Separation of Powers (Public Law )
The earliest government which is kingship as we all know of during Normandy times have inevitably becomes corrupt and passes into tyranny. The best men in the community then unseat the tyrant and institute an aristocracy. But their descendants are corrupted by the opportunity to gratify their desires and so become oligarchs.
Thereupon the community overthrows the oligarchy and institutes a democracy. Next, the people are debauched by evil leaders, thus the end of the people brings in a monarch once more.
It is recommended that the theory of the separation of powers grew out of the older theory of mixed monarchy as expressed by the Greek historian of Rome Polybius whose idea was simple. Instead of having an aristocracy, monarchy or democracy, a combination of any two of these forms of government would suffice to break away from this vicious cycle. However, the theory of the separation of powers as put forward by Montesquieu deals with the branches of government rather than the type of government. Lord Acton believed that ‘Power tends to corrupt and absolute power corrupts absolutely’.
Therefore, in order to eradicate the corruption of absolute power, Montesquieu identified three branches of government between which power should be allocated and separated: the executive which takes action to implement the law, defend the nation, conduct foreign affairs and administer internal policies; the legislative which makes law, and the judiciary which applies the law to determine disputes and punish criminals. According to the doctrine of the separation of powers, the executive cannot make law.
Neither can the legislative determine disputes or any of the three branches exercise the power of the other. Nor can any one person be a member of any two of the branches. This is in order to protect our emancipation as according to Montesquieu: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… ere to exercise those three powers. Indeed that might be true and rather desirable. To attain a pure separation of powers in theory is feasible though in practice however is almost impossible. The closest constitutional arrangements to the doctrine of separation of powers are found in the United States of America, is where the Congress is elected separately from the President, the President can veto legislation passed from Congress if one third of the house agrees with him and the Supreme Court can declare the acts non constitutional of both Congress and President.
The constitution of the United States is arranged in such a way as to allow a complex system of checks and balances between the three branches of government while maintaining a clear separation of powers between them. However on the other side of the Atlantic however ,perhaps due to the history of the evolution of the British constitution and the absence of a codified constitutional text – the emphasis are more on checks and balances rather than a pure separation of powers.
Yet, according to Hilaire Barnett, the doctrine of the separation of powers ‘runs like a thread throughout the constitution of the United Kingdom. It might be true that the doctrine of the separation of powers is deeply deep-rooted in our constitutional thought and tradition, but our constitutional arrangements and the implementation of these three powers in practice is far from separate. Sir Ivor Jennings interprets the doctrine of the separation of powers as suggesting that neither branch should execute the powers of the other, not that the three branches should not have any influence over each other.
Sir William Blackstone seems to agree to some extend in suggesting that a complete separation of powers may lead to the dominance of the executive by the legislature. In my view it is believed it overlaps between the three branches may be illustrated by the position of Lord Chancellor who is a member of the cabinet while being the head of the judiciary and also chairs the House of Lords when they sit as legislature. The role of the Lord Chancellor is now being reformed by the Constitutional Reform Act 2005 to conform to the theory of the separation of powers.
However, some see his role as a voice on behalf of the judiciary and pivotal in order to preserve the independence of the judicial branch. It is also argued that Lord Chancellor serves as a communicative bridge between the judiciary and the executive, especially when in times of pressure between the two branches. Another part being reformed by the Constitutional Reform Act 2005 is the relocation of the House of Lords.
Some have been in doubt however that these reforms are merely formal by creating a Supreme Court only so that the House of Lords may be physically separate from the legislative body, thus one should also take into account that it is not easy to change a well establish body overnight as it takes time. For instance the Human Rights Act itself took two years to wholly come in to effect after the royal assent or the popular quote the Rome was not built in a day could be applied here.
The matters on regards to the change of the House of Lords to Supreme Court are far from being the only overlaps between the three branches of government. The executive and legislature are seen as a ‘close union, nearly a complete fusion of the executive and legislative and this influence of which Baghot views as the efficient secret of the English constitution. Meanwhile, Lord Halisham suggests that the current electoral process which generally returns a government with a large majority of seats in parliament, contributes to an electoral dictatorship.
It might be argued that this close union is exactly what Montesquieu warned us against as he states: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. ‘ The independence of the judiciary however seems to be deeply rooted in our constitution. It is not easy to dismiss a judge and by convention the executive does not criticise the judiciary.
Some have argued that the constitutional reform jeopardises this independence due to the introduction of appointing commissions which leaves room for political selection rather than selecting judges on merit. Nonetheless, the judicial branch seems to be not only autonomous, it seems to also perform the functions of the other branches as although the judiciary is only supposed to apply the law, ‘every new meaning conferred on a word, every application of a rule to a new situation, whether by way of statutory interpretation or under common law, ‘creates’ new law.
This very function of the judiciary is clearly illustrated by the case of Magor and St. Mellons Rural District Council v Newport Corporation (1965) where Lord Denning’s answer to the accusation of Lord Simond of ‘naked usurpation of the legislative function’ was: ‘The court, having discovered the intention of Parliament and Ministers too, must proceed to fill in the gaps. What the legislature has not written, the court must write. Barnett sees this as a ‘constitutional partnership’ between the legislative and judiciary as when judges make law, Parliament may ‘tactically’ approve by not interfering with it. When Parliament disagrees however, as it did when the House of Lords awarded compensation for the properties lost in Burmatic Oil v Lord Advocate (1965), Parliament overrules the decision – in this case by enacting the War Damage Act 1965. The relationship between the judiciary and the executive seems more controversial in the light of the doctrine of separation of powers.
