Separation of Power of the British and U.S. System

This paper discusses the theory of separation of power and compares the application of the doctrine in the UK and the US. It analyses the inter-connection between the organs of the government in the UK and the strict separation of power in the US. The paper also discusses the legislative, executive and judiciary powers in both countries.

Running head: SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
Separation of Power of the British and U.S. System
Name of the Student
Name of the University
Author Note

1SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
Separation of power is the system of governance by which the organs of the government
are kept separated under a watertight compartment. The three organs of the government, namely
the Legislature, Executive and Judiciary has been bestowed with their own powers and
responsibilities and by the grace of the concept of separation of power, they do not have the
authority to interfere into each other’s function. It is essential for the organs to be separate and
not interfering with the each other’s function. It is one of the most basic concepts, which is
present in all modern democracy. It strives to limit the interference of other organs into the
function of another, thus limiting corruption within the organs of the government with the help of
the checks and balance way of governance1. It also looks out to distribute the concentration of
power that is unchecked so that the inefficiency and autocratic approach of the organs are
avoided. However, it is not equally accepted and applied in every form of government. Some of
the governments use a much more relaxed version of the traditional theory of separation of
power. Every nation has its own extent to which this theory is applied2. The United Kingdom has
its own threshold where it is kept to a certain limit while the United States strives for a stricter
application3. This paper strives to analyse the theory of separation of power by comparing the
two super-powers: The US and the UK.
Aristotle was the first to mention about the doctrine of separation of powers. He said that
there are three aspects of a constitution, namely Deliberative, Official and Judicial. This can be
interpreted as the modern day legislature, executive and judiciary, precisely. John Locke, an
eminent political thinker in 1690 proposed that power to legislate and execute laws should not be
1 Mojapelo, Judge Phineas M. "The doctrine of separation of powers." Advocate 26.1 (2013): 37-46.
2 Raz, Joseph. "The rule of law and its virtue." The Rule of Law and the Separation of Powers. Routledge, 2017. 77-
94.
3 Möllers, Christoph. The three branches: a comparative model of separation of powers. Oxford University Press,
2013.

2SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
given to the same authority as it would tempt such authority to make use of such powers for their
own benefit and would exempt itself from any prosecution. Thus Locke was of the opinion of
keeping the body that makes law and the one that execute them separate for a better governance
and administration4. Later on, Montesquieu, the French philosopher developed the doctrine in
the book ‘The Spirit of Law’ where he stated that there would be no liberty or freedom if the
authority of adjudication were not kept away from the law-making and law-executing bodies.
According to him, if the judiciary is not kept separate and joined with the legislature, it is the
citizens would suffer eventually, as the legislator would be the one to decide infringement of law
and the judge would be a legislator making laws as per his whims and fancies5. The judiciary, if
joined to executive, would have the potential of an oppressor, executing anything that infringes
the law in its eyes. Montesquieu discussed the necessity of keeping the organs of the
government at distance from each other but it did not opine that the legislature and the executive
would not have some influence on each other. He suggested of having a government where the
organs would not employ or exercise the duty of the other in the way of exercising its own
function6. Sir William Blackstone elaborated the theory of Montesquieu where he laid down
that the doctrine of separation of powers should be exercised in moderation; the separation
between the legislature and the executive should be limited, so that there is a balance in the
constitutional structure7.
4 Huq, Aziz Z., and Jon D. Michaels. "The Cycles of Separation-of-Powers Jurisprudence." Yale LJ126 (2016): 346.
5 Shackleton, Robert. "Montesquieu, Bolingbroke, and the separation of powers." Charles-Louis de Secondat, Baron
de Montesquieu. Routledge, 2017. 405-418.
6 Waldron, Jeremy. "Separation of powers in thought and practice." BCL Rev. 54 (2013): 433.
7 Hart, Herbert Lionel Adolphus. "Positivism and the Separation of Law and Morals." Law and Morality. Routledge,
2017. 63-99.

3SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
Separation of Powers in the United Kingdom
UK being a country with no written constitution, therefore has is no written jurisdiction
of the organs of the government and thus has no formal separation of the power of such organs.
However, the separation does exist in a weaker form as there are express overlapping and
interference among the organs. The separation of power dictates that the three power governing a
state must be separate and must not exercise each other’s powers, however keeping the three
organs completely separate from each other practically as well as theoretically impossible.
Following this facet, the organs of the government of UK has a close relationship among them,
which made Walter Bagehot comment in the 19th century that it is nearly a “fusion”8.
a. The Legislature and the Executive:
In fact, many government Ministers comes from one of the bicameral houses of
Parliament, though it is limited in number. Other than this, most executive members are
abstained from involving with legislative functions like holding offices or getting involved in
political affairs. The crossover or the involvement is limited to the executive officials elected or
nominated as ministers. Like, the Prime Minister holds a substantial amount of power and
responsibility on behalf of the executive as the leader of the ruling party and as the face of the
present government for advocating their policies. Therefore, it is quite clear that the executive
dominates over the legislature as the government is formed and taken over by the party with the
majority votes in the House of Commons, thus making it normal for the legislature to receive a
substantial volume of pressure from the executive. The governments tend to controls or influence
a major portion of legislative work even though it is legislature’s job to do. Although, the
8 Bagehot, Walter. "On the Metaphysical Basis of Toleration." New England Review 37.3 (2016): 187-189.

4SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
legislature has the authority to pass a vote of no confidence against the government for its
dissolution, yet it is a rarely phenomenon witnessed in the history of political governance of the
UK. Delegated legislation being a significant phenomenon, it is enjoyed by the executive body
that deviates from the rule of separation of power, yet it is important and necessary to scrutinize
the actions of the government that tend to be oppressive towards the citizen at times. Therefore,
it can be said that the legislature and the executive body of the United Kingdom is intertwined
with each other to a great extent, which speaks for a weak application of the doctrine of
separation of powers9.
b. The Executive and the Judiciary
Although being a part of the Executive body, the Privy Council is the supreme and
independent court. Since the Constitutional Reform Act of 2005, the Lord Chancellor is not
involved in the functioning of the judiciary. However, the Attorney General in Wales and
England, and the Lord Advocate in Scotland perform quasi-judicial functions yet are members of
the Executive body. The Judiciary is the only body that enjoys independence. It is free from any
interference from the other two bodies, guaranteed by the statutes, precedents and constitutional
conventions. The judges of the Privy Council are not hindered or dismissed arbitrarily without
rational cause and prior notice. Similar protection and privilege is offered to the judges of the
lower courts. The executives cannot dismiss members of the tribunal without valid grounds as
well. It is an important factor by which the government is abstained from abusing its power
irrationally. However, the government many a times takes up initiative to point out transparency
and fairness of the judgments passed by the courts. The court is extremely particular while
working on a dispute involving the government as one of the party to such dispute. In addition,
9 Goodnow, Frank J. Politics and administration: A study in government. Routledge, 2017.

5SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
there is complication and confusion pertaining to the role and scope of the Home Secretary in
penal provision and judgments regarding the sentencing of the convicts. In the case of M v.
Home Office it was stated that the Executive and the Judiciary would respect and not interfere in
all the decisions that each of the organs would take for carrying out its functions10. The court and
the Home Secretary jointly consents and sign the official order of the Extradition of the British
nationals, otherwise such order has no effect.
c. The legislature and the Judiciary
The Judiciary takes up certain functions of the legislature in the disguise of court function
which actually strengthen and empowers them and makes them free from the other two organs of
the government. The judges of the Supreme Court are not treated as a part of the House of Lords,
as unlike that of the year 2009 when the judges or the Law Lords of the Supreme Court used to
be held as a member of the House of Lords. Fortunately, the establishment of the Supreme Court
dealt and settled its ambiguity of the capacities that it fulfilled earlier. It has now been clearly
mentioned that the members of the parliament would not hold full-time positions in the
Judiciary. Such departure of the Judiciary from the House of Lords has led to a bigger confusion
and tension among the other two organs of the state. This is made the judges unable to put
forward their opinions of the proposed bills and amendments and similarly, the members of the
parliament are unable to raise question of the decisions of the judges to hold them accountable
for the judgments.
10 M v Home Office [1993] UKHL 5

6SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
However, the legislative body which is the parliament still holds the authority to impeach
the judges of the Supreme Court and other lower courts in case of severe misconduct and for
other criteria that violates their professional threshold. The two houses of the parliament have the
authority to impeach a judge by passing a jointly agreed motion. On the other hand, the courts
are the interpreter of laws made by the legislature which gives them the authority to read and
bring out the meanings of the statutes made by the parliament, while it is also evident that the
judiciary cannot declare a law void unless it violates the constitutional conventions of the
country.
Therefore, to conclude the position of the three organs of the government in the UK, it
can be clearly claimed that the organs have a definite inter-connection with each other and they
share each other’s functions to some extent as well. They portrays the partial version of the
theory that needs the organs of the government to be separate from each other yet sharing slight
connection between them without interfering into each other’s business completely11.
Separation of power in the United States
The doctrine of separation of power that keeps the three organs of the government,
namely the legislature, the executive and the judiciary, completely separate from each other’s
control is strictly followed in the United States12. They keep the organs absolutely away from
each other’s interference to keep a check on abuse of power. They maintain such strict
separation by way of the method of Checks and Balances13.
11 Möllers, Christoph. The three branches: a comparative model of separation of powers. Oxford University Press,
2013.
12 Dry, Murray. "Checks and Balances." The Encyclopedia of Political Thought (2014): 461-463.
13 Wilson, Woodrow. Congressional government: A study in American politics. Routledge, 2017.

7SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
Legislative power
The legislative functions are carried out by the ‘Congress’ which is the Parliament of the
Unite States. The Congress is bound by the non-delegation doctrine which restricts it from
delegating its legislating responsibilities to the other organs of the government. In the case of
Clinton v. The city of New York, it was held by the Supreme Court that the Congress has no
authority to delegate a veto power to the President14.
However there has been instance of delegation of power to the judiciary by the legislature
in the case of Wayman v. Southard where the court had laid down judicial procedure to interpret
and make insertion in legal provisions. It was held that the Congress had unconstitutionally
delegated power to the judiciary15. However, Justice John Marshall supported such delegation
and stated that important matters must be differentiated from ordinary course of things. Under
such important circumstances, such delegation should be treated as a mandate to fill up the
necessary gaps. The Supreme Court had not declared a delegation of power unconstitutional until
the 1930s16.
Executive power
The President of the United States is vested with the supreme executive power who is
appointed as the head of the Armed Forces of the nation. Although he is the supreme commander
of the executive power, yet he receives aids and advice of the Senate to ensure that the laws
made by the legislature are sincerely executed. However, the Congress has the authority to
14 Clinton v. City of New York, 524 U.S. 417 (1998)
15 Wayman v. Southard: 23 U.S. 1 (1825)
16 Wayman v. Southard: 23 U.S. 1 (1825)

8SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
restrict the President by impeaching him. The Congress bears the power to pacify the executive
from carrying out their power excessively or making an abuse of power17.
Judicial power
The Judiciary is the body vested with the power to adjudicate the violation of law. The
Supreme Court and the other court under it are established under the law made by the Congress.
The courts carrying out judicial powers and functions are called ‘Constitutional Courts’. The
Congress has the authority to establish courts that have legislative attributes, yet has no judicial
capacity and its members has no powers as the judges of the constitutional courts. The Supreme
Court of the US in the case of Murray's Lessee v. Hoboken Land & Improvement Co, held that
under Common law or Equity, a legislative court holds no authority to adjudicate a suit as it is
the inherent function of the judiciary. The legislative courts are only vested with the powers to
decide upon matters related to public rights that involve the government and the citizens18.
By analyzing the US model of the doctrine of separation of power, it could be deduced
that the country follows the theory rather strictly, than the UK. Although there is stringent
separation between the organs, yet the Congress is enjoying a supremacy over the other organs
and posing interference over them to some extent. Therefore it can be said that it may not follow
the partial version of the doctrine completely, yet it neither follows the pure version as well, as
there traces of legislative interference can be found over the other organs of the government.
Conclusion
17 Herring, Pendleton. Presidential Leadership: The Political Relations of Congress and the Chief Executive.
Routledge, 2017.
18 Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)

9SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
The two models of the theory of separation of power portray two different forms or
version of it. The UK model clearly lays down a partial version of the doctrine. It can be stated
that the doctrine of separation of power is not followed purely, but partially in the scenario of the
United Kingdom where the three organs are not in a water-tight compartment. While, the US
model follows it quite strictly to a great extent. Yet, the US model too shows some signs of
overlapping of the organs, especially the Congress having supremacy over the others. Therefore
it can be concluded that the so-called ‘pure version’ of separation of power is a myth and it does
take some involvement of the organs of the government into each other’s territory to maintain a
check and balance of power.

10SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
Bibliography
Bagehot, Walter. "On the Metaphysical Basis of Toleration." New England Review 37.3 (2016):
187-189.
Clinton v. City of New York, 524 U.S. 417 (1998)
Dry, Murray. "Checks and Balances." The Encyclopedia of Political Thought (2014): 461-463.
Goodnow, Frank J. Politics and administration: A study in government. Routledge, 2017.
Hart, Herbert Lionel Adolphus. "Positivism and the Separation of Law and Morals." Law and
Morality. Routledge, 2017. 63-99.
Huq, Aziz Z., and Jon D. Michaels. "The Cycles of Separation-of-Powers Jurisprudence." Yale
LJ126 (2016): 346.
M v Home Office [1993] UKHL 5
Mojapelo, Judge Phineas M. "The doctrine of separation of powers." Advocate 26.1 (2013): 37-
46.
Möllers, Christoph. The three branches: a comparative model of separation of powers. Oxford
University Press, 2013.
Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)

11SEPARATION OF POWER OF THE BRITISH AND U.S. SYSTEM
Raz, Joseph. "The rule of law and its virtue." The Rule of Law and the Separation of Powers.
Routledge, 2017. 77-94.
Shackleton, Robert. "Montesquieu, Bolingbroke, and the separation of powers." Charles-Louis
de Secondat, Baron de Montesquieu. Routledge, 2017. 405-418.
Waldron, Jeremy. "Separation of powers in thought and practice." BCL Rev. 54 (2013): 433.
Wayman v. Southard: 23 U.S. 1 (1825)
Wilson, Woodrow. Congressional government: A study in American politics. Routledge, 2017.