Montesquieu the armed forces. The last body of

Montesquieu once linked
the separation of powers with liberty, stating that “When the legislative and
executive powers, are united into the same person or in the same body of
magistrates, there can be no liberty”1. He
was 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 the
state, is divided into several bodies. Historically, the powers in the United
Kingdom were not separated strictly but partially. However, the pure separation
of powers has been formally embraced nowadays.

Separation of powers
was not invented by Montesquieu, but it was John Locke who introduced this
concept. He separated the power of the state into two bodies, Legislative and
Executive called the Bipartite Separation. It was more than 60 years later that
the French Philosopher Montesquieu added a third party into Locke’s model, the
Judicial and it is since called the Tripartite Separation. The legislative body
is the one that enacts general rules, determines the structure and powers of
public authorities and regulates the conduct of citizens and private
organizations. It can be called the law-making body and part of it are the
House of Lords and House of Commons. The executive body initiates and
implements the legislation, maintains order and security, promotes social and
economic welfare and conducts the external relations of the state. It consists
of all the institutions concerned with the implementations of the laws, central
and local government and the armed forces. The last body of the Tripartite
Separation of powers is the Judiciary. It is composed of judges mostly,
exercised in civil and criminal courts and its role is to determine disputed
questions of fact and law, in accordance with the law laid down by the
parliament.

Unlike most countries,
United Kingdom’s constitution can be characterized as unwritten or uncodified. There
is 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 the
fundamental principles of that constitution would be the Rule of Law. The key
idea for this theory is that rulers and ruled should both be treated equally. As
Tom Bingham said, “In a world divided by nationality, race, colour, religion
and wealth, the rule of law is one of the greatest unifying factors, perhaps
the greatest”2.
The Rule of Law was created in order to demonstrate that no one is above the
law and that the law must always be applied.

One other principle of
the United Kingdom’s constitution would be the Parliamentary Sovereignty. According
to the constitutional theorist A. V Dicey, “The principle of Parliamentary
sovereignty 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 or
body is recognised by the law of England as having a right to override or set
aside the legislation of Parliament”3 Therefore
parliament is the supreme power in the United Kingdom’s constitution, and can
by enactment enforce or amend any laws, in any way they want.

Separation of Powers
and Rule of law have both played a major part in the R (on the application of
Evans) v Attorney General case. Mr Evans who was a journalist, requested some
information under the freedom of information act 2000(FOIA). The information
Evans requested, was various communications between the Prince of Wales and numerous
government departments about some environmental causes. Initially the
government departments denied disclosure and their decision was also upheld by
the Information Commissioner. Mr Evans appealed to the Upper Tribunal where the
court held that it was to the public interest for some of the information to be
disclosed. Subsequently, the Attorney General issued a certificate which had
the effect of a veto on the decision of the Upper Tribunal. Mr Evans then
appealed for a judicial review. Notice
that the High Court rejected Mr Evan’s appeal, but the Court of Appeal
overturned the decision as the Attorney General did not have any reasonable
grounds to reach to his decision. Lastly, the Supreme Court dismissed the
Attorney General’s appeal and held for the documents to be made public. The
leading judge, Lord Neuberger focused more on the constitutional aspects of the
decision, namely the rule of law and separation of powers saying: “Basic
principle that a decision of a court is as binding as between the parties and
cannot be ignored or let aside by anyone including the executive”4. Whilst
the court accepts that a statute could give a member of the executive authority
to override a decision, it must be written in crystal clear and there must be
reasonable grounds. The issue was not only that the court’s decision was not
clear at all and that the Attorney General did not have any reasonable grounds
to veto the court’s decision, but also there was a complication regarding the
rule 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 to
do. Moreover, as the parliament has enforced statutes for judicial decisions to
be overturned by a member of the executive and the Supreme court demonstrated a
definite stance against the government’s power to interfere within the
decisions of the judiciary, the parliament’s sovereignty theory has been
terminated in this particular case.

The case of R (On the
Application of Miller) v Secretary of State for Exiting the European Union5, is
another case which illustrates the constitutional principles. A wide referendum
took place in the United Kingdom with the majority of votes, being in favour of
exiting the European Union while Scotland and Northern Island chose to remain. The
government sought to notify the EU institutions of their intention to exit the
Union. 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 the
union in accordance with its own constitutional requirements”6.
The government was then challenged to lawfully use article 50 in the absence of
an authorising statute using the royal prerogative. Usually the government
ministers have the power to terminate treaties without any legislative or
judicial review7
however, the article can only be used if the Parliament agrees8.
Although under normal conditions, making and unmaking treaties is a Crown
matter, in the Article 50 there is a rule stating that the Crown cannot make or
unmake any treaty unless the Parliament interveners9. It follows that the notice which the
parties are issuing, cannot be withdrawn under this article. Therefore,
the government when sought the right of the prerogative it would be costing the
Parliament some of their rights. The High Court followed the usual procedure of
interpreting statutes against constitutional principles. This is a procedure
followed by the courts, applying the principle of legality10.
The decision of the High Court was that ministers could only issue a notice
withdrawal from the EU with prior legislation passed by the Parliament. Thus,
the parliament sovereignty had been proved, as the legislative could not exit
the Union without the Parliament’s approval.

In
conclusion, as John Locke said, “Where ever law ends, tyranny begins”11. The powers must remain separated in order for
democracy to thrive and remain intact. Lastly not a single body or person must
be in possession of one or more powers. The separation of powers as proven in
the two cases mentioned, is undoubtedly a guiding principle in the United
Kingdom’s Constitutional arrangements.

1The
Spirit of the Laws (1978) Book II, Chapter 6

2 Tom
Bingham, The rule of Law

3 AV
Dicey 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 Union
2016 EWHC 2768 (Admin), before the Lord Chief Justice Thomas of Cwmgiedd, Sir
Terence Etherton Master of the Rolls and Lord Justice Sales.

7 EU Referendum Results, supra note
1; see Miller, 2017 UKSC
5 at 55

8 2017 UKSC 5 (appeal taken from N. Ir.,
Eng., and Wales) 121

9 R
(Miller and Dos Santos) v Secretary of State for Exiting the European Union
2016 EWHC 2768 (Admin), before the Lord Chief Justice Thomas of Cwmgiedd, Sir
Terence Etherton Master of the Rolls and Lord Justice Sales32.

10 R
v Secretary of State for the Home Department, ex p Simms 2000 1 AC 115, cited
ibid at 83. See also 84 responding to the government’s argument that the
onus should fall rather on the claimants to show express language in the ECA
removing the Crown’s foreign affairs prerogative in the EU context

11
John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge
1988), p. 400