Law Sessions With Jennifer Housen’s Podcast

Separation of Powers: Checks and Balances in Democratic Governance

Subscriber Episode • • Jennifer Housen • Season 2 • Episode 1

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We explore the constitutional principle of separation of powers, examining its historical development and application within the UK's system of governance. This doctrine divides state authority among the executive, legislature, and judiciary to prevent power concentration and protect democratic freedoms.

• Separation of powers (trias politica) originated in ancient Greece and was widely used in the Roman Republic
• The UK demonstrates a fusion of powers rather than strict separation, particularly between executive and legislature
• The judiciary maintains independence as a crucial element of constitutional balance
• Constitutional developments like the Human Rights Act 1998 and Constitutional Reform Act 2005 have strengthened separation
• Statutory interpretation raises questions about potential judicial lawmaking
• Preventing concentration of power protects against tyranny and safeguards individual liberty
• John Locke warned about combining lawmaking and law-enforcing powers in the same hands
• Each constitutional organ should serve as a check and balance on the others


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Music. Welcome to Law Sessions. I am Jennifer Olson. In this Law Session, we'll focus on public law and, and, in particular, the area of separation of powers. Now, the concept of separation of powers certainly has overlapping implications when you look at, for example, the rule of law, and certainly when you look at parliamentary sovereignty. What you need to do, though, is to get some understanding of what the separation of powers is, and that is pretty much what we will look at throughout this lecture.

Speaker 1:

Well, the starting point is that the separation of powers is also known as trias politica, and what it is is a model for the governance of democratic states, and what it does involve is a tripartite framework, wherein you are looking at the organs of the state in three discrete areas. Now, the model was first developed in ancient Greece, and it came into widespread use by the Roman Republic as part of the uncodified constitution of the Roman Republic. Now, under this model, the state is divided into branches or estates, and each has a separate and independent power and area of responsibility. Now, the normal division, of course, of these estates is based upon the one arm being the executive, the one arm being the legislature and, of course, another being the judiciary. Now, briefly, the idea is that the executive puts laws forward, so they're basically the policy makers, so they put laws into effect and plan policy, so they seek to formulate that. It is the legislature who then makes the laws and finally, it is the judiciary who then seeks to interpret the laws as has been made by the legislature. Now, the opposite of separation of powers, of course, is fusion of powers, and we see that, as it relates to separation of powers, it tends to have a little bit more clarity when you look at presidential systems, for example, like the USA, whereas when you look at the fusion of powers, this is often a feature of parliamentary democracies where, for example, the Westminster model is firmly in place. Now, when one looks at the fusion of powers, this is where, for example, you see the executive, and the executive, of course, normally consists of the prime minister and the cabinet, which is normally called the government, and they tend to be drawn from the legislature. So, with fusion, you see the executive being part of the legislature, meaning part of parliament. Now, in the UK, the crown is also a part of the executive.

Speaker 1:

Now, although there are several examples of fusion of power within the British constitution, there seems to be some degree of confidence, not least on the part of the commentators and certainly on behalf of the courts, that there is still separation of powers. So, whereas you get this criticism that separation of powers is somewhat lacking, we do see historically that there has been this feel, this view that, all in all, separation of powers is still very much alive. So, for example, lord Diplock, in the case of DuPort Steel in 1980, was of the view that the British Constitution is firmly based upon the separation of powers. He goes on to say Parliament makes the laws, the judiciary interprets them. Now Sir John Donaldson took the same position in the case of the Crown and Her Majesty's Treasury, ex Parte Smedley, in 1985, and equally, lord Justice Nolan in him and the Home Office considered that the proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, meaning, of course, within the executive's lawful province, and that the executive will respect all decisions of the court as to what its lawful province is.

Speaker 1:

Now, when you look at, for example, the question of separation of powers, the idea that you should always be mindful of, as a law student, of course, is what are the overlaps, as a law student, of course, is what are the overlaps? So what you need to know, of course, is distinctly what are the roles and functions of the executive, what are the roles and functions of the legislature, what are the roles and functions of the judiciary? But then, of course, you need to know how does the legislature overlap with the judiciary, how does the legislature overlap with the executive, and how does the executive and the judiciary overlap? So you need to be mindful of those because, frankly, when one looks at separation of powers as an exam question, the only thing that an examiner can really truly ask you is whether or not there is true separation, however he words it, and then for you to see what the shortcomings are. Now, in the case of RV, secretary of State of the Home Department, ex parte fire brigade's union in 1995, it was held that the executive had no power to ignore legislation. And one of the features of separation of powers as well is to consider other issues, for example the incorporation of the European Convention on Human Rights. You have to take that on board, as well as the human rights at 1998 and, of course, the constitutional reform at 2005 and subsequent apparent constitutional acts, meaning acts which have some constitutional significance. All of these, whether it be the impact of the HRA, the EU membership or indeed subsequent acts, have led to a somewhat more systematic reorganization of the UK Constitution and have led somewhat to a true separation of powers.

