Module Name : Constitutional Law

Module Code : LAWS41710

SU Reference No: 21032019

This assignment will elaborate and discuss the doctrine of separation of powers in UK.
Furthermore, discuss queries about the powers exercised by the legislative, executive and
Judiciary. Moreover, this assignment concludes with an analyse on the fusion of powers
betwixt the legislature, the executive, and the judiciary.

Initially, John Locke, a well-known English theorist, categorized powers into three
categories. In “The Second Treatise of Government”, he discussed the difference among three
categories of power: legislative, executive, and federative. 1 The separation of powers can be
defined as an essential doctrine in English Constitutional Law. This concept plays an
important role in constitutionalism. Under the doctrine of separation of powers, power of the
government is split into three distinct categories: legislature, executive, and Judiciary. The
basic objective of the doctrine of separation of powers is to avoid the concentration of state
power, reduce the abuse of power, and oppression through tyranny and safeguard state liberty
by division of state power among the three branches of government. 2 Separation of powers
prevent or restrict one organ from exercising the functions of another organ.

The legislature or the Parliament can be described as the law-making body which comprises
the Monarch, the House of Commons, and the House of Lords. The executive is carries out
the general functions of the government corresponding to the UK unwritten constitution. The
executive formulates and implements policy in the UK. The executive comprises of the
Crown and the Government, comprising the Prime Minister and Cabinet ministers. 3 Prime
Minister is the head of the executive. The judiciary is responsible for applying and
interpreting the laws made by the legislature and thereby gives effect to the intention of the
Parliament. The judiciary delivers judgments on disputes. Even though the legislature is the
sole law-making body, judges can also improve the law by interpreting existing laws, filling
gaps in the law and perhaps by changing the existing law. 4 The judiciary consists of the
judges who hold down judicial office in tribunals and the lay magistrates.

1
Neil Parpworth, Constitutional and Administrative Law (11th edn, Oxford University Press 2020)
2
ibid
3
Richard Benwell and Oonagh Gay, The Separation of Powers
<https://researchbriefings.files.parliament.uk/documents/SN06053/SN06053.pdf> accessed 10 May 2022
4
Nicholas W. Barber, ‘The Separation of Powers and the British Constitution’ 2012 Oxford Legal Research
Paper No. 03/2012
In 1748 Montesquieu in The Spirit of the Laws stated that,
“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 are 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.”5

If the separation of powers is rigorously interpreted, it requires a strict separation between the
three branches of the government without any overlap. Therefore, neither of the three organs
of the state can exercise the power or perform the functions of the other. One person should
not be a member of more than one of the three institutions. However, in the modern world,
the separation of powers can be described as the separate and independent functioning of the
individual institutions to establish a system of checks and balances betwixt the three branches
essential for satisfactory government.

The concept of separation of powers has received less importance in several common law
countries as well as in the UK. The power vested in the Parliament, Government and
Judiciary are strongly connected in the UK. Additionally, the most important institutions and
offices in the UK have developed to get balance among the Crown or the Government and
Parliament.6 This arrangement appears to be a equilibrium of power rather than a formal
separation of institutions. Walter Bagehot called it a “fusion of powers”. Bagehot in The
English Constitution stated that,
“There was a close union and an almost complete fusion of legislative and
executive power.”

Practically, it appears from the analysis of the three powers of the government that those
powers are frequently exercised by the individuals or institutions which exercise more than
one power. The borderlines between the three branches are very narrow and can be easily

5
Separation of Powers <https://www.supremecourt.uk/docs/separation-of-powers-worksheets-for-teachers.pdf>
accessed 7 May 2022
6
Richard Benwell and Oonagh Gay, The Separation of Powers
<https://researchbriefings.files.parliament.uk/documents/SN06053/SN06053.pdf> accessed 10 May 2022
crossed. Every branch of the government is rendered some power over other branches and
their functions are intentionally created to overlap.7

