Montesquieu once linkedthe separation of powers with liberty, stating that “When the legislative andexecutive powers, are united into the same person or in the same body ofmagistrates, there can be no liberty”1.
Hewas a firm believer that the separation of powers should be pure. Despite this,several models are present in this day such as pure, partial and parliamentary.Separation of powers can be called the way that the ‘power’, exercised by thestate, is divided into several bodies. Historically, the powers in the UnitedKingdom were not separated strictly but partially.
However, the pure separationof powers has been formally embraced nowadays.Separation of powerswas not invented by Montesquieu, but it was John Locke who introduced thisconcept. He separated the power of the state into two bodies, Legislative andExecutive called the Bipartite Separation. It was more than 60 years later thatthe French Philosopher Montesquieu added a third party into Locke’s model, theJudicial and it is since called the Tripartite Separation. The legislative bodyis the one that enacts general rules, determines the structure and powers ofpublic authorities and regulates the conduct of citizens and privateorganizations.
It can be called the law-making body and part of it are theHouse of Lords and House of Commons. The executive body initiates andimplements the legislation, maintains order and security, promotes social andeconomic welfare and conducts the external relations of the state. It consistsof all the institutions concerned with the implementations of the laws, centraland local government and the armed forces. The last body of the TripartiteSeparation of powers is the Judiciary.
It is composed of judges mostly,exercised in civil and criminal courts and its role is to determine disputedquestions of fact and law, in accordance with the law laid down by theparliament. Unlike most countries,United Kingdom’s constitution can be characterized as unwritten or uncodified. Thereis not a single legal document containing laws and the whole constitution.British constitution has evolved over a long period of time and therefore cases,statutes and conventions can be a part of their constitution. One of thefundamental principles of that constitution would be the Rule of Law.
The keyidea for this theory is that rulers and ruled should both be treated equally. AsTom Bingham said, “In a world divided by nationality, race, colour, religionand wealth, the rule of law is one of the greatest unifying factors, perhapsthe greatest”2.The Rule of Law was created in order to demonstrate that no one is above thelaw and that the law must always be applied. One other principle ofthe United Kingdom’s constitution would be the Parliamentary Sovereignty. Accordingto the constitutional theorist A.
V Dicey, “The principle of Parliamentarysovereignty means namely, that Parliament thus defined has, under the English constitution,the right to make or unmake any law whatever: and, further, that no person orbody is recognised by the law of England as having a right to override or setaside the legislation of Parliament”3 Thereforeparliament is the supreme power in the United Kingdom’s constitution, and canby enactment enforce or amend any laws, in any way they want. Separation of Powersand Rule of law have both played a major part in the R (on the application ofEvans) v Attorney General case. Mr Evans who was a journalist, requested someinformation under the freedom of information act 2000(FOIA).
The informationEvans requested, was various communications between the Prince of Wales and numerousgovernment departments about some environmental causes. Initially thegovernment departments denied disclosure and their decision was also upheld bythe Information Commissioner. Mr Evans appealed to the Upper Tribunal where thecourt held that it was to the public interest for some of the information to bedisclosed. Subsequently, the Attorney General issued a certificate which hadthe effect of a veto on the decision of the Upper Tribunal. Mr Evans thenappealed for a judicial review.
Noticethat the High Court rejected Mr Evan’s appeal, but the Court of Appealoverturned the decision as the Attorney General did not have any reasonablegrounds to reach to his decision. Lastly, the Supreme Court dismissed theAttorney General’s appeal and held for the documents to be made public. Theleading judge, Lord Neuberger focused more on the constitutional aspects of thedecision, namely the rule of law and separation of powers saying: “Basicprinciple that a decision of a court is as binding as between the parties andcannot be ignored or let aside by anyone including the executive”4.
Whilstthe court accepts that a statute could give a member of the executive authorityto override a decision, it must be written in crystal clear and there must bereasonable grounds. The issue was not only that the court’s decision was notclear at all and that the Attorney General did not have any reasonable groundsto veto the court’s decision, but also there was a complication regarding therule of law and the separation of powers. The court’s decision should be binding,and no one should be allowed to overturn it like the Attorney General tried todo. Moreover, as the parliament has enforced statutes for judicial decisions tobe overturned by a member of the executive and the Supreme court demonstrated adefinite stance against the government’s power to interfere within thedecisions of the judiciary, the parliament’s sovereignty theory has beenterminated in this particular case. The case of R (On theApplication of Miller) v Secretary of State for Exiting the European Union5, isanother case which illustrates the constitutional principles. A wide referendumtook place in the United Kingdom with the majority of votes, being in favour ofexiting the European Union while Scotland and Northern Island chose to remain. Thegovernment sought to notify the EU institutions of their intention to exit theUnion. The government’s act was based on Article 50 of the EU treaties (treaty) which states that “Any member state may decide to withdraw from theunion in accordance with its own constitutional requirements”6.
The government was then challenged to lawfully use article 50 in the absence ofan authorising statute using the royal prerogative. Usually the governmentministers have the power to terminate treaties without any legislative orjudicial review7however, the article can only be used if the Parliament agrees8.Although under normal conditions, making and unmaking treaties is a Crownmatter, in the Article 50 there is a rule stating that the Crown cannot make orunmake any treaty unless the Parliament interveners9. It follows that the notice which theparties are issuing, cannot be withdrawn under this article.
Therefore,the government when sought the right of the prerogative it would be costing theParliament some of their rights. The High Court followed the usual procedure ofinterpreting statutes against constitutional principles. This is a procedurefollowed by the courts, applying the principle of legality10.The decision of the High Court was that ministers could only issue a noticewithdrawal from the EU with prior legislation passed by the Parliament. Thus,the parliament sovereignty had been proved, as the legislative could not exitthe Union without the Parliament’s approval. Inconclusion, as John Locke said, “Where ever law ends, tyranny begins”11. The powers must remain separated in order fordemocracy to thrive and remain intact. Lastly not a single body or person mustbe in possession of one or more powers.
The separation of powers as proven inthe two cases mentioned, is undoubtedly a guiding principle in the UnitedKingdom’s Constitutional arrangements.1TheSpirit of the Laws (1978) Book II, Chapter 62 TomBingham, The rule of Law 3 AVDicey Introduction to the Study of the Law of the Constitution (1885) 4 R(Evans) v Attorney General (2015) parag.52 5 6 R(Miller and Dos Santos) v Secretary of State for Exiting the European Union2016 EWHC 2768 (Admin), before the Lord Chief Justice Thomas of Cwmgiedd, SirTerence Etherton Master of the Rolls and Lord Justice Sales.7 EU Referendum Results, supra note1; see Miller, 2017 UKSC5 at 558 2017 UKSC 5 (appeal taken from N. Ir.
,Eng., and Wales) 1219 R(Miller and Dos Santos) v Secretary of State for Exiting the European Union2016 EWHC 2768 (Admin), before the Lord Chief Justice Thomas of Cwmgiedd, SirTerence Etherton Master of the Rolls and Lord Justice Sales32.10 Rv Secretary of State for the Home Department, ex p Simms 2000 1 AC 115, citedibid at 83. See also 84 responding to the government’s argument that theonus should fall rather on the claimants to show express language in the ECAremoving the Crown’s foreign affairs prerogative in the EU context11John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge1988), p. 400