Does the theory of the Separation of Powers apply to the Constitution of the UK?
The Separation of Powers is a political theory that originates from the 17th century and it has subsequently had global political significance. As a concept it primarily derives from the ideas of the political philosophers Baron de Montesquieu (1689-1755) and John Locke (1632-1704), and its emergence as a model for government has to be viewed in the context of contemporary reaction to the abuses of autocratic monarchies during both political theorists' lifetimes. In this sense, its basic premise can therefore be summarised as seeking 'to avoid the concentration of power into the hands of a single person or group' .
The model of government envisaged by Montesquieu and Locke was therefore said to reflect predominantly liberal values. The trailblazing role model for such a comparatively radical political structure has been the American Constitution of 1787, in which the principles of this 'separation of powers' came to material fruition. This constitutional model focused on 'checks and balances' between different government branches and has been based on the explicit division of political power which:
'proposes that each of the three functions of government (legislation, execution and adjudication) should be entrusted to a separate branch of government (the legislature, the executive and the judiciary, respectively)'.
Such a deliberate division and fragmentation of power is often contrasted to the autocratic and anti-democratic tendencies of dictatorial regimes that have emerged over history, which in the past were monarchical but which in the modern era are often associated with the 'Stalinist' influence over Eastern Europe during the Cold War period. The theory of the separation of powers is therefore seen as a fundamental element to protect against tyrannical government and to promote what constitutes a liberal democracy. The existence of fragmented branches of government are viewed as essential values of such a political system:
'The legislature, executive and judiciary should be able to act independently of each other; no single branch of the state should dominate the rest' .
Thus, the basic structure of a vibrant liberal democracy should ostensibly involve the different branches of government having the capacity to act independently from the other with minimal overlap of power and influence. In the same vein, no branch should be able to dominate or manipulate the others. However, while by no means containing a dictatorial structure on the scale of post-war 'Stalinist' governments, the British Constitution is fundamentally different to the US constitutional model and its fragmented structure. The American model is a deliberately designed political body constructed with precision by the 18th century 'founding fathers' and maintained to the present day by an entrenched codified document. By contrast, the British constitutional model has evolved and adapted over the centuries, deriving from statute law, customs and monarchical power among various sources. Such contrasting constitutional evolution has led to differing interpretations and applications of the theory of the separation of powers.
In this context, Britain does not have a formally codified constitution as does the USA and most other western democracies, and its constitution is referred to as being 'uncodified', relying on a variety of sources for its content. Only a minority of nations employ such a political structure and in this sense Britain's Constitution 'remains distinctive for not being codified in a single document' , as each political branch's powers are not clearly prescribed or demarcated. However, such a distinct structure has had repercussions for the practical operation of the separation of powers and how Britain functions as a liberal democracy, and some commentators criticise the British constitutional model and claim it is flawed.
In essence, the separation of powers within Britain's constitutional system tends to be far less explicit and somewhat blurred in comparison to the more rigid US system of government. Indeed, some would say that the basic principles of the separation of powers are not specifically adhered to within the British political model. The most obvious evidence of this is reflected in Britain's parliamentary system of government, as opposed to a presidential type in the USA, where 'the assemblies and executives are formally independent of one another and separately elected' . In practice this means that in the USA the President and members of the legislature (Congress) are elected separately and occupy completely different political branches, whereas in the UK the most senior elected members of Parliament also form the executive branch of government. This more fused political structure leads to a situation where the Prime Minister and Cabinet (the executive) are also elected members of Parliament (legislature), creating a scenario that conflicts with the essence of the separation of powers. The British political system also had the historic position of Lord Chancellor possessing the greatest theoretical power, being part of the executive (Cabinet), legislature (House of Lords) and the head of the judiciary simultaneously. Such a concentration of power is broadly prohibited in the USA and other western democracies due to the nature of their codified constitutions.
Such constitutional developments have led to the creation of political circumstances in the UK whereby the executive has gradually come to dominate the legislature, despite the British political tradition of sovereignty ostensibly residing in Parliament. This scenario has led to allegations of excessive power within the executive and of an 'elective dictatorship' , with 'public policy originating in cabinet and being presented to a party-dominated House of Commons' . In such an environment, a government with a significant parliamentary majority, e.g. Labour since 1997, can maintain control of both the executive and the legislature, with Parliament becoming a mere 'rubber-stamp' of approval in the process of creating legislation. The judiciary, symbolised by the role of the Lord Chancellor who is a member of the ruling party, has over the years appeared to have been manipulated by the governing regime in a way that the US Supreme Court could never be. Such trends of excessive executive power have been exacerbated by dominant Prime Ministers such as Margaret Thatcher and Tony Blair .
This is a far cry from the more rigid American separation of powers, when Congress routinely obstructs presidential executive demands, even when a President has significant power in their own right. The American system can also result in different branches of government being controlled by different political parties, e.g. between 1995 and 2001, Democrat President Bill Clinton faced a Republican-dominated Congress. This is a further expression of how power is more clearly separated within the USA, and such constitutional emphasis on conflict between the different branches is enshrined within the US codified constitution, whereas within the less formal British constitutional settlement it is not.
