Unit 2: Separation of Powers

Three branches of state

Requires 3 separate ‘branches’ of State which share the state’s political power:

• Legislative - makes law

• Executive - implements law

• Judiciary - applies the law

And these 3 branches act as checks and balances on each other.

Two ways of separating power

Function

• Each branch of state exercises:

  • Only one kind of function And

  • All of that kind of function

Personnel

• Each branch of state has:

  • Entirely separate personnel (staff/members) and

  • No one person should serve in more than one branch

These models are not mutually exclusive - usually work together.

The rationale

Why is SoP a good thing?

• Prevent Tyranny: constrains on every institution’s power reduces the risk of abuse of power.

• Promotes efficiency: Increases the likelihood of good decision-making by state institutions.

Preventing Tyranny (or protecting liberty)

“The accumulation of all powers, legislative, executive and judiciary, in the same hand […] may justly be pronounced the very definition of tyranny.” - J. Maddison

“When legislative and executive powers are united in the same person, or in the same body […] there can be no liberty.” - Baron de Montesquieu

Promoting efficiency

“The essence, though not the whole, of separation of powers lies in […] the matching of tasks to those bodies best suited to execute them. The core of the doctrine is not liberty, as many writers have assumed, but efficiency.” - N Barber

2 ways of Sop promoting efficiency

• By allocating functions to instructions well-suited to carrying them out.

• By establishing ‘creative friction’ between institutions that improves performance.

Sop in USA

Partial model b it closer to a pure model than the UK.

Legislative branch = Congress

Executive branch = President

Judicial Branch = US Supreme Court and Others

Sop USA function and personnel

The United States Constitution

Article 1, s.1

• “All legislative Powers herein granted shall be vested in a Congress of United States.”

Article 2, s.1

• “The executive Power shall be vested in a President of the United States of America.”

Article 3, s1

• “The judicial Power of the United States, shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.”

Sop USA check and balances

Checks on Congress:

• Legislation can be vetoed by President (veto can be overridden by 2/3 congressional majority).

• Courts can review legislation to ensure compatibility with Constitution.

Checks on President:

• Congressional approval required for exercise of sine executive powers.

• Courts can review executive action to ensure compatibility with legislation and the Constitution.

Checks on Courts:

• Judges appointed by President (subject to congressional approval)

• Constitutional case law can be reversed through constitutional amendments and cases about legislation can be reversed through legislation.

Applying the SoP theory in the USA

Rationale 1: Preventing tyranny

• Strictly separate institutions, separate personnel, clearly defined functions and checks and balances = good

• But less time effective in times of unified government (where President and Congress are controlled by the same party)

Rationale 2: Promoting Efficiency

• Promotes specialisation and creative function in general…

• But may reduce efficiency due to stalemate in times of divided government (when Presidency and Congress are controlled by different parties)

SoP Duport Steels Ltd. V Sirs 1980

In general - some degree of separation:

“[t]he British constitution, through largely unwritten, is firmly based upon the separation of powers”

Constitutional Reform Act 2005

Before:

• UK’s highest court was the Judicial Committee of the House of Lords part of Parliament…

• The Lord Chancellor was

  • Head of the judiciary, entitled to sit as a judge

  • And speaker of the House of Lords

  • And a cabinet Minister.

After CRA:

• UK SC replaced the Judicial Committee of the House of Lords and judges no longer sit in Parliament.

• Lord Chancellor’s judicial functions removed and given to Lord Chief Justice.

Personnel Overlap

Government Ministers must be MPs or Peers

Acts guarantee some separation:

• Max number of paid gov min overall = 109 → Ministerial and Other Salaries Act 1975

• Max MPs as gov mins = 95 → House of Commons Disqualification Act 1975

• Wider Executive barred from Parliament House of Commons Disqualification Act 1975

Functional overlap

Government is formed from poltical party with most MPs (usually a majority)

• Gov can ‘whip’ this majority of MPs from its party: telling them how to vote in Parliament.

• Gov therefore has lots of control over Parliament’s functions

  • E.g. when gov whips MPs to vote for its Bill to get passed with minimal scrutiny

Government in Parliament

Problems:

• Executive dominance may increase the risk of abuse of power: “elective dictatorship”

• Reduces scrutiny of legislation and therefore reduces creative friction/efficiency

Benefits?

• Executive dominance may increase efficiency by preventing gridlock

• Gobs relationship to Parliament may help reduce abuse of power

  • Gov is accountable to Parliament (debated, questions, select committees)

  • Gov requires confidence of House of Commons

Functional overlap with secondary/delegated legislation

• Parliament delegates law-making power to government through Acts.

• Government makes secondary/delegated legislation within limits set by the relevant Act.

• But often powers conferred are very broad (skeleton bills)

• Sometimes legislative power can be scrutinised

  • Some must be approved by Parliament to become law.

  • Parliament can overrule any secondary legislation

  • All is subject to judicial review.

Problems:

• Often made with very little crusting by Parliament → may increase risk of abuse of power.

• But there is some scrutiny in Parliament and a possibility of judicial review, reducing the risk of abuse of power.

Benefits:

• Secondary legislation increases efficiency

  • Parliament does not have time to debate and pass all secondary legislation, so delegation may be necessary for good government.

  • Technical rules can be drafted by specialists i.e. Civil Servants.

Monarch

Legislature:

• Participates in legislation (Royal Assent), exercises Royal Prerogative powers relating to Parliament.

Executive:

• formally head of the executive branch; vested with executive powers Royal Prerogative.

Judiciary:

• Symbolic prescience in ‘His Majesty’s’ courts

But has no real influence so arguably doesn’t undermine the rationales for SoP