Speaker 1:

Now, statutory interpretation, of course, may impact on the separation of powers and we will, of course, look at that later on. But the idea is that when you look at statutory interpretation, you see the judges, the judiciary, interpreting the law, statutory interpretation. And when one considers a case like the Crown and Birstow and also the Crown and Ireland, there's an implication that the courts were possibly involved in lawmaking to the extent that they were taking over some of the functions of Parliament. And again, we will look at certain cases later on to see is this really true or is it that Parliament allows it? Now, if it is that you have a situation where a court, for example, is making law, then this appears contrary to the doctrine of separation of powers.

Speaker 1:

Now, when you look at the doctrine of separation of powers and the role it plays in the United Kingdom's constitution, it is generally considered that the doctrine is somewhat weak and we see this sort of criticisms coming from commentators, not least AV Dice himself, suggesting that there is a weak basis, not least because of the parliamentary democracy framework. Now, the fact is that when you look at the framework itself, it may be considered weak, but it does appear that the weakness is founded more or less on the style, which is the Westminster model, rather than in practice. So it's not saying it's weak generally, it's just saying based on how you look at, for example, the executive being drawn from the parliament, then that of course appears to compromise it. Now, the whole idea of separation of powers is responsible government and although the legislative and the executive branches are connected in the parliamentary system, in the Westminster model you will always tend to see an independent judiciary. Equally, the government's role in parliament does not give them unlimited legislative influence. Now let me clarify when I talk about government, I want you, as the law student, to bear in mind that the word government, as I shall use it, means the executive. So the prime minister, the cabinet ministers and the crown in parliament is what I'm speaking of here, because when people talk about government, there's this misunderstanding that it is the ruling party, for example. But legally, what we're looking at here is government being the executive, the prime minister, cabinet members, the queen. Now, just because they are in parliament, does that mean that they will have unlimited legislative influence? That's not the point. Parliament is still there in order to legislate. Now, the elected government of the day is accountable to parliament, which has the ultimate power to dismiss it and also to force an election.

Speaker 1:

Why is it that separation of powers is so important? Well, the importance of any democracy adhering to the doctrine of separation of powers is so that there is an avoidance of an over-concentration of power in any one institution of the state, because it was famously said that it really would be too much for human frailty for all the organs of the state to be contained in one body, as it were. So, literally, you can't be, or shouldn't be, judge, jury and executioner. It really should be, for checks and balances, for it to be transparent, that it ought to be separated. It is therefore necessary, then, that personnel, the people involved and the functions, what they do, are distributed among the three institutions and that their roles and functions are clearly defined, in order that those who exercise the powers under the constitution are therefore accountable to the citizens.

Speaker 1:

Now, john locke in the 17th century, writing in the 17th century on the separation of powers, and he is what you would consider the father of liberalism, and he really was a believer in the importance of not get into one hand. It may be too great a temptation to human frailty, as I mentioned before, apt to grasp at power for the same persons who have power to make laws to also have power to execute them. He said the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny. Equally, when we look at the Madison Federalist Papers, which is a series of 85 papers which advocated a ratification of the US Constitution, we see that the doctrine has developed and is more or less large, as summarized as there being the three organs with separate functions, as we've mentioned, and each organ, of course, is vested with their specific function, with the idea that there really ought not to be any overlap and each should act as a check and balances on the other. Now, of course, concentrating power or more than one function in any one organ of the state would certainly appear to be a threat to individual liberty. And of course, we'll touch on cases later on where we have seen, like, for example, antigone Carrington, which we'll come back to Now.

Speaker 1:

In the UK, the position of the three functions tend to be as follows we start off with the legislature. Well, the legislature consists of parliament, which is the House of Commons, and the House of Lords and the Queen. Now, who makes up these organs? As I say, you're starting with the legislature House of Commons, house of Lords. When you look at the executive, it is the government, which is the Prime Minister and Cabinet Ministers. But a wider definition of government will also, under the executive, include the civil service. But when we talk about the government in a narrow sense, then of course we exclude the civil service. And lastly, of course, we have the judiciary, which consists of judges and magistrates. We will now take a short break, of course, and as soon as we get back I will continue uncertainly looking at what Montesquieu said in relation to separation of powers, and we will, of course, explore the doctrine in some more detail.