However, in recent years the British government appears to have accepted this constitutional imbalance and has taken specific measures to enhance its version of the separation of powers, addressing its rough edges and tackling some of the growing criticisms of executive dominance that has been a consequence of the UK's constitutional development. This process has been evident in a number of key constitutional reforms, starting with the Human Rights Act of 1998, a piece of legislation that has created more explicit safeguards concerning the distribution of political power within the UK. In particular it appears to have provided additional powers to the branch of government that is often overshadowed within the UK's political system, namely the judiciary.
This Act has subsequently enforced the need for British law-makers to strictly adhere to the principles of human rights when passing legislation in order to remove the prospects of legal challenges at a later stage. After this Act was passed, one of the most prominent judicial challenges under human rights legislation occurred in December 2004, when the Law Lords declared that the detention of eight terrorist suspects without trial at Belmarsh Prison was in conflict with the suspects' human rights. In practice, as evident in the Belmarsh case, it means that legislation that derives from Parliament, under the control of the executive, can now be more closely scrutinised and challenged by the judiciary, bolstered by an enhanced human rights framework. In this context, Parliament:
'retains its sovereign status..... if the courts cannot reconcile an Act of Parliament with the European Convention on Human Rights, they do not have the power to override..... that legislation..... (but) the courts can declare the legislation incompatible with the European Convention on Human Rights and return the Act to Parliament for revision' .
Thus, a clearer separation of powers now appears to be in place as a result of the Human Rights Act. However, while the Act does provide added powers of judicial scrutiny over the executive and legislative branches in their law-making role, Parliament retains ultimate sovereignty and can change the law as it wishes, in spite of judicial criticism. In terms of ignoring such judicial interventions, any government would probably cause itself considerable political damage in doing so, but it has the right to do so nevertheless. In this respect, the UK Human Rights Act is not as robust in preserving fragmented government and civil liberties as the US Bill of Rights is, which it has been compared to. Indeed, the current British Conservative opposition has even talked of abolishing this legislation, and this would have implications for tackling the effectiveness of the separation of powers in the UK.
This escalation of the process of judicial review represents a similar dynamic to the more pro-active constitutional role carried out by the US Supreme Court, which over the years has promoted a higher degree of judicial activism due to the greater American emphasis on 'checks and balances', within the codified US Constitution. This is a significant difference between the UK and the USA in relation to the separation of powers and effective checks and balances:
'In the USA, for example, the constitution provides the Supreme Court with the power to declare that laws passed by Congress are unconstitutional. No such check applies in the UK'.
An illustration of this is that in the USA it was a judicial ruling by the Supreme Court (Roe vs. Wade, 1973) that effectively legalised abortion, while in the UK the same ruling originated in an Act of Parliament, the 1967 Abortion Act. This indicates parity of power and significance between the American branches of government, which is not traditionally the case in Britain. In this context, such high-profile interventions by the Supreme Court suggest that it acts as an effective check on other branches as a distinct, 'separate' part of the governing process in its own right.
Britain appears to be modernising its more evolutionary constitutional model with further legislative and institutional reforms such as the Constitutional Reform Act (2005). A key element of this Act was the creation of a Judicial Appointments Committee that limited executive patronage in appointing the judiciary, as well as a British Supreme Court, reflecting a more explicit separation of judicial powers. This new court is due to begin operating in October 2009, replacing the Law Lords as the highest Court of Appeal in the UK. The Law Lords have in many ways symbolised the blurring of the branches of government in the UK, with their dual role as interpreters of the law on behalf of the judiciary, but also as law-makers due to their membership of the House of Lords. This Act also significantly reduced the powers of the Lord Chancellor, formerly the most powerful position in British politics with a foothold in all government branches. The Law Lords and Lord Chancellor were increasingly viewed as anachronisms within the UK political system and subsequently deemed to be in need of significant reform as part of the process of refreshing Britain's implementation of the separation of powers theory.
Britain's uncodified constitutional model therefore appears to be at the root of the problem regarding the somewhat hazy application of the separation of powers within the UK's political system. A broad solution that would create a more precise implementation of the separation of powers would be the introduction of both a codified constitution and a bill of rights, modelled on the USA. This is the policy of the Liberal Democrats and is promoted by pressure groups such as Charter 88, and it reflects an acknowledgment by some liberal reformers that Britain must emulate the American political model in the application of the separation of powers. Recent constitutional reform, notably the newly-created Supreme Court, suggests that Britain is progressively adopting American practices in this respect, and there may be further examples in the pipeline. This rather piecemeal approach to refining the constitution aims to create a more fluent expression of the separation of powers, yet it has led to observations that the 'constitutional landscape has changed but without the benefit of a well-drawn map' .
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Lord Hailsham, 'Richard Dimblebey Lecture', BBC, 21st October 1976
Michael Quinlan, 'Blair has taken us towards an elective dictatorship', 'The Guardian', 22nd October 2004,http://www.guardian.co.uk/politics/2004/oct/22/butler.media