Has the separation of powers been strengthened within the British Constitution in recent years?
“…the description of British government as an elective dictatorship is no longer appropriate.” (V. Bogdanor The New British Constitution (2009) Oxford, Hart).
Discuss, considering in particular Bogdanor’s argument that the separation of powers has been strengthened within the British Constitution in recent years.
Britain is described as not having a written constitution, instead it is simply: ‘a set of inductive generalisations’ which have resulted in Britain not having a formal separation of powers. Due to this lack of structure, the power within the constitution can become concentrated to a single group. Consequently an Act which would be held as undemocratic in places where there is a written constitution e.g. the United States, will not be in Britain.
This essay aims to analyse the doctrine of the separation of powers, focusing on how the principle operates in the British Constitution where the separation between the branches of government is not strictly adhered to. It will examine how this entwining relationship has led to Britain living in an elective dictatorship opposed to the democracy it is advertised to be. Additionally, it will consider how the recent developments of the constitution, including the introduction of the Constitutional Reform Act 2005, has led to the separation of powers being strengthened therefore the democracy of Britain increasing.
The separation of powers ‘is one of these principles that is found, in one form or another, in most modern constitutions’. It is a feature predominantly in constitutions which operate a system of government that is based on the law.
The importance of the doctrine is significant because it underpins the way the power is used within a state. Nowadays, it has been recognised as having a crucial role in the constitution; ‘it remains important to distinguish… the primary functions of law-making, law-executing and law-adjudicating. If these distinctions are abandoned, the concept of law itself can scarcely survive’. Poor division of power between the different ‘organs’ would mean it is impossible to prevent abuse therefore a dictatorship could arise.
The principle suggests that the correct way to separate the power is to divide it equally into three separate organs, each with independent roles from each other. If each of these branches perform a different function then the constitution will run efficiently. The branches today are known as; the legislative- who create law; the executive- responsible for the day to day running of the constitution; the judiciary- they apply the laws. This means if these divisions are adhered to then the constitution will successfully run as an organised democracy.
The Greek Philosopher, Aristotle, was the first to classify the government as being split into three elements; ‘The three are, first, the deliberative, which discusses everything of common importance; second the officials… and third, the judicial element’. These distinctions are based purely on ‘a political entity’whereas today’s understanding of the principle focuses more on different branches of the government. Today’s theory comes from the French Constitutional Theorist Montesquieu who popularised the doctrine in his book, the Spirit of the Law. He breaks down the institutions as ‘legislatures, executives and judges who exercise certain specific functions — making laws, executing laws and adjudicating disputes about laws’.
These branches can be translated to the British Constitution. The Legislative branch is made up of Parliament whose function is to pass legislation which regulates the citizens and to scrutinise the work of the executive in order to ensure that they are not abusing their powers. Britain has a ‘bicameral legislative’ branch which means that it is composed of two chambers; the House of Lords and the House of Commons. The members of the House of Commons are elected by the British public and the party with the most seats form the government. This means that it is a fairly elected democracy.
In Britain the role of the executive is to formulate and implement policies. It is led by the Prime Minister who is responsible for the overall conduct of the government and the ministers who are the head of each department.
The role of the judiciary is to interpret the legislation and apply the law in accordance with how Parliament intended it when they created it. The judicial branch covers all judges however, it is those which sit in the higher courts who are most important to the operation of the British Constitution because they are in a position to challenge the government and ensure that it functions with the law.
It has been argued that in Britain, the result of not having a codified constitution is that there is no consequences in place if one branch exceed the limit of power they have according to the separation of powers theory. The principle came under significant criticism around the 1980’s. One of the main criticisms was by Brazier who stated that the arrangement of the British Constitution is: ‘at best a weak separation of powers… at worst a separation in name only”.
Locke, an English Philosopher was concerned with the division of power and the consequence if the separation was not equal. Concentration of power can seriously affect the organisation and functioning of the constitution. He believes that: ‘it may be too create a temptation to humane frailty apt to grasp for Power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make’  This means if there is too much power concentrated to one person, or to one branch of the government, it would lead to the system as a whole being corrupt. It would provide people with the opportunity to use the system to their own advantage, essentially creating laws others do not agree with thus creating a dictatorship.
The idea that too much power can result in one group using it to their advantage can be seen within the British Constitution, where there is many overlaps between the branches. This led to Lord Hailsham describing the structure of this constitution as an ‘elective dictatorship’ because although the government is elected by the public, they abuse the amount of power they have been given and use this to their own advantages- they act like dictators.
In theory it appears that the roles of each branch are clearly distinguished however, this is not the case in practice. However, Montesquieu also recognises that the division of power between the organs of the state is not always amicable, there can be overlap between the branches and it still be a democracy. This idea there is overlap in the British Constitution can be supported by Parpsworth who claims: ‘a separation of powers is not, and has never been a feature of the UK constitution. An examination of the three powers reveals that in practice they are often exercised by persons which exercise more than one such power.”
