A strict separation of powers would lead to a constitutional

deadlock. Nonetheless, there must be an adequate separation of

powers to avoid abuse of power. Discuss this statement with the
reference to the British Constitution.
The British Constitution is in nature largely unwritten and it is
derived from legal sources and non legal sources including political
doctrines. The concept of the rule of law, separation of powers and
parliamentary supremacy runs like a thread through the British
Constitution (Hilaire Barnett). The doctrines of separation of powers play a
fundamental role in the British Constitution and are still practiced to this
very day. The statement suggests that a strict separation of powers is
undesired as it leads to a constitutional deadlock and alternatively, a
complete overlap between the 3 organs of the state will lead to an abuse
of powers. Hence, adequacy of separation of powers is vital in achieving
desired powers concerning the three arms of the state.
This doctrine is traceable to Aristotle and further expanded by and
stressed by Baron Montesquieu. There are 3 organs which are legislative
who makes law, executive who executes and implements the law and
judiciary who plays an important role to apply and declare law. There must
be separate from each other to prevent abuse of power as per Lord Acton
power corrupts and absolute power corrupts absolutely. Besides, Bardley
and Ewing noted that the doctrine may mean at least 3 different things
which are the same person should not form part of more than one of the 3
government, one organ should not control or interfere with the work of
another, and one organ should not exercise the function of another.
However, the modern view by Hiliare Barnett the doctrine is allocated
clearly with check to ensure that no institution encroached significantly
upon the function of the other.
In the UK, and other common law jurisdictions, the executive and
legislature are closely entwined. The Prime Minister and a majority of his
or her ministers are Members of Parliament and sit in the House of
Commons. The executive is therefore present at the heart of Parliament.
By contrast, in the USA, the President may not be a member of the
legislature (Congress), and is elected separately from congressional
elections. This may result in the President being a member of a different
political party from the majority of members of Congress. The UKs
integration of executive and legislature is said to provide stability and
efficiency in the operation of government. It has been described as a
system that intentionally promotes efficiency over abstract concerns
about tyranny. For example, the Prime Minister is usually both head of
the executive branch and leader of the majority party in the legislature,

which gives the executive branch much more freedom of action than a
president usually enjoys in a presidential system of government.
Additionally, the upper parliament, House of Lords is check within
the House of Commons, as they can cause government to modify or
abandon proposed legislation. Under Parliamentary Acts 1911 and 1949,
the HOL has power to amend and delay non-Money bill for 1 year. Besides,
Parliament may delegate law-making powers to the Government through
powers to draft secondary or delegated legislation. This can liberate
Parliament from the need to scrutinise small technical details, while
maintaining the safeguard of Parliamentary approval. But, Chief Justice
Hewart criticised delegated legislation being an abuse of power. However,
DL is necessitated as it can reduce the heavy legislative programme and
provided that parliamentary scrutiny is adequate.
In this way, in the UK legislature and executive are far from separate
powers. On the other hand, the executive presence in Parliament may
actually facilitate scrutiny provided that the necessary procedures are in
place. For example, Question Time can be a powerful procedure for
holding the executive to account, throwing ministers straight into the
lions den of the legislature. Besides The former Prime Minister, Gordon
Brown, set out some of the arguments for the efficiency of a mixed
system. He stated that often happens with the American constitution
when Congress, the Senate and the President cannot agree on what needs
to be done. It took the Americans weeks and months to get those
provisions through their legislature as a result of the issues that arise from
the separation of powers. In order to prevent the executive from
controlling Parliament the House of Commons (Disqualification) Act 1975
created limits on the number of salaried ministers who sit in the
Commons. Additionally, the convention of ministerial responsibility
establishes the accountability of government to Parliament.
The second element of the separation of powers is separation
between legislature and judiciary. In UK the Parliament is sovereign and
that the judiciary is subordinate to the Parliament and there cannot
question the validity of the Act of Parliament once the Royal Assent is
given. However, there have some leeways to give judge to interpret
statute and this raises the question of whether the judges are able to
make law. There is an element of judicial law-making in the evolution of
common law. In Magor and St. Mellons Rural District Council v
Newport Corporation the HOL rejected the approach of Lord Denning
stated that courts should filling the gaps of the legislation. However, Lord
Reid said that while it was once thought almost indecent to said judge
make law, the notions that judges only declare the law was outdated.

Lord Scarman argued a middle course, suggesting that the objective of

judges is the formulation of principles; policy is the prerogative of
Parliament.
The cooperation between judiciary and legislature has been
described as a constitutional partnership as Parliament may give tacit
approval to judge-made law by not interfering with it. Professor
Bogdanor has argued, for example, that the Human Rights Act
necessitated a compromise between two doctrinesthe sovereignty of
Parliament and the rule of lawand that the compromise depends upon
a sense of restraint on the part of both the judges and of Parliament. In
Factortame (no 2) Lord Bridge interpreted the European Communities
Act 1972 to mean that UK statute would not apply where it conflicted with
European law, a significant departure from the principle of Parliamentary
sovereignty. Besides, S 4 HRA 1998 also stated that a court can declare a
statute to be incompatible with the European Convention on Human
Rights and the Government is then obliged by the Convention to rectify
the inconsistency.
Furthermore, the sub judice rule intended to defend the rule of law
and citizens right to fair trial. Where an issue is awaiting determination by
the courts, that issue should not be discussed in the House in any motion,
debate or question in case that should affect decisions in court. However,
the sub judice rules are not absolute one. The 1999 Joint Committee on
Parliamentary Privilege explained that sub judice rules are intended to
strike a balance between two sets of principles. On the one hand, the
rights of parties in legal proceedings should not be prejudiced by
discussion of their case in Parliament, and Parliament should not prevent
the courts from exercising their functions.
The third element of separation is between the executive and the
judiciary. There are several implications for the separation of powers
requires examination. First, the judicial review is a action designed to
ensure that any delegated legislation is consistent with the scope of
power granted by Parliament and to ensure the legality of government
action and the actions of other public bodies. From this perspective, it may
argue that the judges are upholding the will of Parliament in controlling
the exercise power delegated by it own subordinate. Recently, the use of
the judicial review increase considerably by the HRA 1998 and S6 of this
act make it unlawful for any public authority.
The judges have traditionally exercised self-restraint or deference
in the areas of power that they regard themselves as competent to review.
Some uses of the royal prerogative, for example, involve issues of high

policy, such as the appointment of ministers, the allocation of financial

resources, national security, signing of treaties and defence matters and
judges would not usually interfere in these matters. For an example of this
traditional view see the case of GCHQ. More recently, in A v Secretary
of State for Home Department, concerning the detention without
charge of suspected international terrorists in Belmarsh prison, the
Attorney General argued that these were matters of a political character
calling for an exercise of political and not judicial judgment. However,
Lord Bingham, rejected this argument, concluding that the function of
independent judges charged to interpret and apply the law is universally
recognised as a cardinal function of the modern democratic state and
that the Attorney General was wrong to state that it is undemocratic.
In conclusion, the statement above is truly to say that a strict
separation of power can rise deadlock and there must be adequate
separation of powers. The overlaps of powers are inevasible in order to
carry out efficient working of the constitution and certain function.
However, the judiciary have to be independence and it can provide
greater check and balance to avoid an abuse of powers.
http://researchbriefings.files.parliament.uk/documents/SN06053/SN06053.
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