Separation of Powers - Constitution of the United Kingdom 

Separation of Powers

The concept of separation of powers is of great antiquity and can be attributed to Aristotle (384-322 BC); however, the clearest exposition of the doctrine can be found in Montesquieu 's De L' Espirit des Lois 1748.The essence of the doctrine of separation of powers is that there should be, a clear demarcation in function between the legislature, executive and judiciary in order that none should have excessive power and there should be in place a system of checks and balances between the institutions. The doctrine does not emphasis that there should be three institutions of the government each operating in isolation from each other. Indeed such an arrangement would be unworkable. If constitutional arrangements within a state are considered, a range of possibilities exists: 

i. absolute power residing in one person or body exercising executive, legislative and judicial powers: no separation of powers.

ii. power being spreaded between three separate bodies exercising separate functions with no overlaps in function or personnel: pure separation of powers; and

iii. powers and personnel being largely- but not totally- separated with checks and balances in the system to prevent abuse: mixed government and weak separation of powers. 

It is the third category that the constitution of the United Kingdom subscribes.

The Institutions of the State

The Executive:

The executive is defined as that branch of the state, which formulates policy and is responsible for its execution. In formal terms, the sovereign is the Head of the executive, The Prime Minister, Cabinet and other ministers mostly are elected Members of Parliament. In addition, the Civil Service, local authorities, police and armed forces, constitute the executive in practical sense.

The Legislature:

The sovereign law making body within the United Kingdom is the Queen in Parliament. Formally expressed, parliament comprises the Queen, the House of Commons and the House of Lords. AIl Bills must pass by each House and receive the royal assent.

The Judiciary:

The judiciary is that branch of the state which adjudicates upon conflicts between state and individual, between state institutions, and between individuals. The judiciary is independent of both executive and the parliament. It is the feature of judicial independence.

There is partial separation: whilst the legislature and the executive are fused and have overlapping functions and personnel, the courts are more or less separate. Yet there are some peculiarities, the most significant of which concern the role of Lord Chancellor and the Attorney General and the position of the Law Lords.

The Lord Chancellor's office:

What is most frequently alleged that it is the office of the Lord Chancellor which violates the doctrine of separation of powers. The reasons behind such claim are the various types of functions of the Lord Chancellor.

Functions relating to courts:

The Lord Chancellor is the head of the judiciary and is formally recognized as President of the Supreme Court under the Supreme Court Act 1981. Magistrates are appointed by the Lord Chancellor. High Court judges, circuit judges and recorders are appointed by the Crown on his advice.

Member of the executive

The Lord Chancellor is a member of the executive arm of the government. He is a senior member of the Cabinet. It is perhaps this feature of the Lord Chancellor's office which gives rise to the greatest concern when evaluated against the doctrine of separation of powers.

Speaker of the House of Lords

The Lord Chancellor is a member of the House of Lords and presides over its proceedings as ex officio Speaker. He is the principal spokesman for the government in the Lords. As a member of the Cabinet, the Lord Chancellor cannot be a politically impartial.

Law reform:

The Lord Chancellor works closely with the Law Commission of England Wales established by the Law Commissions Act1965, The Lord Chancellor may refer matters to the Law Commission for investigation.

The Lord Chancellor and judicial proceedings:

The Lord Chancellor is a member of the House of Lords,  Appellate Committee and judicial Committee of the Privy Council. In relation to judicial functions as member of the House of Lords, it is that the Chancellor will not preside over, or be judicially involved in, cases which involve the Government or are overtly political in nature.

Attorney-General:

The role of the Attorney General may be even more demanding, He is a member of the Parliament and thus represents a constituency and takes the party whip. He is also a government minister bound by the convention of collective responsibility and therefore required to support government policy. He and other legal officers give confidential legal advice to the government. He may instigate or move to stop criminal proceedings, and may bring civil actions in the public interest.

The Law Lords:

The Lords also pose a problem in the consideration of separateness. They are not members of the government but they do sit in the House of Lords in its legislative capacity. To overcome this problem convention requires that they do not offer opinions on matters of a political nature, at least until they have retired from the bench. They do speak on matters directly concerning the legal process and administration of justice, and this may occasionally bring them into the government.

Relationship between Legislature and Executive:

The Sovereign is head of the Executive and also an integral part of the Legislative. Her powers are, however, theoretical rather than real. More importantly, by convention ministers must be members of one or other House of Parliament. Parliament controls the Executive in that Parliament ousts a Government by withdrawing support. Some parliamentary control of the Executive exists in the form of question time, select committees, adjournment debates and opposition days. There are a vast number of statutory instruments issued by ministers every year. Thus the Executive exercises a considerable legislative function.

Relationship between the Executive and the Judiciary:

The Lord High Chancellor is a member of the Executive, head of the Lord Chancellor's department and a member of the Cabinet. He is also the head of the judiciary, entitled to preside  over the House of Lords when it sits as a court. A member of the House of Lords, he is also a member of the Legislature, The Judiciary is appointed by the Executive. Magistrates and circuit judges are appointed by the Lord Chancellor. High Court judges are appointed by the Queen on the advice of the Lord Chancellor. Lords Justice of Appeal and Lords of Appeal in Ordinary are appointed by the Queen on the advice of the Prime Minister after consulting the Lord Chancellor. Magistrates are dismissible by the Lord Chancellor without cause shown. Circuit judges are dismissible by the Lord Chancellor for incapacity or misbehavior.

Relationship between Judiciary and Legislature:

Under the House of Commons Disqualification Act 1975 all full-time judicial appointments disqualify the holder from membership of the House of Commons. But, the House of Lords is both the second chamber of the Legislature and the highest Court of Appeal in the United Kingdom. Moreover the Lord High Chancellor presides over the House when sitting in its legislative capacity. In addition Lord Chancellor is entitled to preside over the Appellate Committee when hearing appeals. Parliament can control the courts, in a sense, by legislation.

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