In the UK there is a large overlap among the executive and legislative. The Prime Minister
and the Cabinet Ministers are members of both the legislature and the executive. Being
members of the executive, Cabinet Ministers simultaneously exercise the legislative power in
the Parliament, and they also make delegated legislations. However, Section 2 of the House
of Commons Disqualification Act 1975 imposes a limitation. According to this section, only
95 Ministers are authorized to vote in the House of Commons at any one time. Furthermore,
the Prime Minister can instruct the Monarch to diffuse the Parliament. Conversely, in the
event of an emergency, the Monarch may diffuse or refuse to diffuse Parliament. Another
overlap between the executive and the legislature is that individual ministers are accountable
to the Parliament. In other words, the House of Lords is a partial check over the executive.

In addition to the judicial function, the judiciary performs a legislative function to a limited
extent when they interpret laws and develop common law legal principles. However, in the
UK judiciary power is the feeblest of the three powers of the government. Judicial power can
be suppressed by the Parliament as it is recognized that the Parliament is legislatively
supreme. In other words, legislature is more powerful. Therefore, the UK Judiciary cannot
go beyond the legislature. In the case of Burmah Oil Company v Lord Advocate [1965]
AC 75 it was discussed that the statutes prevail over the common law. The Human Rights
Act 1998 attempts to provide an equilibrium among the three organs of the state by
necessitating the courts to scrutinise acts of these three branches in view of key provisions of
the European Convention on Human Rights. Nevertheless, these Convention rights can be
overridden by the UK Parliament with the use of very comprehensible language. The House
of Lords held that Hansard’s reports could be used by the courts when the language of a
statute is ambiguous.

There are several more instances of overlap among the three branches of government. Since
Parliament is responsible for regulating its intramural affairs, it performs a legislative
function and to a lesser extent a judicial function. Cabinet Ministers perform a judicial
function when they decide appeals related to disputes such as town and country planning
7
Nicholas W. Barber, ‘The Separation of Powers and the British Constitution’ 2012 Oxford Legal Research
Paper No. 03/2012
legislation. Magistrates exercise executive and judicial functions when they grant licences.
Furthermore, the Queen plays an executive role when making judicial appointments on the
recommendation of the Lord Chancellor. In the case of lay magistrate and certain other junior
judges by Lord Chancellor straight away.8

Prior to the enactment of the Constitutional Reform Act 2005 the Lord Chancellor had a
unique position in the UK. He was a member of all three branches of the state and exercised
the relevant powers of all three branches. Lord Chancellor was chief of the judiciary and
responsible for the appointment of judges. He also sat as a judge of the Supreme Court. In
this way Lord Chancellor performed his judicial function. The Lord Chancellor, as a member
of the executive sat in Cabinet. He was a member of the legislature and functioned as speaker
of the House of Lords.

After enactment of Constitutional Reform Act 2005, the judiciary underwent several reforms
which further enhanced the doctrine of separation of powers in the UK. Therefore, after the
2005 reform currently the Lord Chancellor is not a member of the judiciary and could not sit
as a judge of the Supreme Court. Additionally, the Lord Chancellor has halted to be head of
the judiciary. This role is now carried out by the Lord Chief Justice, the President of the
Courts of England and Wales. Furthermore, the automatic connection betwixt the Lord
Chancellor and the speakership of the House of Lords was broken. He could be the speaker,
but it is no longer automatic. Under the 2005 Act, a separate post called 'Lord Speaker' was
created.9 The role of Lord Chancellor is now amalgamated with that of the Secretary of State
for Justice.10 The Lord Chancellor now appoints lay magistrates and certain other junior
judges and make recommendation to the Queen on the appointment of judges upon
recommendation received from the Commission of Judicial Appointments. An important part
of the role of the Lord Chancellor is to guarantee the judicial independence. As per the
section 3 of the Constitutional Reform Act 2005, the Lord Chancellor and other Ministers are
responsible for maintaining the judicial independence and must not seek to the impact of
particular judicial decisions through any special access to the judiciary.11

