Separation of Powers in the UK Administrative Structure

This article discusses the features of the UK administrative structure in relation to the doctrine of separation of powers. It explores the legal issues and the check and balance system in place. The British constitution follows a partial/modifi ed version of the separation of powers, with constitutional conventions governing any departures from the doctrine.

ASSIGNMENT

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
REFRENCES...................................................................................................................................6

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.
MAIN BODY
The term fusion of powers is believed to have been first coined by Walter Bagehot, the
British Constitutional expert. It exists by design, first arising as a result of how the British
political system evolved over centuries, with the power of the monarch being constrained by
Parliament. The UK still has a system in which members of the executive are also members of
the legislature
Until 2005, the position of Lord Chancellor was a fusion of all the branches of the UK
political system – as the person holding that position was speaker in the House of Lords, a
government minister heading the Lord Chancellor’s department and the head of the judiciary
Although the above examples indicate the ways in which the United Kingdom infringes
the doctrine of the separation of powers, these violations may be driven by practical
considerations (eg delegated legislation and judges making practice rules). In any event, the
various breaches of the separation of powers may well be governed by constitutional
conventions. For example we have already noted the following:
■ The parliamentary executive (see section 5.7.1) – although government ministers are
drawn from Parliament, they are governed by the conventions of collective and individual
ministerial responsibility.
■ The role of the monarch (see section 5.7.3) – although the monarch is involved in all
three state institutions, these are largely formal overlaps as she is governed by convention (eg in
respect of the Royal Assent).
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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.
Firstly, the British constitution does not follow a pure separation of powers with each
branch of the state completely separated from each other in terms of functions and personnel.
Instead, to the extent that it does adhere to the separation of powers, it follows a partial/modifi ed
version involving checks and balances. Secondly, even where the United Kingdom does depart
from the doctrine of the separation of powers, these departures may well be driven by practical
necessity. In any event, they may well be governed by constitutional conventions.
The issue of the separation of powers in the British constitution is inevitably less clear cut
than in other countries. This is because in other democracies with a codified constitution the
principle of the separation of powers has been specifically written into, and so is structurally part
of, the constitutional text (eg France and the United States). In contrast, the British constitution
has developed incrementally and organically over hundreds of years. It is perhaps worth
remembering that the modern expression of the separation of powers is found in Montesquieu
writing in the eighteenth century (and subsequently incorporated into the constitution of the
United States). Yet a number of our constitutional rules and principles predate this; for instance,
the offi ce of the Prime Minister dates back to the fi rst part of the eighteenth centuryThe issue of
the separation of powers in the British constitution is inevitably less clear cut than in other
countries. This is because in other democracies with a codifi ed constitution the principle of the
separation of powers has been specifically written into, and so is structurally part of, the
constitutional text (eg France and the United States). In contrast, the British constitution has
developed incrementally and organically over hundreds of years. It is perhaps worth
remembering that the modern expression of the separation of powers is found in Montesquieu
writing in the eighteenth century (and subsequently incorporated into the constitution of the
United States). Yet a number of our constitutional rules and principles predate this; for instance,
the offi ce of the Prime Minister dates back to the fi rst part of the eighteenth century
Notwithstanding the above, it is certainly the case that in the last few decades the
parliamentary executive has generally ensured dynamic government whereby the government
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has been able to infl uence heavily the parliamentary legislative programme. A widely perceived
diffi culty, however, is that due to the current electoral system, the government generally
speaking (though not at all times – note the May 2010 general election), secures offi ce following
a general election with the support of a clear (and sometimes substantial) majority of seats in the
House of Commons. This in turn means that the government can 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.
Legislative/law-making body, the question has to be asked as to whether in practice
Parliament actually legislates or whether it merely legitimises and ‘rubber stamps’ the Bills
initiated by the government of the day.
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
In addition, judges will 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, of course, judicial creations and determined by the judiciary themselves.
The obvious diffi culty is that words may have a variety of different possible meanings,
and in order to circumscribe the role of the courts when determining the meaning of legislative
provisions, the judiciary have developed a number of self-limiting principles of statutory
interpretation which assist them. For example, the literal rule requires judges to give words their
ordinary and natural meaning.
R v R [1992] 1 AC 599 In this case the House of Lords set aside the long-standing
common law rule that a husband could not rape his wife. Even though this historic rule was
viewed as anachronistic, the ruling nevertheless represents a de facto use of law-making power.
In constitutional terms, this must necessarily be seen as de facto legislative, with the courts
developing/ creating the law.
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The role of the courts, accordingly, is simply to interpret Acts of Parliament and not to
question or challenge them Lord Diplock reaffirmed that the role of the courts in relation to
statutory provisions was to give effect to the words that Parliament had approved
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
The courts will intervene via judicial review proceedings only when, for example, a
public body misunderstands or misuses its powers, or adopts a faulty decision-making process.
the human rights context of a judicial review application has assumed increasing signifi cance. In
other words, the more a decision impacted adversely on human rights, the more justifi cation was
required by the court for the public body to be able to make i
of judicial review in the past 40 years has coincided with the overwhelming dominance of
the executive in the legislature and so has, therefore to some extent, re-balanced the constitution.
It is true to say that although in the past 40 years there has been less political control over the
executive, there has, however, been a significant increase in the legal control over it via judicial
review proceedings.
In the event of the United Kingdom passing legislation which violated or repudiated
European Union law, it is inevitable that an investigation would be mounted by the European
Commission
Super-Injunctions
Parliamentarians have used privilege to defy the law and that this could undermine the role of
judges. Lord Judge suggested that it may not be advisable for MPs to “flout a court order” even
if they did not agree with it. MPs and peers use parliamentary privilege to flout Court
injunctions, that is a serious breach of the separation of powers.
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REFRENCES
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.
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