A guide to the UK Constitution

This website serves to give readers a general concept of how the British political system works, specifically in the framework of the UK's constitution. It is frequently thought that the UK does not have a costitution. This is not strictly true, and this site is a general introduction and guide to the sometimes mysterious system we call our constitution. Contact us at britishconstitutionblog@yahoo.co.uk

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Separation of Powers

Separation of powers, in practice if not in form, is generally considered a requisite condition for a functioning democracy. Like ‘rule of law’ it is a concept that has superficial simplicity but also a deeper complexity, not least because it has both a descriptive and a prescriptive element. The US Constitution is perhaps the most famous example of how this works in practice. It is based on the idea that there are three functions of government: executive to promulgate laws and oversee administration of the state; legislature to make laws and scrutinize the executive’s work; judiciary to apply and interpret the laws of the land.

How separate these institutions really are in practice is a matter for debate. There is a wide range of ways in which the doctrine can be applied in a constitution. At one extreme there could be a complete mixing of all the functions in one organ or person, such as an absolute monarch. At the other extreme is the idea of absolute separation. The US Constitution incorporates various checks and balances to ensure that no single arm can ever be dominant over the others.

Between these two extremes, as ever, is where the British constitution’s position is to be found. It is in the idea of the mixed or balanced constitution, where there is some degree of mixing and overlap of functions and organs of government. But in an uncodified constitution the boundaries may be hard to identify. The ‘Westminster model’ of government is a paragon of this principle. The great 19th century constitutional essayist, Walter Bagehot, described it thus:

The efficient secret of the English Constitution may be described as the close union, the near complete fusion, of the executive and legislative powers…the connecting link is the Cabinet…A cabinet is a combining committee – a hyphen which joins, a buckle which fastens the legislative part of the State. In its origin it belongs to the one, in its functions it belongs to the other.

This model of government is clearly quite different to the US concept of separation. However the idea of mixed government is that it is the degree of connection, rather than separation that provides checks and balances. Nevertheless, using separation of powers language not only serves to illuminate some of the crucial features of the UK system such as the executive’s dominance of Parliament, but also because some of the central figures, such as the judges, claim to operate within the terms of this doctrine. So while the executive and the legislature may be fused, the judiciary in Britain is and has traditionally been independent of both branches (though of course in theory, the Lord Chancellor is in all three branches of government, though this does not in practice affect his judicial biases. Also, the highest court in the land is to be found in the House of Lords, which is part of the legislature).

The judiciary in Britain is of especial interest here. The development of judicial review is based on the notion of judicial supervision of legality of administration in the application of secondary (or delegated) legislation, which is the name given to those acts of parliament which give public authorities lawmaking powers. As mentioned elsewhere, primary legislation is not a matter for judges to review, in keeping with the Parliamentary supremacy doctrine. Its rapid development in the last thirty years, and the willingness of the courts to tackle issues of high political importance and controversy has often thrust judicial review and the judiciary to the forefront of political discussion. In 1987 the government responded to the growth of judicial review cases by producing a guide for Whitehall called The Judge over Your Shoulder. Judges who frequently deal with English judicial review cases also tend to be contributors to wider constitutional debate, perhaps because of their experience of European jurisprudence through EU and European Convention on Human Rights cases. The “judicialisation” of highly controversial political and social issues can often be seen to put judges in conflict with ministers and Parliament, testing the boundary lines between parliament and the courts. In some cases the judges will step back and state that a particular matter should be settled not by courts but by political means. There, they will often employ separation of powers language to explain or justify their decision, especially when it is a matter of statutory interpretation. The steel strike case of 1980 is a case in point

In this matter, a union sought to increase pressure on the British Steel Corporation by extending strike action to private sector companies not directly party to its dispute. These companies sought injunctions to stop such action. The case turned on the wording of the industrial relations legislation concerning the “furtherance of a trade dispute”. The Court of Appeal granted the injunctions, Lord Denning being concerned about “the disastrous effect on the economy and well-being of the country”. However, the House of Lords was clearly alarmed at the lower court’s reasoning, based not so much on statutory interpretation as one extraneous political exigencies. Lord Diplock pointed out:

At a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers: parliament makes the laws, the judiciary interprets them…it is parliament’s opinion on these matters that is paramount (Duport Steels v Sirs [1980] 1 All ER 529)

The reality on the ground is that ‘parliament’ is the government, in so far as the government will nearly always have a majority, and where that majority is disciplined or unified in consensus, then their opinion is very much Parliament’s opinion. But judges cannot be removed from office save by impeachment (so extremely rare in the UK that it is hardly a consideration), and in general the executive is discouraged from criticising the judiciary’s decisions. A fine balancing act is thus maintained between policy and rule of law.