з. THE FUSION OF POWERS
As we saw in Chapter i, Montesquieu based his famous doctrine of the
separation of powers on his understanding of the contemporary eigh- teenthcentury constitution in this country. He was also influenced by the writings of John
Locke, and by Henry St John Bolingbroke, the Tory politician whom he had met
when he visited London in 1729. But the separation of powers, at least as
formulated by Montesquieu, has
21
See V. Bogdanor, 'The Political Constitution' in his collected essays, Politics
and the Constitution (Aldershot, 1996).
The United Kingdom Constitution
35
never really been taken seriously in the United Kingdom. Instead, one of the
principal characteristics of the constitution is said to be the fusion of powers.
Walter Bagehot wrote in a much quoted remark: 'the efficient secret of the English
[sic] Constitution may be described as the close union, the nearly complete fusion,
of the executive and legislative powers.'22 What he meant was that the government,
or executive, is drawn from members of the legislative body, mostly the House of
Commons, to which it is responsible. Equally, the executive is able to secure the
passage of its legislation in normal circumstances by the threat of its head, the
Prime Minister, to dissolve Parliament and call a general election.
Certainly, the United Kingdom constitution does not recognize the pure theory
of the separation of powers as it has traditionally been understood in France. Nor
does it reflect the system of checks and balances incorporated in the Constitution
of the United States, with, for example, Senate control of some executive and
judicial appointments, and judicial review of legislation by the courts. In particular,
as Bagehot emphasized, there is no separation of membership of the legislative and
executive organs, as there is in both the United States and France. A provision in
the Act of Settlement 1701 would have prevented persons holding offices under
the Crown from sitting as Members of Parliament, and thereby have protected the
House of Commons from Crown influence, but it was never implemented. During
the eighteenth century the distinction was drawn between ministers who have been
permitted to sit in the House and civil servants and other officers, e.g. of the armed
forces, who are not. The current law is contained in the House of Commons
Disqualification Act 1975 and the Ministerial and other Salaries Act 1975. A key
provision of the former statute allows no more than ninety-five ministers to sit in
the Commons. That is still about 15 per cent of its total membership; a significant
proportion of Members of Parliament are also members of the executive.
On the other hand, there is a sharper separation of the judicial power. No fulltime judge, whether High Court, circuit court, or stipendiary magistrate, may sit in
the House of Commons, though the principle is compromised so far as the House
of Lords is concerned. Law Lords may speak and vote on legislative measures,
though under a strong constitutional convention no lay peer is entitled to sit with
them when they consider appeals as the Appellate Committee of the House of
Lords, in
22
Bagehot, 65.
An Introduction to Constitutional Lair
effect the supreme court of the United Kingdom. Perhaps of more significance is the role of the Lord Chancellor, who is Speaker of the House
of Lords, a member of the Cabinet, and entitled to sit in the Appellate
Committee of the Lords as a judge. He, therefore, participates in all
three functions of government. His position constitutes a clear violation
of that aspect of the separation of powers, requiring each function of
government to be discharged by a distinct person or institution.
However, the apparently anomalous position of the Lord Chancellor
is more comprehensible if it is seen as a legacy of a traditional understanding of the constitution popular in the seventeenth and eighteenth
centuries.23 Under the theory of balanced government, each part of government, at the time drawn from a distinct social class was able to share
in the performance of several functions. It was not confined to the performance of one of them. The most important illustration of this principle was that the Commons, Lords, and King all participated in the
enactment of legislation. Equally the House of Lords enjoyed legislative
and judicial power, as in certain contexts did the Commons. At the same
time the King's executive powers, in particular to raise money or keep
a standing army, needed the consent of the Houses of Parliament under
the Bill of Rights 1689. The balance of the constitution, and the avoidance of arbitrary government, were under this theory ensured by the
checks that each class, or branch, could impose on the others when they
jointly exercised the same function. It was in a sense a forerunner of
the formal separation of powers found in many modern constitutions, a
separation which is legally enforceable by the courts with powers of constitutional judicial review.24
What has happened over the last century in the United Kingdom has
been a growing imbalance between the branches of government, largely
attributable to the rise of the mass political party system. First, neither
the House of Lords nor the Monarch can be regarded as an effective
check on the House of Commons. As will be explained in Chapter 5,
the House of Lords has lost a significant part of its legislative power.
