“One name a few Separation of Powers“One name a few Separation of Powers

“One must give one power a ballast,
so to speak, to put it in a position to resist another.”1 Is the concept of
separation of powers guiding the British constitutional arrangements? To answer
this question first we must look towards what the aims and functions of the
constitution and weigh it against the achievements of Separation of Powers
towards that objective. Approach taken to the word “guiding” is one creating an
assumption that Separation of Powers will guide the constitution to its
objective. Especially allowing that the British constitution is uncodified it
renders it very diverse, making it less distinct whether Separation of Powers
is “the guiding” principle.

The constitution as described by Wheare is a “system of government
of a country, the collection of rules which establish and regulate or govern
the government”2. Displaying
the constitution to be a set of rules created for the public actors that the
public agrees to follow, aiming to further the well-being of the public. Due to
it being a representative of the laws people are willing to follow, it also holds
and creates a sense of identity of the people it represents. Combined with its practical
functions it aims to make power accountable, manage disputes and legitimise the
power of the government to name a few

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Separation of Powers is one of the key principles limiting power
by spreading it across “three monoliths.” Allocating state power such as creation
of law to the legislature. Giving legitimate power to parliament using democratic
process also seen within Parliamentary Sovereignty. Both limiting and giving state
power to remain order and avoid tyranny. This approach enables the establishment
and procreation of human rights and societal norms, aiming to limit any misuse
of power using accountability.

As “power tends to corrupt and absolute power corrupts
absolutely”3 another
aim of separation of powers is to keep politicians accountable for their
actions to avoid misuse of power. To maintain a consensus and realise the primary
objective of Separation of Powers to form a functioning democratic state.

Establishing a precedent of control in other areas such as
the Judiciary accompanied by elections. Also, one of the main roles of the
legislature is to scrutinise the executive. It does so in many forms ranging
from parliamentary debate to judicial reviews, including power of courts
exemplified by Declaration of Incapability, breach of Human Rights or
international law as seen in Thoburn v Sunderland City Council.4

Creating a legitimate power in a democratic state which
through separation of powers rendered control, allows a representation of
people. Furthering their well-being as their interests are represented. Keeping
of the consensus, by scrutinising misuse of power although arguably political
pressure could be a more effective agent for such cause. As well as providing a
legal basis through creation of an independent judiciary, elected executive and
legislature since candidates will be elected on mandate approved by the
majority, potentially making most future legal changes foreseeable.

Miller case is profoundly focused upon separation of powers,
since it shows the judiciary reviewing legislature to reach a constitutional
decision on who should trigger art.50. It does so since the judiciary’s role
under Separation of Powers is to interpret law created by the legislature, and
based on the law predominantly European Communities Act 1972 they were able to
scrutinise the executive for unconstitutional use of prerogative powers.

“The constitutional principle is that when the power of
the Executive to interfere with the property or liberty of subjects has been
placed under Parliamentary control, and directly regulated by statute”5

Without Separation of Powers we would not be able to have
such a case, since it allows for the courts to scrutinise the work of the
executive as well as rule against it, setting a precedent of promoting
constitutional values such as accountability. In this case, holding the executive accountable
for intent to incorrectly use state power through interpretation of legislature
and referral to constitutional arrangements. Ruling that the legislature must
trigger art.50 6 which
seems a more democratic decision due to representation of citizens by parliament,
especially that the decision was reached in a referendum.

A process impossible without judicial independence allowing
for the court to reach a decision the government of the day may not like, it is
crucial for the judiciary to be capable of it to avoid misuse of power from
other branches. Although arguably they have little control over the legislature
which holds Parliamentary sovereignty, still in this case allowing for a
greater scope of accountability, democracy and upkeep of constitutional

“the UK never adopted a single document that formalises the
fundamental rules and restrictions of its central governing institutions”7.
The UK constitution is an uncodified one meaning a diverse amount of varied
materials governs it. In the form of statue, common law and relevant theories
being the classic examples. One being the Rule of Law popularised by Dicey.  Scholars such as Hayek held that it’s one of the
most effective methods of protecting people from the abuse of power by
government including their individual rights 8.
Seemingly performing a similar task to SoP with its recognition of accountable power.
Thereby it could be a more valid guiding principle against SoP.