This relationship may be shown by the inability of the judiciary to punish a Minister of the Crown as demonstrated in M v Home Office , In which an asylum seeker who was refused asylum applied for a judicial review which he failed. Later, he was advised by his lawyer to make another request for a judicial review on different and stronger grounds while his deportation was in half an hour. The only judge present on that afternoon was Garland J. who heard M’s emergency application and asked for M to not be deported until the application could be fully heard; nonetheless M’s flight took off.
M’s lawyers initiated contempt proceedings against the Home Secretary for ignoring the will of the court. This case therefore dealt mainly with whether the courts have any jurisdiction to find a minister of the crown in contempt of the court, which is a criminal offence. Simon Brown J, the judge who heard the case, stated: ‘reluctant though any court must be to proclaim the crown beyond the reach of its ultimate coercive jurisdiction, it is, I believe, difficult to regard this as a black day for the rule of law or for the liberty of the subject.
The court is not abrogating an historic responsibility for the control of executive government. Rather, it is recognising that when it comes to the enforcement of its decisions the relationship between the executive and the judiciary must, in the end, be one of trust. The word Trust! Whatever happened to ‘power tends to corrupt’. However, the ruling was overruled by the House of Lords which concluded, after thirty pages, that while the court has no jurisdiction to find the crown itself in contempt of the court, they have the power to do so for a servant of the crown.
However, in the case of a minister of the crown, a mere finding should suffice as the court has no jurisdiction otherwise. Lord Wolf, who drafted the verdict, states that ‘the crown’s relationship with the courts does not depend on coercion’ hence confirming Simon Brown J’s statement that the relationship between the crown and the court is of mere trust. When evaluating the British constitution it would be unwise to ignore the history by which it came to be. It should firstly be noted hat these constitutional arrangements were established one hundred years before Montesquieu wrote The Spirit of Laws, in a time of tension between Parliament and the Crown. Although Montesquieu was absent, there was no lack of eminent thinkers such as Thomas Hobbes and John Locke. According to WB Gwyn ‘no-one has been able to find an explicit statement of the separation of powers before it was discussed in the writings of seventeenth century Englishmen. Apart from that the Judicial Review plays a huge task in keeping the checks and balance of the executive by the judiciary.
However, the seventeenth century doctrine of the separation of powers was more concerned with accountability rather than preserving liberty. Parliament in those early days was keen to hold ministers of the crown under scrutiny, which is perhaps where the idea of ministerial responsibility comes from. It would therefore be safe to suggest that the separation of powers in the British constitution do not derive from the mixed monarchy theory as that is more concerned with the preservation and stability of the ruler rather than the quality of the government.
Nor are these constitutional arrangements based on Montesquieu’s doctrine of separation of powers, although he popularised the term. Thus the paradigm of the separation of powers in Britain are based on the ‘seventeen century style’ separation of powers, which tries to hold a balance between the crown and parliament and allows for power to be used to check on the other powers rather than a formal and complete separation of the three branches in my view which is currently in place.
Bibliography * Francis D Wormuth, The Origins of Modern Constitutionalism (New York Harpers, 1949) * MJC Ville , Constitutionalism and the Separation of Powers (Indianapolis 1998 2nd Edition) * Montesquieu, The Sprit of Laws , Translated and edited by Anne Cohler, Basia Miller, Harold Stone. (New York: Cambridge University Press, 1989) * Barnett, Hilaire, Constitutional and Administrative Law, 6th Ed( Routledge- Cavendish) * Commentaries on the Laws of England (1765-1769) Cambridge Law Journal Volume * Bagehot, The English Constitution * http://www. goodreads. com/story/show/31602-separation-of-powers * http://www. megaessays. com/viewpaper/47362. html * http://www. law-essays-uk. com/resources/revision-area/administrative-law/cases/separation-powers-doctrine. php ——————————————– [ 1 ]. Francis D Wormuth, The Origins of Modern Constitutionalism (New York Harpers, 1949) 22 [ 2 ].
MJC Ville , Constitutionalism and the Separation of Powers (Indianapolis 1998 2nd Edition) 36 [ 3 ]. Montesquieu, The Sprit of Laws , Translated and edited by Anne Cohler, Basia Miller, Harold Stone. (New York: Cambridge University Press, 1989) [ 4 ]. The Constitution of United States of America, Article II,III [ 5 ]. Barnett, Hilaire, Constitutional and Administrative Law, 6th Ed( Routledge- Cavendish) 105 [ 6 ]. Commentaries on the Laws of England (1765-1769), Volume 1 [ 7 ]. 17-330, Cambridge Law Journal Volume 63, No. 2 [ 8 ]. Bagehot, The English Constitution ,1867 ,67 [ 9 ]. Bagehot, The English Constitution ,1867,68 [ 10 ]. Albert Venn Dicey, John Humprey Carlile Moris, Dicey and Moris on the Conflicts of Laws, 129 [ 11 ]. Barnett, Hilaire, Constitutional and Administrative Law [ 12 ]. Ibid [ 13 ]. Gwyn, W. B,The Meaning of the Separation of Powers ,The Hague: Martinus Nijhoff, (1965),9 [ 14 ]. Sarah Barber , Regicide and Republicanism, Edinburgh University Press, 13-14