Does anyone actually care about the separation of powers anymore?

It may well only exist in the abstract nowadays, and that’s okay

The separation of powers is no doubt a vital component of public law theory, but there’s ever increasing debate about how important it actually is in practice.

There are commentators out there that assert — with little controversy — that the rule of law is an absolutely necessary characteristic of democracy. In turn, they argue that for the rule of law to be effective, there must be a threefold division of power between a legislator, an executive, and an independent judiciary — what is commonly termed ‘the separation of powers’.

It’s a foolproof idea, but one that is becoming increasingly contained to abstract theories about the rule of law and its inner workings.

Throughout history, there have been various attempts to define what we mean by the rule of law. One of the first printed appearances of the term comes from Rutherford in 1644 in his argument against the divine right of kings, but credit for the term’s popularisation is generally attributed to Dicey.

Dicey gave three meanings to the rule of law. The first, he said, was that “no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land”. The second was that “no man is above the law”, and that every man be subject “to the jurisdiction of the ordinary tribunals”. On this point, Lord Bingham has given this example:

If you maltreat a penguin in London Zoo, you do not escape prosecution because you are the Archbishop of Canterbury… There is no special law or court which deals with archbishops… the same law, administered in the same courts, applies to them as to everyone else.

Dicey’s third meaning was one he described as a “special attribute of English institutions”, and arises out of “judicial decisions determining the rights of private persons in particular cases brought before the courts”.

It is this third meaning that has attracted the most criticism, the first two being relatively easy to accept as an adequate exposition of the rule of law. This criticism arises out of the fact it is no longer as true as it perhaps was in Dicey’s time; both the incorporation of the European Convention on Human Rights into English law and the increased use of statute to define the relationship between citizen and state in the UK have resulted in the diminishment of the judiciary’s ability to define the rights of individuals.

While Dicey’s exposition is uncontroversial, the manner in which the term is used today manifests a vagueness ripe for greater debate, so much so that it is generally now only used to describe the positive aspects of any political system, with Finnis describing it as “the name commonly given to the state of affairs in which a legal system is legally in good shape”. Lord Steyn, agreeing, has argued that the rule of law “enforces minimum standards of fairness, both substantive and procedural”, but we’re not all too sure what these minimum standards are.

It is the lack of an authoritative definition that makes it increasingly easy to dismiss the rule of law as meaningless verbiage. Nevertheless, given the extent to which this concept proves exceedingly elusive, and in order not to compound the vagueness further, let’s proceed assuming that the rule of law embodies the meanings Dicey attributes to it.

The separation of powers is also a vague doctrine, and one that has attracted — in the words of Allison — unparalleled “damning and repeated criticism”.

The principle was first introduced by the French constitutional theorist Montesquieu in 1748. According to him, an ideal state should be divided into three distinct parts: the legislature, the executive, and the judiciary, each of them serving a separate function and not impinging upon that of another. He argued this would allow power to be balanced and enable each part to exercise oversight over the others in order that no part overreaches the limits of its intended power.

The institutions of the UK do not strictly embody Montesquieu’s principle. It is difficult to see how the powers of government in the UK can be truly separated in a system under which ultimate legal authority is said to be placed in one institution: parliament (in contrast with the constitutional approach of most other nations).

It is often argued that the principle of the separation of powers is of no relevance at all in the UK. The country’s constitutional rules have developed organically, and now legislature and executive membership overlap almost entirely. In 1995, Barendt went as far as to argue that the development of party discipline within the House of Commons since Dicey’s era has led to a reduction in the exercise of checks on an increasingly powerful government’s authority, that has become unconstrained by the observance of fundamental rights.

Barendt’s view is an extreme one, but it must nevertheless be said — as Masterman does — that the principle of the separation of powers within the UK “lies in a broader reading of the concept, as a dynamic and fluid explanation of how the judiciary interact with the executive and legislative branches.”

If one were to look beyond the rigidity of a strict application of the notion of separation, it would soon become clear that there does exist within the UK a division of power between three distinct institutions, and that each of the institutions retains an ability to exercise a degree of coercive power over the others. But — as Barendt has rightly argued — a lack of precision in the allocation of functions to the three institutions does not condemn the separation of powers to constitutional irrelevance within the UK. The overlap has not resulted in an inability of any one institution to exercise oversight over another. An example of this is the Legislative and Regulatory Reform Act 2006, the deliberations for which took place within a separation of powers framework under which it was argued to be the responsibility of parliament — and not of the executive acting alone — to engineer and implement wide-ranging legislative developments.

Broadly, the separation of powers is necessary for the rule of law, but not in a strict sense. It is sufficient for the principle to be embodied philosophically within the functions and institutions of the state. In the UK, there is a large degree of separation, but it is difficult to define and perpetually changing; does this deprive the UK of the rule of law?

It cannot reasonably be said that it does. Moreover, this philosophical entrenchment of the rule of law within the UK’s political landscape is embodied within the societal view of democracy, as captured well by the American judge, Justice Bradley, when he said:

England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of parliament and the people, to violate which in any material respect would produce a revolution in an hour.

This philosophical embodiment has been borne out in practice too, as while parliament may possess the power to enact outrageous or draconian legislation, if it were to do so, it — in the words of Lord Hoffman — “must squarely confront what it is doing and accept the political cost”.

Fundamentally, a normative application of the separation of powers cannot be said to be necessary for the rule of law or for democratic government. This absence of a normative approach does not result in a democratic deficit so severe that it deprives the UK of democratic government.

It might even be said that a normative application of the separation of powers would result in a greater democratic deficit. In looking to the USA, the ability of a difference in political power between the legislature and the executive regularly threatens to bring the legislative process to a standstill: an ineffective government cannot be said to be democratic. In the UK’s contemporary constitution, the separation of powers is a dynamic and multidimensional idea that is reflected in the status of, and the interactions between, the institutions of government and in the principles by which those relationships are managed.

Thus it is right to say that the separation of powers is a necessary condition for the rule of law and therefore for democratic government itself, but it is sufficient for this to exist as a philosophical ideal.

Matt Collins is University of York graduate and a City Law School GDL student.

Sources

Allison, J. The English Historical Constitution: Continuity, Change and European Effects. Cambridge: Cambridge University Press, 2007.

Barendt, E. Separation of powers and constitutional government [1995] PL 599

Bingham, T. The Rule of Law. London: Penguin Books, 2011.

Dicey, A. An introduction to the study of the law of the constitution, ninth edition. London: Macmillan, 1945 (first published 1885).

Finnis, J. Natural law and natural rights. Oxford: Oxford University Press, 1980.

Masterman, R. The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom. Cambridge: Cambridge University Press, 2010.

Montesquieu. Spirit of the Laws. France, 1748.

Rutherford, S. Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England. 1644.