However, Rule of Law focuses predominantly on the legal ramifications
the government operates within. Whereas the constitution is seemingly a ramification
itself, although not codified it outlines certain functions and objectives the state
should be performing. Thereby arguably Separation of Powers is a more effective
tool at guiding the constitution to meet its ends as it provides a methodology
of doing so. Most visibly separating state power within three branches. Whereas
Rule of Law could be seen as a theory guiding legal performance within the UK,
however as mentioned before Separation of Powers provides a methodology of guiding
the government towards its constitutional arrangements, thereby arguably is
more pragmatic.

Evans establishes a similar principle since it resolves
around a reporter who “requested disclosure of the letters from the
Departments, pursuant to both the FOIA 2000 and the EIR 2004.” Thereby upholding
Dicey’s laws that everyone stands equal in the eyes of the law, as well as it
also aims to limit executive power since “no person or body is recognised as
having a right to override or set aside the legislation or parliament”9
also linking in with parliamentary sovereignty. Establishing an element of control
again as does Separation of Powers. However, although Rule of Law establishes
an element that Mr. Evans rightfully requested the information under both Acts,
thereby it does lead to a rightful use of the constitution. It is Separation of
Powers that allows for a separate judiciary to rule a case against the
executive and lead partial release of documentation. Meaning although Rule of
law does provide grounds for the government to operate within the law, it is in
fact Separation of Powers which ultimately leads to upholding of the
constitution and making the executive accountable of the wrong decision. Upholding
both Parliamentary Sovereignty like Miller but furthermore providing a
mechanism of actively holding the agents of state power responsible. Therefore,
arguably making it a more sufficient theory in guiding UK constitutional

The constitution has been shaped
over numerous years, setting a precedent or at least context citizens are familiar
with, therefore a guiding principle should be one that most likely resembles the
objectives of the constitution and allows its function. Separation of Powers is
the guiding principle of the British constitutional arrangements. Since its best
fitting with the objectives and with its content. Since it protects people from
abuse of power like Rule of Law but also keeps politicians accountable through
power allocation. Both being desirable to astray from tyranny. As legal
accountability combined with political very effectively restrict absolute
political power providing safety for people whose opinions create the
constitution. Although, Parliamentary Sovereignty may seem more important since
it enables enactment of any laws and acts shaping up the constitution. The
creation of those acts needs following of a certain precedent and ideology, which
makes the constitution so valuable. It is separation of powers that provides
scrutiny and control necessary for that to happen, although one may still argue
towards Parliamentary Sovereignty since “Parliament can make and unmake any law”,
seemingly it would seem realistically untrue as in democracy (Greek for “people
power”) it is people that wield the greatest power, with recent examples of Poll
tax. Thereby limiting and controlling power of the state whilst holding its
agents accountable such as the Miller case and representing the interests of
people, through democratically elected legislature and executive holding law
making legitimacy through election, makes Separation of Powers the guiding
principle of UK’s constitutional arrangements.

1  Montesquieu De l’Espirit de Lois 1748
(The Spirit of the Laws) Book V chapter 14

K.C Wheare 1962 “Modern Constitutions” page 1

Letter 1 from Lord Acton to Archbishop Creighton Cannes April 5, 1887

4  Thoburn v Sunderland City Council 2003 Q.B

5 R
(on the application of Miller and another) v Secretary of State for Exiting the
European Union 2017 UKSC 5

The Lisbon Treaty 2007

7 https://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/162.pdf
page 4

the Rule of Law: History, Politics, Theory

By Brian Z. Tamanaha page 71

Albert V Dicey, An Introduction to the study of the Law of
the Constitution. London. Macmillan and Co Limited. 1902. (Pg.39-40)