Separation of Powers in the UK Administrative Structure

This presentation discusses the features of the UK administrative structure in relation to the doctrine of separation of powers. It explores the interlinking roles of legislature and executive, the challenges to maintaining separation of powers, and the remedies to address these challenges. The presentation also highlights the importance of constitutional conventions in mitigating the apparent breach of separation of powers in the United Kingdom.

Separation of Powers
Introduction
•Separation of Power is a crucial feature in any of the democratically established
administration.
•The understanding of this separation is rooted in the work of Montesquieu who
conceptualised it to make administration by people in the form of democracy as a
structure that was intrinsically fair and just rather than a mode of tyranny and
oppression.
•Herein, we discuss certain features of the UK administrative structure in light of
the principles of the doctrine of separation of power.
•The following analysis lists out certain features which are discussed along with
the plausible legal issues they lead to and how the separation of power still
remains through check and balance.

Understanding the sphere
•UK employs a separation of power that is not exactly strict and watertight. In fact,
it has also been referred to as fusion of powers a phrase coined by Walter Bagehot,
the British Constitutional expert.
•It has been argued by him that this structure exists by way of the very design and
evolution the administrative system went through.
•He has continuously highlighted the interlinking roles of legislature and executive
and how they make UK enjoy a fusion of power through parliamentary executive.
•Recently until 2005, Lord Chancellor's position was one which is suitable to
highlight this fusion as the person holding this office was a part of all three organs
in one way or another.
•These examples do make one think that there is a loose conception of Separation
of Powers in UK but there are a few which highlight a good compartmentalisation.

 It is necessary to highlight that these structural changes are due to the practical
considerations and somewhat due to political will as we shall find. All these aspects
of breach of the separation of powers are suitably taken care of by constitutional
conventions.
 Parliamentary Executive drawn from Parliament, are governed by the conventions
of collective and individual ministerial responsibility and the role of the monarch is
though as a part of all three organs it is only a formal overlap as per the
conventions of the Royal assent suggest
 The existence of these constitutional conventions, therefore, serves to mitigate the
fact that there is a notional or apparent breach of the separation of powers in the
United Kingdom.
 The practical challenge that is being referred to again and again highlights the
unwritten Constitution of Britain. Codification in the 1900s was a key feature in
France and Germany but the same never got codified in Britain and thus Separation
of powers is a doctrine protected through common law usage and Constitutional
Conventions. British constitution has developed incrementally and organically over
hundreds of years.

Setting the Limits
•Montesquieu's work was notably completed in the eighteenth while UK had a
number of our constitutional rules and principles which were continuing before
this conceptualisation.
•One understands that UK through its structure has allowed a interlinked role to
the legislature and Executive. Judiciary has for long chosen the route of deference
rather than judicial review, a popular mode in the democratic structure of several
countries.
•This is also seen as a loss of a key mode to check and balance power and thus is
in direct correlation to the idea of this interlinkage. UK uses Parliamentary
Sovereignty and thus the same shall not be tinkered with.

1. The issue in this structure has cropped up , despite several
precautions, due to the high possibility of the executive
affecting the Legislature. This tussle between the executive
and legislature is more of a political nature and thus the
remedy of the same lies in political reforms rather than a
change in the legal norms.
2. Consequently , this has led to a tussle between the Judiciary
and the executive. Although, there are precautions like the sub
judice rule but the very dealings and operations of the
executive have created challenges that the Judiciary has taken
up ,assuming and arguing them to be under its purview as per
the conventional mandate.

Finding the Answers
•The reform or remedy to settle the tussle between the parliament and the executive
is in the electoral reform. The FPTP system has created a two party system for long
in UK and in several other countries. USA employs the same but voices of fair and
proportional representation have always been raise without much action.
•The development and change in demographics has highlighted the need for
development of a third front
•A majority ruling does not mean that the voices of those who lost the value of their
vote are left unheard. More so, it allows the government to dominate the Commons
to such an extent that it has led to the suggestion that the balance between the
executive and the legislature has swung too heavily in favour of the former.
•Especially in the scheme of European Union the Legislative role was somewhat
subdued and questions regarding the legislative intent were duly raised , as being
not in Parliament’s control. This was taken as a challenge to parliamentary
sovereignty. ‘Rubber stamping' the Bills initiated by the government of the day
became a norm.

•The FPTP strips the public from proportionality as only the
largest party governs yet the proportional representation
allows extremist parties to gain seats in the House of
Commons which is seen as a negative factor. FPTP may also
in fact promote tactical voting, one may vote for a party he or
she does not particularly like just to avoid voting for the two
largest parties.
•This has potentially led to the government dominating the
House of Commons to such an extent that it has led to the
suggestion that the balance between the executive and the
legislature has swung too heavily in favour of the former.

Judges construe unclear and ambiguous legislation in the light of certain
constitutional principles such as the right of access to the courts. These
constitutional presumptions are Judicial Creations and are typically looked with a
critical view.
The criticism of this lies in the fact that words can be construed and then
enunciated in a different way which is why the literal rule of interpretation has
been the preferred way or there are instances of judicial deference. These rules of
interpretation are also mentioned as self – limiting principles to bind the role of
courts in a certain structure that is self regulated largely.
To see an example of an aberration or a step to change : R v R [1992] 1 AC 599.
This is a case that created a demarcation between the cosensual ties in a marriage
and the possibilities of marital rape. This was seen as anachronistic rule that had
persisted for long under the harbour of common law itself. This can be taken as a
regulation of the Common law by the judiciary itself but the same was treated as a
critically negative step a creation of law.
JUDICIAL REVIEW : AS A SOLUTION

• In the United Kingdom, the courts are conscious of their constitutional position in supervising the
activities of the executive. For example, in the context of an alleged abuse of power by a local authority in
respect of how it exercised a particular public law discretion (eg in terms of the allocation of financial
resources), the judges will act with restraint in ensuring that they do not substitute their judicial view of
how a particular public law discretion should have been exercised with that of the local authority.
• Instead, they ensure that the discretion exercised was within the legal limits of the local authority.
Judicial review is essentially a procedural mechanism which is aimed at the decision-making process,
rather than the decision itself per se.
• In the event of the United Kingdom passing legislation which violated or repudiated European Union
law, it was inevitable that an investigation would be mounted by the European Commission. The courts
began to side with the EU law and the executive’s control was thus checked. Recent case of Miler
highlights this too.

References
•Blau, A., 2004. Fairness and electoral reform. The British Journal of Politics and
International Relations, 6(2), pp.165-181.
•Ceil, C., 2018. The Concept of Separation of Powers Is Not Well-Respected in the UK
Constitution. Available at SSRN 3519815.
•Curtice, J., 2010. So what went wrong with the electoral system? The 2010 election
result and the debate about electoral reform. Parliamentary Affairs, 63(4), pp.623-638.
•Kedar, O., 2012. Voter choice and parliamentary politics: An emerging research
agenda. British Journal of Political Science, 42(3), pp.537-553.

 Ryan, M. and Foster, S., 2013. Unlocking Constitutional & Administrative Law.
Routledge.
 Skinner, Q., 2001. Bagehot: The English Constitution. Cambridge University Press.
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