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Separation of powers: the reality
It is widely accepted that for a political system to be
stable, the
holders of power need to be balanced off against each other.
One of the reasons widely cited is that it leads to a
more just and humane system of
government. This need not invariably be the case but, as Lord Acton
said: ``Power tends to corrupt and absolute power corrupts
absolutely''. By maintaining a balance between political forces,
power is prevented from being concentrated in the hands of people
who would be tempted to abuse it. But, in fact, we see this separation
of powers not only in just and humane societies, but in
oppressive ones as well. Its real, practical benefit is the
stability it engenders. While a stable system may be oppressive
and unpredictable, experience has shown that it is far less
likely to exhibit these characteristics than an unstable one.
Although not famed for his views on constitutional law,
Terry Pratchett summed up the driving force behind the
separation of powers
very succinctly in one of his novels. ``People say they
want freedom and equality'', one of his characters opines,
``but what they really want is for tomorrow to be the
same as today''. In other words, what society needs is
continuity and predictability in government.
The concept of separation of powers is not a new one, nor is
it confined in its operation to modern democracies. Even the
notion that the most effecient separation is into three distinct
bodies, rather than some other number, is an ancient one. The Greek
philosopher Aristotle wrote that the fairest political system
would be one in which power was shared between the
monarchy, the aristocracy, and the common people. In the 17th
century, John Locke put forward a more modern proposition: that
government should be divided between an executive and a legislature.
The role of the executive would be to implement law and administer
the country, while the legislature would create
and manage the law itself. The problem with Locke's system is that
there is nothing to prevent one arm of the government
overwhelming the other. Our modern notions of separation of powers
are, in fact, mostly derived from the writings of 18th century French
political theorist, Charles de Montesquieu. Ironically, his
concepts of an ideal political system were drawn, at least in part,
from his observations of England. In reality, the separation of
powers he describes has never been implemented fully in England or,
quite likely, anywhere else. However, at the time of Montesquieu
England had just had a civil war, and deposed a despotic monarch
in favour of a representative democracy and courts with constituted
and well-defined powers. In France, in contrast, Monarchs still
enjoyed more or less unlimited power. In his book The Spirit
of the Law Montesquieu describes a system where power is
balanced between an executive, a legislature, and a judiciary.
The balance is a complex one. In Montesquieu's thinking,
the judiciary regulates
the way in which the executive applies the law, which is created by
the legislature. The judiciary would be limited
by the legislature, as only the legislature would be empowered
to create new law.
The legislature could create law, but had no direct powers to apply
it. In the UK, the role of the executive is largely assigned to
the ministers of the Government, and perhaps to the civil service
and the police. Parliament as a whole forms the legislature, while
the role of the judiciary is taken by the courts, and perhaps to
a certain extent by tribunals.
Montesquieu's theories had a lot of influence,
in particular in the nascent USA. His model of separation of powers is
still the one against which others are judged.
However, although his
model was said to be based on the English constitution, closer
inspection reveals that there are serious discrepancies between
Montesquieu's theory and political reality in the UK.
Perhaps the most striking anomaly is the dominance of the legislature
by the executive. By long-standing tradition, the Government (executive)
is formed
by the leader of whichever party in the Commons can command a
majority. As a result, the executive is able to exert considerable
pressure over the legislature. This situation has been worsened by the
rise of the party system in Parliament. While the Government is
numerically only a small proportion of the total number of MPs, party loyalties
encourage members of the Government's party to back it, even when
their consciences and their constituents prefer otherwise.
So, although legislation is the responsibility of Parliament, in
reality the legislative programme is driven by the Government of
the day. This, in itself, is not objectionable, so long as there is
proper scrutiny and control of the Government's legislative programme
by the legislature. When the Government's party has a large majority in
the Commons, as is the case at present, there is almost no
opportunity for Parliament to regulate the passage of legislation.
If the involvement of Parliament in the production of primary
legislation has been truncated, it's involvement in secondary
legislation is now almost non-existent. In practice, the
exigencies of administration dictate that a certain amount of
delegated legislation is required, simply because the time pressure
on Parliament is so great. However, some delegated powers are
extensive. Of particular concern are the so-called `skeleton Acts',
which contain no substantive law, but merely a set of powers to be
exercised by ministers. There are also worrisome `Henry VIII' clauses
in some Acts, that grant powers to ministers to modify primary
legislation. While these powers may improve the efficiency of
the Parliametary process, they strengthen the executive at the
expense of the legislature.
This situation results from the fact that in the UK, although
formally the purpose of general elections is to elect Parliamentary
representatives, the party system means that in fact we are electing
the Government. In some countries, elections are held separately for
the legislature and the executive; in the UK, these roles are
essentially fused.
The situation isn't entirely hopeless. It is not a forgone conclusion
that the Government will be able to introduce the legislation
it desires in the form that it wishes. Governments are sometimes
defeated by their own back-benchers, or by the House of Lords.
However, where the Government really wants to introduce a fundamental
piece of legislation, it can make it an issue of confidence.
The threat that the Government may have to resign, and thus bring
about a dissolution of Parliament, is usually enough to get even
the most recalcitrant back-bencher to toe the line.