The Crown's prerogative power to refuse assent to legislation enacted
by Commons and Lords has been limited by the clear convention that
Royal Assent must be given to a Bill which has passed through
Parliament; the Monarch's power to exercise other important prerogatives may now be very limited.25 During the eighteenth and nineteenth
centuries there was a rough balance between the legislature and execu23
See M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford,
1967).
24
See Ch. 1, sects. 3 and 4.
25
See Ch. 6, sects. 2 and 3.
The United Kingdom Constitution
tive, which gradually freed itself during these centuries from the King's
control. The formation and survival of the executive (or government)
depended increasingly on the support of the House of Commons rather
than of the Monarch. In the middle of the nineteenth century in particular, governments often resigned because they were unable to command the shifting loyalties of Members of Parliament.
With increasing party discipline and the perception that the electorate
votes for a party and its programme, the executive is normally able to
control the legislature through the threat to dissolve Parliament and
therefore hold a General Election. If the government is defeated on an
important legislative measure, it can in effect reverse the defeat by
tabling a vote of confidence in the House of Commons. That happened
in July 1993 when the Conservative government lost its motion to bring
the legislation incorporating the Maastricht European Union Treaty
into effect. A number of Conservative dissidents hostile to the
Maastricht Treaty voted with the Opposition. The Prime Minister, John
Major, immediately tabled a vote of confidence which the government
won comfortably, because the rebels were unwilling to precipitate an
election at which many of them would almost certainly have lost their
seats. The episode nicely illustrates the ability of the executive to control Parliament, even over matters of great political and constitutional
controversy. "The United Kingdom not only lacks a clear separation of
legislative and executive institutions, but has lost the balance of powers
which characterized the traditional constitution of the eighteenth and
nineteenth centuries.
Apart from the judicial branch is therefore no strict separation
of institutions in the United Kingdom. But there is to a limited extent
a separation between the three functions of government. The government
is not sharply separated from the legislature, and is now able normally
37
to control it, but it must nevertheless use Parliament to enact general
rules. The origins of this principle can be traced back to the early seventeenth century when, in the Case of Proclamations,26 it was held that
the King was not entitled to change the law by proclamation. (At much
the same time it was also decided he could not sit in the courts.27) It
would have infringed the separation of powers if the Monarch, then the
effective head of the executive power, was able to legislate without
resource of Parliament. The provisions in the Bill of Rights 1689 which,
among other things, outlawed the power of the Crown to impose
26
27
(1611) 12 Co. Rep. 74.
Prohibitions del Roy (1607) 12 Co. Rep. 63.
taxation without the consent of Parliament and its power to suspend
legislation also illustrate the separation of functions. Any attempt by the
executive to exercise these powers would amount to a trespass on the
functions of the legislature.
The requirement that general rules made by the legislature is an
important one, even though the government controls the Parliamentary
timetable, can secure the passage of its own measures, and may block
any attempt by a back-bencher to introduce a Bill. The parliamentary
process subjects legislation to public debate and scrutiny, and it affords
the possibility of amendment under pressure from concerned individuals and interest groups. In this respect, the separation of powers principle reinforces an aspect of parliamentary legislative supremacy: the
Crown cannot set itself up as a body with rival legislative powers.
However, the principle of the separation of functions is not always
followed rigorously in the United Kingdom, or for that matter in other
countries. Acts of Parliament and of, say, the United States Congress frequently delegate broad rulemaking powers to the executive. Exceptionally
wide powers are delegated in war-time and other emergency periods.28 But
even in normal circumstances ministers and executive agencies are given
delegated legislative powers to supplement or fill in the details of statutes.
