms is that a legislative function is being exercised by the executive and not Parliament. Yet, this breach of the doctrine of separation is a necessity given the heavy legislative programme and the modern complexity of legal regulation.

Although S.A de Smith acknowledges the significance of the separation of powers, there is no evidence that he regards it as the central feature of the British constitution. Lord Diplock, however, judicially asserted that, “… it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them”. Eric Barendt, on the other hand, implicitly disregards the doctrine of separation as the central feature of the British constitution. This is because the underlying value of the doctrine in limiting the powers of the government conflicts with the rule of ‘Parliamentary Sovereignty’, a battle in which the latter wins. This could be seen in the case of Burmah Oil v Lord Advocate (1965) in which the House of Lords awarded compensation for property loss and Parliament overruled the decision by enacting the War Damage Act 1965. For that reason, Barendt opinionated that “… it is difficult to take too seriously Lord Diplock’s view that the constitution is based on it (separation of powers)”.

In conclusion, while I agree that the doctrine of separation of powers is significant, it is at most a principle which has influenced the United Kingdom constitution, in particular the independence of the judiciary. In reality, the separation of powers and rule of law are only constitutional theories while Parliamentary Sovereignty is not. Though there is classification of powers, there has not been a clear separation as seen in contrast to other countries especially the United States, and hence cannot be regarded as the central feature which exercised a decisive influence on the development on the British constitution. As Eric Barendt mentioned in his book- “An Introduction to Constitutional Law”, “If the separation of powers is a fundamental principle of a liberal constitution, its weak status in the United Kingdom brings out much of what is inadequate in the present arrangement – their failure to impose significant checks on the conduct of the government.”

Bibliography:

Eric Barendt. An Introduction to Constitutional Law. Oxford University Press, 1998.

Stanley de Smith and Rodney Brazier. Constitutional and Administrative Law (eighth edition). Penguin Books, 1998.

Hilarie Barnett. Constitutional and Administration (tenth edition). Routledge, 2013.