Montesquieu and L´Esprit des lois
The idea of seperated powers has an old background. Philosophers as Aristoteles and John Locke have already been debating about this theme. Locke stated that there is the need of a principle concerned with the efficiency of government and avoidance of tyranny. This last point was also established by the French aristocrat Montesquieu, who wrote in his book L´Esprit des lois (The Spirit of the Laws) in 1748:
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… were to exercise those three powers.
In the view of Montesquieu the ideal would be a constitution, where the three branches of government – namely the legislative, the executive and the judicial – correspond with the three functions.
Functions of the executive, legislature and judiciary in the United Kingdom
the function of the legislature – which is in the UK consisting of the parliament, comprising the Crown and the House of Lords as well as the House of Commons – is to pass legislation. The executive – the Crown and the Government, including the Prime Minister and the Cabinet ministers – has to govern. That means to make policiy decisions and to enact the legislation made by the legislature. Finally the Judiciary has to interpret and rule upon legal disputes.
There are different forms of separation of powers to be distinguished – the pure (consisting of the personell and the institutional form) and the partial one. The pure form of separation of powers asks for absolute independence. Thereby no branch has power over another and nobody can be a member of more than one branch. This requires, in the institutional view, that the three functions have to be exercised by different institutions. Executive functions, for example, should alone be carried out by the government and for judicial functions the responsibility should lie only on the courts. Consequently the personell form means that no person can exercise more than one of the functions. It is obvious that the UK does not fit into this description. The alternative form is a partial one which considers also some overlapping of powers. Its aim is not mainly to seperate the different functions but to ensure that there are `checks and balances` in a constitution. This is to control a possibly overconcentration of power in one branch. Reasons for the separation of powers But why exactly is it important to have a separation between the different powers? A very important aspect, seen and supported by many during the centuries, is the protection of liberty, justified by the presumption that if there is too much power of one sort in the hands of one institution or person, the risk of an abuse of that power increases. After Montesquieu in 1748, this theory is discussed by Professor Eric Barendt in his essay ´Separation of powers and constitutional government´ (1995). Barendt points out that there are not only positive voices about a separation. The principal criticism was made by Sir Ivor Jennings who held that „there are no material differences between the three functions, so the separation principle fails to explain why certain tasks should be given to one body rather than to another.“ Jennings therefore argues that there are no substantial differences between the decisions of the judiciary and the administrative. The only differences are formal or procedural ones. He admitted that the „legislative function may be identified as that of making ´general rules of law´, but it did not much matter that in practice in the UK […] ministers issue a lot of general rules under delegated legislative authority.“ Jennings concluded that there could only be tyranny if the executive made them without any legislative authority at all. So his outcome is that „the separation principle was irrelevant as a safeguard against bureaucracy or tyranny; what prevented that was democratic control through the House of Commons and the party system.“ Barendt then also mentions G. Marshall who declares that it would be impossible to define the exact functions of a government and to determine to whom they should be distributed. Furthermore he specifies on the UK where – in his mind – the judicial and the executive branch cannot be clearly independent even if this would be important. Marshall therefore comes to the conclusion that this doctrine is far to imprecise and incoherent to form the basis in the analysis or critique of a constitution. After the setting out of some criticism, Barendt then starts to defend the doctrine by stating that in his view it can be possible to define the three functions which „are allocated by a constitution to particular bodies or institutions.“ This distribution is enforceable by the courts, which are also entitled to take the final decision in practice of whether the function is legislative, executive or judicial.
A second important point for him – also as a reply to the critique of Jennings and Marshall – is that the „seperation of powers is not in essence concerned with the allocation of functions as such. Its primary purpose […] is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power.“ In his mind it does not matter „whether powers are always allocated precisely to the most appropriate institution“. Nevertheless it is important to allocate these functions in a sensitive way to secure a competent government. Otherwise this would lead to the contrary of John Locke´s argument of an efficient government.
Another supporter of the doctrine is N.W. Barber. He just disagrees about the argument of the protection of liberty. Barber claims that the core of the principle of separation of powers is the efficiency. He states that a pure separation of the powers would be impractical and that the overlapping of some functions can be really helpful to provide this efficiency. A third argument in favour of the doctrine is given by Madison, wo says the the pinciple of separation of powers can be seen as a help for the courts to protect the individual rights and also „to prevent on branch from accumulating excessive powers“. Separation of power between the Crown and Parliament The outcome of the discussion so far can be transferred to different countries. But in the UK also another separation has to be mentioned – namely the separation of the Parliament and the Crown. Professor Tomkins has brought a thesis named ´Crown versus Parliament´. He argues that the tripartite division „does not reflect the historical development of the English constitution“. The model developed by Montesquieu does not really fit for England. In relation to this he prefers the phrase „power“ instead of „powers“. Tomkins explains that „ it is not so much that discrete functions of powers are allocated to separate bodies, but that constitutional authority – power – is divided between the Crown and the Parliament. Here the historical background of England has to be seen. After the British Civil War in the 17th century and the death of King Charles I the Crown lost a lot of its primary power and as a result the power of the Parliament increased a lot. In this context, Tomkins asks the question: „in what sense may it be argued that contemporary English public law is based on the separation derived from England´s political history?“ Trying to give an answer to that question he argues: „The separation of power English-style, it will be argued, is and remains a confrontational, bi-partisan, bi-polar separation, between the only two powers the constitution has ever recognised as enjoying any degree of sovereign authority, namely the Crown, and Parliament. Every constitutional actor falls on one side or the other of this great divide, in that all constitutional actors ultimately draw their power from either the Crown or from Parliament.“ Tomkins then presents some examples for his thesis. He points out the necessary royal assent for establishing an Act of Parliament by saying an act is „the legal moment when the two sovereign authorities of England come together and agree: Parliament on the one hand, and the Crown on the other.“ The argument that every Act of Parliament requires royal assent, can be withdrawn as this is set by constitutional convention and thus mandatory. Secondly he discusses the accountability of ministers (= ministers of the Crown) to the Parliament by claiming that they are advisers of the monarch and their oath of allegiance is also to the Crown. Furthermore ministers possibly exercise royal prerogative power on behalf of the Crown. This means that in order for them to be accountable to Parliament „the English version of the separation of powers requires that ministers simultaneously be parlamentarians“. Coming to the status of the courts, Tomkin says that „the courts are in some sense part of, or dependent upon, the Crown, and are not independent of it“ and „that the judiciary derives its constitutional power ultimately from that of the Crown“. He states that, although there are practical restraints on ministers of the Crown interfering with the judiciary, there can still strong formal and symbolic ties be seen.
