Analysis of the Doctrine of Separation of Powers in UK Public Law

This essay analyzes the doctrine of separation of powers within the framework of UK public law. It begins by introducing the doctrine as a means to prevent the abuse of power by governmental branches, referencing Montesquieu's identification of the legislative, executive, and judicial branches. The essay then explores how the doctrine is applied in the UK, contrasting it with the systems in countries like the USA. It notes the historical context of the UK's unwritten constitution and parliamentary supremacy, highlighting instances where the separation of powers appears diluted, such as the Queen's role and the Lord Chancellor's position. Despite these apparent overlaps, the essay argues that the separation of powers is indeed a key tenet of the UK political system, supported by judicial precedents and legislative actions like the House of Common Disqualification Act 1975 and the Constitution Reform Act 2005. These changes have led to the establishment of the Supreme Court and a clearer delineation of powers, solidifying the doctrine's place in UK law. The essay concludes by affirming the importance of separation of powers in the UK context, given the historical power of Parliament and the evolution of judicial and legislative practices.

PUBLIC LAW
Doctrine of Separation of Powers
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As per Lord Acton, "power corrupts and absolute power corrupts absolutely". This makes it
necessary to ensure that reasonable restrictions are placed on the various branches of
government so as to minimize the incidence of abuse of power1. The three branches of
government as identified by Montesquieu refer to the king or the law enforcer, the Parliament
or the law maker and the judiciary for the interpretation of the laws made. In order to check
the unreasonable use of power by the above branches, the doctrine of separation of power has
been put in place2. As per this doctrine, there are separate powers which are vested to the
various branches of government with limited overlapping which tends to provide reasonable
checks and balances. This ensures that while one branch is exercising power, there are
reasonable safeguards available to the other breaches of government to ensure restrained and
responsible use of power3.
In almost all modern democracies, this principle is highlighted in the written constitution and
also constitutional supremacy is upheld. However, the situation in UK is somewhat different
as there is no written constitution and also Parliament supremacy is upheld. As a result,
Parliament was believed to have unfettered powers with limited restraint available to the
judiciary. This seems quite different from the prevalent practice in other democracies such as
USA where the constitution is supreme and also judiciary has wider powers. The separation
of power doctrine also seems diluted in UK owing to the fact that a particular government
member is not limited to only one government branch and may represent different branches
simultaneously4. Take for instance the Queen who is the head of all government branches and
has executive, legislative and judiciary powers vested in one position. Another example is the
position of Lord Chancellor in UK which despite being part of the executive branch of
government also had significant judicial powers. A similar case can be observed with regards
to the judicial powers vested in the House of Lords and Privy Council which led to significant
overlapping of legislative and judicial powers. Further, before 2005, a Supreme Court was
also lacking thus seemingly keeping the judicial powers vested in other branches. The above
arrangement clearly reflects lack of existence of a strict separation of power as exhibited in
other modern democracies especially USA5.
However, it would be incorrect to conclude based on the above evidence that separation of
power is absent in the UK context. The first evidence in this regards can be uncovered from
judicial precedents where in various cases, it has been highlighted that separation of powers
is a key component of UK constitution. A case in point is the R v Hinds [1979] Crim LR 111
43 case where Lord Diplock has highlighted the existence of separation of power in UK6.
Also, steps have been taken by the legislature through various acts which clearly support the
1 Tolkien, J.R.R. The Return of the Kings. London: HarperCollins Publishers, 2001
2 Tolkien, J.R.R. The Silmarillion. Ed. Christopher Tolkien. London: HarperCollins Publishers, 1999
3 Zimbardo, Rose A. “Moral Vision in The Lord of the Rings.” Understanding The Lord of the Rings: The Best of
Tolkien Criticism. Ed. Rose A. Zimbardo & Neil D. Isaacs. Boston: Houghton Mifflin Company, 2004. 68
4 Auden, W.H. “The Quest Hero.” Understanding The Lord of the Rings: The Best of Tolkien Criticism. Ed. Rose
A. Zimbardo & Neil D. Isaacs. Boston: Houghton Mifflin Company, 2004. 31-51
5 Masterman R. and Wheatle S, ‘Unpacking separation of powers: judicial independence, sovereignty and conceptual
flexibility in the UK constitution’ [2017] PL (Jul), 469-487
6 Ibid. 5

observation of courts. Take for instance, the section 1 & section 2 of House of Common
Disqualification Act 1975 which tends to prohibit certain position holders from becoming the
members of House of Common and also ensures that the number of members does not exceed
75. Another key legislation which has reflected on the existence of separation of powers is
the Constitution Reform Act 2005. It has brought about sweeping structural changes and led
to elimination of judicial powers of Lord Chancellor, limiting the judicial powers available to
the House of Lords and most importantly paved way for the establishment of Supreme Court.
Also, the Supreme Court has been given extensive judicial powers which were earlier vested
with the executive or legislative branches of government7. These legislative changes clearly
reflect the existence of separation of power as these aim to facilitate the same.
On the basis of the above discussion, it would be appropriate to conclude that the statement
made by Barendt is indeed correct. This is because due to unwritten constitution, there are
extensive powers available to the Parliament particularly with regards to amendment of
constitution and also historically a significant amount of judicial power was yielded by the
legislative and executive branch. However, the judicial decisions along with legislative
changes in the last four decades clearly have cemented the place of separation of powers
doctrine as a key tenet in the UK political system.
7 Masterman R. and Murkens J, ‘Skirting supremacy and subordination: the constitutional authority of the United Kingdom
Supreme Court’ [2013] PL (Oct), 800-820