Separation of Powers

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‘The separation of powers, as usually understood, is not a concept to which the United Kingdom constitution adheres.’

The doctrine of separation of powers was perhaps most thoroughly explained by the French Jurist Montesquieu (1989), who based his analysis on the British Constitution of the early 18th century.   This essay will discuss the doctrine of separation of powers, its meaning and importance within the United Kingdom’s un-codified constitution.   It will analyse the relationship between the Executive, Legislature and the Judiciary and how the United Kingdom does not strictly adhere to the doctrine.

Montesquieu (1989) argued that to avoid tyranny, the three branches of Government, the Legislature, the Executive and the Judiciary should be separated as far as possible, and their relationship governed by ‘checks and balances’ (Montesquieu, 1989), Montesquieu (1989) described the divisions of political powers between the three branches and based this model on his perception of the British Constitutional System, a system which he perceived to be based on a separation of powers between King, Parliament and the law courts.   Originally it was the Monarch who had all the power, however, it has now been transferred.

The Legislature, or law making function, which covers actions such as the enactment of rules for society.   The Executive, or law applying function, which covers actions taken to maintain or implement the law, defend the state, and conduct internal policies.   Finally, the Judiciary, or law enforcing function, which is the determining of civil disputes and the punishing of criminals by deciding issues of fact and applying the law.   These functions of Government should be carried out by separate persons, or bodies and that each branch should carry out its own function.   For example, the Legislature should not judge nor should the Executive make laws. The Legislature, Executive and the Judiciary should also all have equal legal status so each could control the excessive use of power by another branch. 

The British Constitution is fundamentally different to the US constitutional model and its fragmented structure. The American model is a deliberately designed political body constructed with precision by the 18th century 'founding fathers' and maintained to the present day by an entrenched codified document. By contrast, the British constitutional model has evolved and adapted over the centuries, deriving from statute law, customs and monarchical power among various sources. Such contrasting constitutional evolution has led to differing interpretations and applications of the theory of the separation of powers.

In essence, the separation of powers within Britain's constitutional system tends to be far less explicit and somewhat blurred in comparison to the more rigid US system of government. Indeed, some would say that the basic principles of the separation of powers are not specifically adhered to within the British political model. The most obvious evidence of this is reflected in Britain's parliamentary system of government, as opposed to a presidential type in the USA, where 'the assemblies and executives are formally independent of one another and separately elected'. In practice this means that in the USA the President and members of the legislature (Congress) are elected separately and occupy completely different political branches, whereas in the UK the most senior elected members of Parliament also form the executive branch of government. This more fused political structure leads to a situation where the Prime Minister and Cabinet (the executive) are also elected members of Parliament (legislature), creating a scenario that conflicts with the essence of the separation of powers. The British political system also had the historic position of Lord Chancellor possessing the greatest theoretical power, being part of the executive (Cabinet), legislature...
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