Law Sessions With Jennifer Housen’s Podcast

The Balancing Act: Separation of Powers in the UK

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

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We explore the complex reality of separation of powers in the UK, focusing on the overlaps between the legislature, executive, and judiciary that challenge Montesquieu's traditional vision.

• The judiciary serves as an important check and balance but lacks the power to strike down laws unlike the US Supreme Court
• UK has a bicameral parliament with the House of Commons (elected MPs) and the House of Lords (appointed members)
• The Lord Chancellor historically violated separation principles by having roles in all three branches until the Constitutional Reform Act 2005
• The executive effectively controls the legislature through party discipline in the first-past-the-post system
• This arrangement has been criticized as an "elective dictatorship" where governments with majorities dominate parliament
• Ministers can create legally binding statutory instruments through delegated legislation, blurring the line between executive and legislative powers
• The UK maintains parliamentary sovereignty while allowing for judicial independence


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

Speaker 1:

Welcome back to the second segment of this public law session in relation to separation of powers. Now, before the break, we were discussing separation of powers and we considered the three organs of the state when you look at separation, and we also considered the contrast, which is fusion of power. Now, I said to you when we returned we would start off by looking at what Montesquieu considered, and not merely apparent. Now, the judiciary is generally seen as the most important of the powers, not least because its independence is such that it allows for checks and balances. Now, we will see, of course, in the UK that that does cause a little bit of a problem, because even when the judiciary consider laws, it is not like, for example, the US, where you can strike down or the Supreme Court can strike down laws on the basis that it is unconstitutional. But the judiciary is generally seen as the most important of powers because it is independent and it does act as a check. Well, the UK's reality, when you look at the separation of powers, is that there is the legislature, as I said in the last segment, which is made up of the House of Commons, the House of Lords and the Queen, and Parliament has two debating chambers the Commons, which is the lower house, and the Lords, which is the upper house. Now, that means that the UK has what is called a bicameral chamber. Now, members of the House of Commons are elected members of Parliament, and you tend to find that you have persons going to the poll in a constituency. They elect their member of parliament. Now, it is within this that we get the component of the cabinet being, of course, the executive, which sits there as well. Now, the House of Lords, which is the upper house, used to be made up of key members of the judiciary, but that was only up until September 2009, of course, when there was an oil change and we saw the rollout of the brand new Supreme Court.

Speaker 1:

Now, what is interesting is the fact that the body which appoints judges, which is now the Judicial Appointments Commission, does fall under the Ministry of Justice's remit. So what I want to flag up for you here is that, if we're looking at the independence of the judiciary or we're looking at true separation of powers, is this greater true separation? Now, one of the things is I want you to consider does true separation mean that that is the best thing? Because, if you can remember, a few years ago, for example, in the United States, when President Obama was looking to bring on board President Obama was looking to bring on board the female appointee for the Supreme Court, we did see, for example, that there was some issues with Congress, not least because she had made some comments relating to you know who should sit, or that the fact that they didn't understand certain members of society or certain sections of society. The point, of course, is that we see here that the Judicial Appointments Commission does fall under the Ministry of Justice, but that may not be an entirely bad thing, even though there may be a criticism as to whether it is independent or not. Now we see that there have been a raft of reforms recently and if we take a quick look back, for example, we do see some changes, which included the recent changes in the Constitutional Reform Act of 2005, which has somewhat transformed the legislative, judicial and executive functions of the office of the Lord Chancellor, because what happened before was that the Lord Chancellor was one of the biggest culprits, as it were, in relation to the separation of powers, and what we had was that the Lord Chancellor was the one where there was a magnificent overlap into all three areas. So we see that the Lord Chancellor was sitting in, for example. He had a foot in the executive, he had a foot in the legislature, he had a foot in parliament, and so, of course, it seemed somewhat to go against the grain.

Speaker 1:

Now, when you look at the UK system of government, the idea is that, as I mentioned in the last segment, you focus on the overlaps, you focus on what are the issues which affect separation of powers. Now, I want us to consider it in the three aspects of course legislature, executive. In the three aspects, of course Legislature, executive, executive, judiciary, legislature, judiciary. And the first one I want to start off with is the legislature and the executive. I want us to consider what are the dynamics which operate when you consider the legislature in England, which is parliament, together with the cabinet, which is the executive, because you need to, as I say, consider what the legislature do, which is to make laws. But the executive, the policymakers, what are the issues?