Parliament may even give ministers power to make regulations which
amend Acts of Parliament; these provisions are sometimes known as
'Henry VIII clauses' after the autocratic Tudor monarch.29 Delegated legislation contravenes the strict separation of legislative and executive functions, but there are many practical arguments in favour of it: the difficulty
of finding adequate Parliamentary time for the enactment of legislation,
the need to avoid excessively detailed and complex legislation, and the
flexibility which comes from the power of ministers to amend statutes.
What is important is that there is provision for scrutiny of delegated
legislation by Parliament. Regulations made by ministers are usually issued
subject to annulment by resolution of either House of Parliament, but on
occasion must be approved by affirmative resolutions of both. Further, the
courts may review regulations to ensure that the executive has not
exceeded its power to make delegated legislation.
The separation of functions is also blurred when judicial functions are
given to administrative tribunals or authorities. For instance, decisions
28
Ch. 9, sect. 2.
For delegated legislation, see H. W. R. Wade and C. F. Forsyth,
Administrative Law (7th edn., Oxford, 1994), ch. 22, and P. P. Craig,
Administrative Law (3rd edn., London, 1994), ch. 7.
29
The United Kingdom Constitution
on entitlement to social security benefits are taken by specialist adjudication officers with appeal to a tribunal, while many decisions concerning immigrants are appealable to independent adjudicators and then to
an Immigration Appeal Tribunal. Arguably these are judicial functions
which belong to the courts, but there are practical arguments for assigning them to administrative tribunals. Such bodies generally adopt a more
informal procedure than the ordinary courts; perhaps as a result, they
are relatively inexpensive to both tax-payers and litigants. They develop
an expertise within their particular area of competence. We will see in
Chapter 7, however, that the judges are normally anxious to preserve
their jurisdiction in, civil liberties cases and to protect the right of individuals to challenge administrative decisions in the courts. They rightly
consider it important to prevent the total usurpation of the judicial function by the executive, for that would be a significant step in the direction of arbitrary or totalitarian government.
The high-water mark of this aspect of the separation of powers principle came in a decision of the Privy Council, Liyanage v. The Queen,
discussed more fully in Chapter 7. After an unsuccessful coup parliament of Ceylon (now Sri Lanka) enacted legislation specifically to deal
with the chief participants; among other things it retrospectively created
new offences, instituted a special tribunal to try them, and altered the
normal rules of evidence. The Privy Council held these provisions violated the separation of powers principle, which was implicit in the structure of the constitution of Ceylon. (Liyanage) was a Privy Council
decision, and so it is not binding on the English and Scottish courts
when they decide a point of constitutional law. Strict application of the
principle of parliamentary legislative supremacy would probably require
an English court to enforce the most monstrous retrospective legislation,
including a measure akin to that struck down in Liyanage.31
It is in fact hard to reconcile the legislative supremacy of Parliament
39
with any strong commitment to the separation of powers principle. For
that reason it is difficult to take too seriously Lord Diplock's view that
the constitution is based on it.32 At most it is a principle which has influenced aspects of the United Kingdom constitution, in particular the
independence of the judiciary. In contrast to other countries, notably the
30
[1967] AC 259.
See Allan, n. 20 above, ch. 3, for the view that English courts should disallow
legislation which usurps the judicial power.
32
Duport Steels v. Sirs [1980] 1 WLR 142. Sir John Donaldson has described
the principle as a constitutional convention: R v. HM Treasury, ex parte Smedley
[1985] QB 657.
31
An Introduction to Constitutional Law
40
United States, it would be hard to conclude that the separation
principle has exercised a decisive influence on the development of the
constitution in general or on the treatment of major constitutional
cases. If, as was argued in Chapter I, the separation of powers is a fundamental principle of a liberal constitution, its weak status in the United
Kingdom brings out much of what is inadequate in the present arrangements—their failure to impose significant checks on the conduct of government.