The theory of separation of powers involves the distribution of powers between the three branches of state, the judiciary, the executive, and the legislature. To prevent the abuse of power and ensure freedom is allocated to all, the roles, and responsibilities of each branch of state must not interlink and should remain individual. The requirement of separation of powers derived back in 1215, when a legal document, known as the Magna Carta, was formed to limit the king's excessive power, and set out basic human rights that were absent during the ruling of King John. Following on from the Magna Carta, the Petition of Right 1628 and the Bill of Rights 1689 were introduced setting out statements regarding the separation of powers between the three branches of state after Charles I use of excessive power.
Although the legal documents in 1215 were put in place, they weren’t initially adhered to until 1748, where the French philosopher, Baron Montesquieu put forward his ideas and thoughts regarding political powers in his book and stated, ‘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’’. His view on the ‘separation of powers’ and ‘checking and balancing’ had great impacts on constitutions around the world, not only in the UK. In this essay I will discuss whether the theory of separation of powers between each of the branches in the UK exists and to what extent by exploring theorists’ views such as Montesquieu, Locke, and many more to support my argument.
The responsibility of the judicial branch in the UK is to apply and interpret law to cases that are presented in the court and tribunals. The judiciary also must ensure they are applying the relevant law and not exceeding their powers and duties by making new law. Subject to article 6 of the European Convention of Human Rights, everyone is permitted a fair and reasonable trial. The executive and legislative branch continue to hold a position in the judiciary and not allow an independent judiciary as one which Locke, Montesquieu, Denning and Dicing hoped for. Although there is an attempt to have strict separation of powers in the UK, this is also not evident as seen in the case of [R v R 1991]and Central London Property Trusts Ltd v High Trees House [1947] which highlighted that, although the judges have interpreted the law as they are required to, they have also exceeded their legal power and made new law which initially is the role of the legislature, coming to the conclusion that there is not a clear separation of powers in the UK.
However, it can be argued that with the opening of the Supreme Courts in 2009 and the introduction of the Constitutional Reform Act 2005, became a resolution to a clear separation in the UK. Section 23 of the Constitutional Reform Act 2005 introduced the opening of the Supreme Courts to make a clear distinction of the roles between the legislature and the judiciary, as the two buildings are separate from each other, Parliament where law is made and the Supreme Court where law is interpreted and applied. The introduction of the Supreme Court enables a fair trial for all as this was an attempt to remove the House of Lords from the judiciary and to execute the powers they held in that branch. Although, s.23 of the Reform Act may be regarded as an attempt to distribute the powers between the three branches, it is not a successful attempt as the House of Lords has yet a part to play in the courts as held in Mathews v Ministry of Defence 2003, where a claim was bought to the Court of Appeal and the House of Lords executed their legal powers and dismissed the claim in which they had no power or responsibility in that branch. This once again emphasises the point that the separation of powers does not operate within the UK regardless of the attempts to separate the judiciary from the remaining two branches.
The role of the executive branch is to govern the country by carrying out the acts the legislative branch has passed. Members of the executive branch include The Queen, the Prime Minister, and many ministers on his behalf. Ministers of the executive branch can sit in House of Commons, the legislative branch, clearly showing the interlink between the two branches in the UK. There are limits to the number of ministers allowed to sit in House of Commons, precisely 95 out of 120, and this may be a solution to distribute the powers between each branch and to avoid excessive power as the legislature have the power to dismiss members of the Government (executive) in accordance with the House of Commons Act 1995. However, more than half of the ministers are permitted to have a seat in another branch, meaning a large amount of the executive members have control and power in the legislative branch and this clearly shows that there is no separation of powers in the UK.
Some may argue the interlinking of powers between the legislative and executive branch is necessary and go ‘hand in hand’ together, such as Walter Bagehot. His interpretation of the relationship between the executive and legislative branch as a ‘close union, nearly complete fusion’ directly opposes the point of Magna Carta as well as Montesquieu’s attempt to separate the branches of state, concluding that in the executive branch, separation of powers does not operate in the UK.
Lastly, the legislative branch involves making laws by passing them through Parliament in the form of Bills. As previously mentioned above, the legislative and executive branch are closely linked as the executive are awarded some power to deal with some legislation that initially is the legislative’s responsibility. This goes against the belief of Montesquieu and Locke as they believed there was no need for a ‘fusion’ between the two as this would result in abuse of power and goes against the purpose of the Magna Carta, Bill of Rights and Petition of Rights, stressing the significance of each of the branches having their own roles and responsibilities.
Furthermore, it can be argued that there is a clear separation of power in the UK as until 2005, Lord Chancellor held the responsibility and duty as the Head of Judiciary, Member of the Cabinet and Speaker of the House of Lords, holding a huge position in each of the branches of state, clearly showing there is no separation of powers in the UK. This was all resolved in adherence to the Reform Act 2005 as it readdressed the position the Lord Chancellor held in the branches of state to ensure separation of powers was present. This was resolved by allocating judicial responsibilities to the Lord Chief Justice and by electing its own speaker at the House of Lords. This allocation of responsibilities from the Lord Chancellor has been successful in maintaining a separation of powers in the UK for Lord Chancellors but it can be argued that this doesn’t result in a separation of powers to a huge extent.
It has been discussed in this essay whether separation of power operates in the UK. Although the introduction of the Supreme Courts in 2009 and the Constitutional Reform Act 2005 was sought as a manner to resolve the absence of separation of powers in the UK, it still hasn’t worked effectively as seen in Mathews v Ministry of Defence [2003]. Furthermore, although there was another attempt to distribute the powers between the executive and legislative branch in limiting the number of ministers allowed to sit in the House of Commons to avoid abuse of power, both branches remain closely interlinked going against the purpose of Magna Carta and the significance of a separation of power. Not to mention the re-allocation of duties and responsibilities of the Lord Chancellor as he exceeded power enabled to him in all three branches, concluding that regardless of acts being introduced to separate powers, each of the branches of state remain interlinked coming to a clear conclusion that separation of powers operates to a small extent in the UK.