8
Neil Parpworth, Constitutional and Administrative Law (11th edn, Oxford University Press 2020)
9
ibid
10
Separation of Powers <https://www.supremecourt.uk/docs/separation-of-powers-worksheets-for-teachers.pdf>
accessed 7 May 2022
11
Neil Parpworth, Constitutional and Administrative Law (11th edn, Oxford University Press 2020)
Until recently, the House of Lords was the superior court in the UK. However, Constitutional
Reform Act 2005 established a Supreme Court of the UK. This reform has also assisted to
strengthen the separation of powers in UK. This reform can be defined as a functional
separation together with a physical separation. Now, the Supreme Court has been established
in a separate building in London. The formation of a Supreme Court has strong separation of
powers consequences. Because until then, the chief judges known as Law Lords sat in the
legislative chamber of the House of Lords together with the other Lords who are not Law
Lords. And therefore, Law Lords were able to perform legislative function as well as judicial
function. However, with the 2005 reform, the judges of the Supreme Court only do judicial
work and they are no longer eligible to sit and vote in the House of Lords. It shows, even
though these new Judges are given a courtesy title of Lord or Lady, they are not easily
influenced by politics, cannot engaged in law-making process, and do not have a peerage.
This enhances separation of powers.12

Section 61 of the Constitutional Reform Act 2005 introduced an independent Judicial

Appointments Commission. It selects candidates to be recommended to the Lord Chancellor
for judicial appointment process. This minimize the governmental influence over judicial
appointments and thereby enhances the doctrine of separation of powers.

In the current state administration, executive decision-making has increased tremendously. It

is therefore important to ensure checks on the exercise of executive discretion as well.
Therefore, one can do this through a claim for a judicial review. Consequently, the court may
declare that the actions of the executive are lawful or not. All the reforms discussed above are
essential to maintain the independence of the judiciary and to keep the judiciary separate
from the other two branches of government.

In Conclusion, the pure version of the separation of powers can only be found in some of the
older literature. Partial version of the separation of powers can be find in practice with
emphasises on checks and balances. In modern world, most countries do not have strict
separation of powers but choose a consensus that divides certain functions between the three
12
Separation of Powers <https://www.supremecourt.uk/docs/separation-of-powers-worksheets-for-teachers.pdf>
accessed 7 May 2022
branches of the government. Nevertheless, the basic concept expressed by Montesquieu in
separation of powers can be found in many democratic states. In the same way, a separation
of powers in the purest sense is not, and never has been an aspect of the UK constitution.

The Constitutional Reform Act 2005 move towards considerable separation, and more
independence of the Judiciary. The establishment of the independent Supreme Court and
reduction of the multifarious functions of Lord Chancellor helped to minimise the harshness
of the fusion of powers. However, even after the Constitutional Reform Act 2005, there could
be no absolute separation of powers in the UK Constitution as there are instances of overlap
between the three powers of the government.
 Bibliography

Primary Sources
UK Cases
1. Burmah Oil Company v Lord Advocate [1965] AC 75

UK Primary Legislation
1. Constitutional Reform Act 2005

Secondary Sources
Books
1. Neil Parpworth, Constitutional and Administrative Law (11th edn, Oxford University
Press 2020)

Reports
1. Nicholas W. Barber, ‘The Separation of Powers and the British Constitution’ 2012
Oxford Legal Research Paper No. 03/2012

Online article
1. Richard Benwell and Oonagh Gay, The Separation of Powers
<https://researchbriefings.files.parliament.uk/documents/SN06053/SN06053.pdf>
accessed 10 May 2022

2. Separation of Powers <https://www.supremecourt.uk/docs/separation-of-powers-

worksheets-for-teachers.pdf> accessed 7 May 2022