Speaker 1:

Well, when you look at the sovereign, the sovereign is, of course, the head of the executive, but the sovereign is also an integral member of the legislature, although the sovereign's powers are theoretical rather than real, meaning that what you have is a constitutional monarch In the UK. You don't have an absolute monarchy and, as such, it is the legislature which really drives the issues in relation to the UK and certainly in the framework of this tripartite relationship. So, when you look at, for example, an act which becomes law, yes, the queen or the monarch at the time gives royal assent, but it is highly unlikely that such consent will be withheld. Which is why I say, when you look at the legislature in the context sense and they of course must be members of the House of Commons or, of course, the House of Lords by constitutional convention. However, members of the executive in the wider sense are often barred by acts of parliament from being members of parliament. So, for example, if you're a member of the civil service or the armed forces or the police, you tend not to be able to sit as an MP. Equally, if you're allowed to sit in the House of Lords, you tend also to be disqualified from sitting in the House of Commons.

Speaker 1:

Now, the legislature, as I say, is the very heart of the whole relationship, because it is what the legislature says and certainly when we explore this more in the lecture on the parliamentary sovereignty, this of course will make it a lot more clearer. But for our purposes, the legislature is the most important organ in this framework in the UK anyway, because it is the legislature which ultimately controls the executive. And when we look at the executive, the government, they may put forward policy. But if it is, for example, when we look at prerogative powers, executive powers, if for example there's an executive power which needs curtailing, the legislature can curtail it. So it is the legislature which acts as some sort of ultimate control on the executive. Because when you look at the legislature's power, it can oust a government by withdrawing its support. So, for example, a vote of confidence in the government or a vote of no confidence in the government or vote of no confidence in the government would suggest that the government, meaning the Prime Minister and the cabinet, will have to go if Parliament has voted that they need to.

Speaker 1:

However, again, this appears a larger theoretical point, given the current electoral system. When you look at the current electoral system in the UK, the first past the post, it usually guarantees that one of the main political parties will be elected to office with a comfortable working majority in the House of Commons, without polling an overall majority of the votes cast. So basically, you're looking at who gets the most votes, as it were, but it may very well be that no single party gets the majority, and certainly, as we saw in 2010, there is currently a coalition government simply because there was no one party that polled the majority of the votes. Now, when you look at the party discipline in relation to the first past, the post framework, and certainly when you look at parliamentary democracies, party discipline is such that a government with an overall majority effectively controls parliament, and this, of course, represents a major overlap the fact that the executive in reality, dominates the legislature. Now it has been referred to as an elective dictatorship.

Speaker 1:

In addition to this, an act of parliament may empower a minister to issue statutory instruments. Now, even though the authority is from the statute, when you have a statutory instrument, which is, of course, from the statute, when you have a statutory instrument, which is, of course, a legal instrument, which is legally enforceable in a court, we can see that a statutory instrument may give a minister the power to make certain types of legislation, delegated legislation. So let's say, for example, you have a municipality and that municipality may, for example, be allowed particular powers under an act a parent act or what is called an enabling act to allow that municipality to make certain local laws. Now by giving the minister responsible those powers, you have effectively given the executive lawmaking powers, as it were. So the idea is that that does operate as a major overlap.

Speaker 1:

Now, giving that empowerment to act is giving it the same or almost the same powers as the legislature. Now that can be countered by saying that the legislature does have final control over how delegated legislation is dealt with and certainly, as we will also later explore in other lectures, you will see that delegated legislation can certainly be challenged, whereas an act of parliament can't. Certainly it can be challenged. So that does also act as a check and balance on that. As I say, you must know the overlaps of the organs, because these overlaps tend to be very, very important. And having explored initially that first overlap in relation to the executive and the legislature, I would urge you to also consider the executive and the judiciary, and the legislature and the judiciary, which we of course will do. We will now, of course, take a short break. When I come back, I will summarize briefly and then we will also look at the other overlaps in respect of the three organs of the state.