This idea can be seen by the role of the Lord Chancellor who had a position within each of the three government branches. He had a legislative function of being the speaker of the House of Lords, an executive function of being a member of the cabinet and a judicial function as being the head of the judiciary. Being the head judge gave the Lord Chancellor the right to participate in judicial proceedings and to appoint judges. This shows that there is more than an overlap between the branches instead it shows that the same person clearly does ‘exercise more than one power’. regardless of Montesquieu stating: ‘all would be lost if the same man… exercised these three powers‘. Evidently this suggests that Britain is an ‘elective dictatorship’ because there is no restriction on the amount of power that each branch can administrate within society, they can influence the functioning of the constitution without regard to the view of the public. The Lord Chancellor was in a strong position to abuse his powers; he could provide himself with more benefits or use the arrangement to influence the branches and allow one organ to dominate the whole constitution. Clearly, his position within all three arms of the government does not conserve the doctrine of the Separation of Powers.
However, it could be argued that even though there is clear overlap between the roles, the question of abusing power was irrelevant as the Lord Chancellor optionally chose to remain impartial to each branch when undertaking the particular function it required; ‘in recent years, the Lord Chancellor had rarely sat as a judge… and never on matters affecting the government’. This suggests that the British Constitution was never operating in a way which could be described as an ‘elective dictatorship‘, instead it has always been ‘an independent system’. However, there are exceptions to this; ‘Lord Mackay, however, did sit in the leading case Pepper v Hart,  AC 593, on which he offered a dissenting judgement’ which shows that there are exceptions and the lines between the branches have been overstepped.
Regardless of this only being an exception there was a clear overlap in the way the functions of the branches were being performed so the Labour Party, the current government at the time, introduced the Constitutional Reform Act 2005 which led to dramatic reforms, specifically regarding the position of the Lord Chancellor. His position at the head of the judiciary has now been replaced by Lord Chief Justice who is now ‘in charge of the deployment of judges and allocation of work in Courts in England.’ Additionally, his legislative function as the speaker of the House of Lords has been replaced by the Lord Speaker. This means that since the reform, his function is now purely in the executive branch of the government where he remains to be a member of the cabinet.
Evidently, the Constitutional Reform Act 2005 has strengthened the doctrine of the separation of powers in Britain as the overlaps between the arms have been reduced thus the power distribution has been equalised. However, not everybody agrees that the reforms towards the Lord Chancellor has increased the democracy in Britain. His role was described as ‘a necessary evil… vital to ensuring the smooth running of the separate estates.’  This criticism suggests that the Labour Government removed the connection between the branches which may reduce the effectiveness of the organisation of each function. However, the reform was essential because if ‘these distinctions are abandoned, the concept of law itself can scarcely survive’.
Another problem with the separation of powers in the British Constitution is the overlap between the legislative and executive. Theoretically, the executive initiate the creation of new laws and it is for the legislatures to debate and pass the proposals once the content has been agreed upon. This means that the legislative is supposed to have control over the executive however, in practice it is clear that ‘the Executive tends to dominate the legislature, because the party and electoral systems usually produce a strong majority government, what Lord Hailsham called an ‘elective dictatorship”. This means that ‘the executive is therefore present at the heart of Parliament’.
Being at the centre of the government structure allows the executive to have strong persuasion over the legislatures, meaning they can get the result they wish without the House of Commons standing in their way. This supports Bagehot’s description of the British Constitution being; ‘the close union, the nearly complete fusion of the legislative and executive powers’ as it appears that they operate as one branch; the executive.
This intertwining relationship can be seen as ‘there is a strong convention that ministers are members of one or other House of Parliament‘ as well as the Prime Minister being a member too. As a result they will have strong influential powers over the decisions of both the executive and the legislative. This is because the ministers will be less likely to challenge the decisions of their party therefore their activities will not be questioned so they will be able to initiate any changes they wish. This means they are able to operate an elective dictatorship without checks to the amount of power they are using.
However, it could be argued that the separation of powers still exists because there are procedures in place to ensure the doctrine remains a strength of the British Constitution. For example, there is a limit on the number of ministers who can be members of the House of Commons. This will ensure that the amount of influence they have is limited. Additionally, there is the opportunity for a backbench revolt. This is where a large number of MP’s who are not ministers or in cabinet for the leader, vote against them to try prevent them from carrying out their propositions. One example is from 2001 where; ‘more than 100 Labour backbenchers rebel over the attempted removal of two Labour MPs from the chairmanship of important parliamentary committees.’ which led to the reinstatement of two Transport and Foreign Affairs Select Committees. This suggests that although the executive try and overstep their powers by going against the opinions of the public which could effectively mean Britain is a dictatorship, there are checks and processes in place for their decisions to be effectively challenged.
Members of cabinet can, and have, also taken stands against their own parties.
A recent example of this can be seen by Tony Blair who proceeded with the Iraq War despite the majority of his cabinet disagreeing with his actions and a further two resigning. This example shows that the government are not persuaded by the actions of their cabinet or backbench revolts.
This shows the need for checks to prevent the abuse of power is essential. The legislature has the duty to ensure that the executive do not overstep this limit ensuring that control is maintained, reducing the chance of an elective dictatorship. These checks mean that Bogdanors suggestion that we are less of an elective dictatorship is correct; the rules ensure that nobody gains too much control.
In conclusion, the doctrine of the separation of powers ‘is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have their distinct and largely exclusive domain.’ Before the Constitutional Reform Act 2005, the power was not constrained to the three separate organs. Instead the distinctions were not clear therefore the power was subject to being abused and concentrated to different branches. The reforms led to a redistribution of power in the British Constitution which has effectively led to a decrease of living in an elective dictatorship, just as Bogdanor suggests.
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