There are further problems with the separation of powers between
the executive and the judiciary, although these are less troublesome
in practice than they have the potential to be. Surprisingly, the
appointment of the judiciary is entirely in the hands of the
executive. The head of the judiciary, the Lord Chancellor, is
a Cabinet minister selected by the Prime Minister. The Lord
Chancellor either appoints, or advises on the appointment of,
all other judges (notionally the sovereign is responsible for
the appointment of judges, but in practice this is a formality).
However, senior judges, once appointed, cannot be removed from
office at the whim of the executive - unlike the Lord Chancellor
himself - so there is a measure of independence after appointment.
Nevertheless, the current Lord Chancellor has attracted criticism
for what has been seen as an attempt to `politicise' the judiciary,
by inviting senior lawyers (potential candidates for judicial office)
to contribute to party fund-raising activities.
In fact, the office
of Lord Chancellor is itself an anomolous one, involving elements of
judicial, executive, and legislative responsibility. There have
been calls for the Lord Chancellor to remove his office from direct
involvement in the selection of judges. Recently an independent
appointments commission was set up to scrutinise the selection
process, although it does not have any direct influence. The recent
creation of a Select Committee on the Lord Chancellor's Department has
opened up the Lord Chancellor's role to a higher level of
Parliamentary scrutiny, and the current Lord Chancellor has let it
be known that reform of his role is not entirely ruled out. So we
may see changes here in the future.
The judiciary can, and does, hold the activities of the executive
up to scrutiny, often by the process of judicial review.
It is now accepted that, where an Act of Parliament gives a minister
or other administrator discretion, that discretion must be
exercised according to law, rationally, and in accordance with the
principles of natural justice. The passage of the Human Rights Act
has further strengthened the position of the judiciary. It provides
the opportunity to quash an administrative action on human rights
grounds, and may have
added a test of `proportionality' to the grounds for judicial review
(see, for example, R(Daly) v Secretary of State for the Home
Department (2001)). Often the involvement of the courts in
the activities of ministers is seen as a hindrance by the Government.
Occasionally legislation attempts to oust the jurisdiction of
the courts to review the exercise of ministerial discretion.
Even where this ousting is strongly worded and uncompromising,
the courts have often been ingenious in finding ways to
circumvent it (see, for example, Ansiminic v Foreign Compensation
Commission (1969)).
And so we come on to the separation of powers between the judiciary
and Parliament. In reality we have more of a sharing of powers than
a separation. Montesquieu believed that judges should not be
legislators, but there is now little doubt that in our common-law
system the judges do have a legislative role. The judges themselves
are not keen to acknowledge this, and often go to some lengths
to disguise it. However, while there are certain influential judges
who openly and firmly refute the idea that judges create law,
increasingly the senior judiciary are coming clean about it.
The fact that judges may have what is essentially a legislative
role is discomforting, since we have grown used to the idea that
the legislature is a body of our elected representatives, for all its
faults. The judges are not only not elected, coming from a narrow
social and political band they are not even representative.
Despite the overlap between the judiciary and Parliament in
legislation, the order of precedence is clear. Since the 17th
century the courts have deferred to the authority of Parliament.
It is generally accepted that the courts are not empowered to
rule on the validity of Acts of Parliament.
Interestingly, the balance of power may have shifted somewhat with
our increased obligations to Europe. In the Factortame
sage (1990-present), we saw that the courts could disapply
even primary legislation where it was in conflict with our treaty
obligations to Europe as defined by the European
Communities Act (1972). Similarly, the Human Rights Act has given
courts the power to issue a declaration that primary legislation
is incompatible with the European Convention on Human Rights.
So, we can see that there are tensions between the goals, motives,
and procedures of the executive, legislature, and judicial arms of
government, and
this is all to the good. Separation of powers requires that these
bodies remain in a state of dynamic interplay, with no one body being
able to dominate the others. At the same time, there are places where
the powers that Monstesquieu thought should be separated are, in
fact, fused. All three of the the arms of government exercise
functions that in a strict separation of powers should really reside
elsewhere. The executive exercises legislative powers by dominating
Parliament. It exercises judicial responsibilities whenever an
administrator
exercisises discretion to decide in favour of, say, one planning
application rather than another. The judiciary creates law,
albeit subtly, and with circumspection. Parliament is able to
discipline and hold to account its members, without the involvement
of the courts. And so so.
It should be clear that our system of government is a long way from
Montesquieu's ideal. What is most surprising, however, is that it
works as well as it does. Ultimately, I believe, it is the acceptance
of constitutional conventions that keeps things ticking over. The
Government could, for example, further dominate Parliament by
controlling the timetable for the consideration of legislation but,
on the whole, it does not. Parliament could legally enact legislation
that transfers the power to decide disputes away from the courts and
more to administrators, but it does not. Judges could make radical
changes to the law rather than incremental ones but, on the whole,
they don't. And so on. We don't
have a codified written constitution that sets out the balance and
separation of powers so, ultimately, it is convention that controls
these things. And convention works because everyone wants tomorrow
to be the same as today.
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