The judicial approach to the separation of powers
There is a range of judicial decisions showing how deeply ingrained the concept of the separation of powers especially in the judiciary is and how different judges set out their understanding of the separation of powers. Herefore the case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 531, 567 has to be mentioned. In this case the defendant refused to bring into force provisions in an Act of Parliament to pay compensation to fire fighters. He did not enact them through the system given by the act but used his own, less generous, system. Thereby he repealed an Act of Parliament. By a three-two majority it was found that the defendant had acted ultra vires because only Parliament is able to repeal its own acts. So the court separated between the executive and the legislative branches. Lord Mustill, who was in the minority, highlighted the tripartite approach by saying: „It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.“ In Duport Steels Ltd v Sirs [1980] 1 All ER 529 Lord Diplock stated: „ At a time when more and more cases involve the application of legislation which gives effect to the policies that are the subject of bitter public and parlamentary controversy, 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 interpret them.“ To display a more recent case also Baron Mereworth v Ministry of Justice [2011] EWHC 1589 can be cited. In this case Lewison J stated that „the separation of powers, although not quite in the pure form that Montesquieu imagined, has always been part of our constitution.“ Interactions between Parliament, the government and the judiciary To specify the interactions between the different branches it is necessary to look at the consitutional rules contained in conventions, practices and of course the legislation. When considering the interactions between Parliament and the judiciary the question whether Members of Parliament can also serve as judges arises? The answer is written down in Schedule 1 of the House of Commons Disqualification Acr 1975 and s.137 oft the Constitutional Reform Act 2005. There is stated that full-time members of the judiciary can not serve as MPs or peers. Of course it is also not possible for MPs and peers to act as full-time judges. However they can serve as part-time judges or lay magistrates in England and Wales. To ensure their independence the judges of the higher courts have a life tenure and they (the judges of the High Court) can just be removed out of office if a resolution by both Houses is given. As a result of this they are „protected by immunity from any legal action in relation to their judicial functions and absolute privilege in relation to court proceedings. Are judges then able to participate in the legislative process? Until 2009 most of the senior judges could sit in the House of Lords and vote for new legislation. In practice they rarely did that. The reason is illustrated in Jackson v Attorney General [2005] UKHL 56. In this case the Law Lords Scott of Foscote and Hoffmann could not act as judges as they primarily have voted in favour of the Bill. If they would have taken part in the decision it would have led to a breach of the right to a fair trial (Art. 6 ECHR). Professor Bogdanor argued that „the Human Rights Act necessitated a comprise between two doctrines – the sovereignty of Parliament and the rule of law – and that the comprise ´depends upon a sense of restraint on the part of both the judges and of Parliament´.“ In the view of the European Court of Human Rights a accumulation of functions can endanger the impartiality of judges.
There is also a second complication lying in the incorporation of European Community law into the domestic law of the UK. In the case of R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1990] 2 AC 85 Lord Bridge interpreted the European Communities Act 1972 „to mean that UK statute would not apply where it conflicted with European law, a significant departure from the principle of Parlamentary sovereignty.“ He furthermore points out that „ under section 4 of the Human Rights Act 1998, a court can declare a statute to be incompatible with the European Convention on Human Rights and the Government is then obliged by the Convention to rectify the inconsistency.“ A principle, important to be considered, is the Parliamentary privilege. It is summarised by Article 9 of the Bill of Rights 1689: „That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament“. The Master of the Rolls, Lord Neuberger, considers it as „an absoulte privilege and […] of the highest constitutional importance“. This means also that no court order can restrict or even prohibit any parliamentary debate or proceedings. Opposite to that stands the sub judice rule, which sets that the MPs must not discuss pending cases in Parliament. In the House of Commons Standing Order 42A is declared: „The speaker, or the chairman, may direct any Member who breaches the terms of the sub judice resolution of the House to resume his seat.“ Also the interactions between the government and the judiciary have to be considered. Traditionally there was an overlap between the government and the judiciary in the person of the Lord Chancellor. He was the head of the judiciary as well as a member of the Cabinet and Speaker of the House of Lords. In the Constitutional Reform Act 2005 the judicial functions were removed from him and he was replaced by the Lord Chief Justice. Also the Speaker of the House of Lords was from then on elected. However he is now still a member of the Cabinet. Finally the role of the government in Parliament can be considered as closer. In the UK as a common law jurisdiction the executive is also present in the Parliament. The Prime Ministers and many of his ministers are Members of the Parliament and sit in the House of Commons. This is to provide efficiency and stability in the government´s operations. It is described as „a system that intentionally promotes efficiency over abstract concerns about tyranny.“ Compared to presidential systems, like in the USA, the executive in the UK hast much more freedom of action as a president in a presidential system of government. Another point is the ability of Parliament to delegate law-making powers to the government. This again shows that these two powers are not quite separate.