(3) Division of Functions

Question 1

What did Lord Mustill suggest in the Fire Brigades Union Case?

Answer 1

He suggested that the function of the branches of government in the UK are fairly self-evident and uncontroversial – the legislator (parliament) make law, the executive (government) administer it and the judiciary (courts) adjudicate over it.

Question 2

Is the division of government functions as clear as Mustill suggests?

Answer 2

No, for instance, the legislator has functions beyond simply making the law. Indeed, Parliament also scrutinise and endorse (or otherwise) the activities of the executive branch. Without Parliamentary support may of the proposals made by the executive will not come into force.

Question 3

What did Bagehot say about the broader powers of Parliament?

Answer 3

Bagehot acknowledged such a situation, remarking ‘[t]he legislature chosen, in name, to make laws, in fact finds its principal business in making and keeping an executive’.

Question 4

How has the overlap of government functions led to criticisms of the separation of powers theory?

Answer 4

Some writers criticised the separation of powers theory for being misrepresentative or misaligned to the practical reality of systems. Indeed, some suggest the theory lacks coherence as a result.

Question 5

What did Ivor Jennings say about the overlap of government functions?

Answer 5

Ivor Jennings criticised the separation of powers theory on this ground – arguing that no principled line could be drawn between what governmental activities could be called executive, legislative or judicial.

Question 6

How does delegated legislation create further overlap between the legislative and executive branches?

Answer 6

Given the time constraints applicable to Parliament Primary legislation often provides only a broad framework or overview for legislation – clauses are then inserted enabling ministers to fill out the remaining details. These rules or regulations introduced by ministers providing more depth and detail to the Act are known as delegated legislation.

Question 7

What is the first means of limiting the law-making power of the executive through delegated legislation?

Answer 7

1. The Statutory Instruments Act 1946 sets out two procedural requirements for delegated legislation that enable parliamentary scrutiny of the legislative process.
   (1) Affirmative Resolution Procedure – statutory instruments will not come into effect until endorsed by a parliamentary majority within 40 days.
   (2) Negative Resolution Procedure (more common) – a statutory instrument will come into force unless there are Parliamentary objections within 40 days of the instrument being laid before Parliament.

Question 8

What is the second means of limiting the law-making power of the executive through delegated legislation?

Answer 8

2. The power to create delegated legislation gives ministers broad powers but fails to equip them with the power of the sovereign legislature – thus products of ministerial law making don’t hold the same normative status as Acts of Parliament. Thus delegated legislation that is ultra vires (outside) the power of the enabling Act of Parliament (the relevant clause) can be struck down by the courts (unlike Acts of Parliament).

Question 9

Is the overlap caused by delegated legislation tolerable according to the separation of powers theory?

Answer 9

Overall, delegated law-making is generally regarded as tolerable because of the three means of limitation to it;

• Statutory Instruments Act
• Ability of the Courts to strike it down where it is ultra vires the original Act of Parliament
• Convention that secondary legislation should not concern ‘great issues of principle’

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Question 15

How does the common law system create overlap between the role of the legislative and judiciary?

Answer 15

Some may suggest that through their development of the common law judges are exercising a sort of law-making function.

Question 16

What makes the law-making power of the judiciary more tolerable?

Answer 16

Unlike the theoretically unlimited power of parliament to make law the powers of judges to make law through their decisions are greatly restricted. Any changes made will be done so incrementally and there is an awareness, particularly on the part of judges, that the common law is not the place for wholesale legal changes or developments. Furthermore, any changes that do occur will be subject to Parliamentary override.

Question 17

How did Lord Bingham discuss the law-making power of the judiciary in the case of Malone v Metropolitan Police Commissioner?

Answer 17

The law-making role of the courts was neatly summed up by Lord Bingham’s cricket analogy – ‘… the common law scores its runs in singles: no boundaries, let alone sixes. The common law advances … in small, cautious steps.’

Question 18

How else do the judiciary have the ability to make law?

Answer 18

Judicial creativity and law-making can also be observed through statutory interpretation – particularly in regards to s. 3(1) of the HRA which requires all statutory provisions to be interpreted compatibly with it ‘so far as possible’.

Question 19

Which case highlighted the law-making ability of the judiciary through interpretation?

Answer 19

In the case of Ghaidan v Godni-Mendoza Lord Nicholls recognised the ability of the courts, through statutory interpretation, to change the meaning and therefore effect of legislation.

Question 20

What do the overlaps between all three branches in regards to law-making power say about the separation of powers in the UK?

Answer 20

Given the apparent law-making powers of both the executive and the judiciary it appears that if any separation of powers exists in the UK Constitution, it is sufficiently fluid to permit a degree of institutional overlap and functional flexibility.

Question 21

What did Munro say about the categorisation of the respective functions to the various institutions of government?

Answer 21

Unlike Jennings he said such categorisations may be possible - ‘the legislative activity involves the enactment of general rules … the executive function is harder to define, but includes actions taken for the maintenance of order … The judicial function involves the determination of issues of fact and the interpretation of the law’.

Question 22

Given the overlap between the functions of the UK government institutions, how can it be decided which institution should exercise each power?

Answer 22

A separation of functions must be underpinned by an allocation of those functions to the institutions expected to exercise them. Barendt argued, however, that in cases of uncertainty as to which institution should be responsible for a given function ‘[w]hat is crucial’ is that the courts ‘are entitled to take the final decision whether in practice a function is to be regarded as legislative, executive or judicial’.

Question 23

What support is there for Barendt’s view that the courts should be able to decide which functions should be exercised by which institutions?

Answer 23

The speech of Lord Nolan in M v Home Office – ‘the courts will respect all acts of the executive within its lawful province, and … the executive will respect all decisions of the courts as to what its lawful province is’.
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Lord Hoffman in R(Prolife Alliance) v BBC – ‘it is necessary to decide which branch of government has in any particular instance the decision-making power and what the limits of that power are. That is a question of law and must therefore be decided by the courts.’

Question 24

Which other legal doctrine causes significant problems in the application of the separation of powers theory?

Answer 24

A further issue preventing the application of the separation of powers theory to the practical reality of the UK Constitution is the existence of the doctrine of Parliamentary sovereignty which leads to one sovereign and legally dominant institution. Inevitably the existence of one dominant institution is problematic for the separation of powers.

Question 25

How does the presence of parliamentary sovereignty lead to questions over the existence of a separation of powers in the UK Constitution?

Answer 25

It leads some to say that the British separation of powers merely describes how powers are in fact divided rather than requiring them to be allocated in a specific way to specific institutions.

Question 26

Who supports the view that the UK Constitution does not have a separation of powers?

Answer 26

Professor Hood Phillips denounced the separation of powers as a ‘constitutional myth’ in the UK.

Question 27

Who supports the view that the UK Constitution does have a separation of powers?

Answer 27

Lord Diplock ‘strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers’ in the Duport Steel Case.

Question 28

In the debate on the existence of a separation of powers in the UK what are the two key issues?

Answer 28

1. The absence of any codified constitution or written document outlining the means of allocating governmental power, or even that three branches of government should exist, means that any separation of powers that can be said to exist cannot be said to be the result of some higher constitutional source.
2. The dominance of the principle of parliamentary sovereignty in the UK seems to suggest that all legal authority should be vested in one dominant body rather than three – as is inherent to the separation of powers doctrine.

Question 29

What does Tomkins argue about a separation of powers in the UK Constitution?

Answer 29

Tomkins argues that the dominance of Parliamentary Sovereignty means that the separation of powers cannot regulate how powers should be dispersed and instead any separation of powers that does exist is descriptive of the distribution of the government powers as they are rather than a constitutional determination of how the various powers should be allocated - ‘too the limited extent that there is some separation along these lines, it is merely descriptive and not normative’.