“one must give one power a ballast,so to speak, to put it in a position to resist another.
” Is the concept ofseparation of powers guiding the British constitutional arrangements? To answerthis question first we must look towards what the aims and functions of theconstitution and weigh it against the achievements of Separation of Powerstowards that objective. Approach taken to the word “guiding” is one creating anassumption that Separation of Powers will guide the constitution to itsobjective. Especially allowing that the British constitution is uncodified itrenders it very diverse, making it less distinct whether Separation of Powersis “the guiding” principle. Intro quote: Montesquieu Del’Espirit de Lois 1748 ( The Spirit of the Laws) Book V chapter 14The constitution as described by Wheare is a “system of governmentof a country, the collection of rules which establish and regulate or governthe government”. Displaying the constitution to be a set of rules created forthe public actors that the public agrees to follow, since they aim to furtherthe well-being of the public itself. Due to it being a representative of thelaws people are willing to follow, it also holds and creates a sense ofidentity of the people it represents.
Combined with its practical functions itaims to make power accountable, manage disputes and legitimise the power of thegovernment to name a fewSeparation of Powers is one of the key principles limiting powerby spreading it across “three monoliths.” Allocating state power such as creationof law to the legislature. Giving legitimate power to the parliament using democraticprocess also seen within Parliamentary Sovereignty. However as much as it givesstate power it also limits it to remain order and avoid tyranny.
This approachenables the establishment and procreation of human rights and societal norms. Sinceit aims to limit any misuse of power though the use of accountability.As “power tends to corrupt and absolute power corruptsabsolutely” another aim of separation of powers is to keep politiciansaccountable for their actions to avoid misuse of power.
To maintain a consensusand realise the primary objective of Separation of Powers in the form of a “functionaldemocratic state”. Establishing a precedent of control in other areas such asthe Judiciary accompanied by elections. Also, one of the main roles of thelegislature is to scrutinise the executive. It does so in many forms rangingfrom parliamentary debate to judicial reviews, including power of courtsexemplified by Declaration of Incapability, breach of Human Rights orinternational law as seen in Thoburn v Sunderland City Council.Creating a legitimate power in a democratic state whichthrough separation of powers rendered control, allows a representation ofpeople. Thereby furthering their well-being as their interests are represented.Keeping of the consensus, by scrutinising misuse of power although arguablypolitical pressure could be a more effective agent for such cause. As well asproviding a legal basis through creation of an independent judiciary, electedexecutive and legislature since candidates will be elected on mandate approved bythe majority, making most future legal changes foreseeable.
Miller case is profoundly focused upon separation of powers,since it shows the judiciary reviewing legislature to reach a constitutionaldecision on who should trigger art.50. It does so since the judiciary’s roleunder Separation of Powers is to interpret law created by the legislature, andbased on the law predominantly European Communities Act 1972 they were able toscrutinise the executive for unconstitutional use of prerogative powers. “The constitutional principle is that when the power ofthe Executive to interfere with the property or liberty of subjects has beenplaced under Parliamentary control, and directly regulated by statute”The quote confirms that prerogative powers fall under thecontrol of statue, the judiciary assess and interpret the law. In resultplacing the control over the use of prerogative powers in the hands of thejudiciary who may interpret the law how they wish.
Placing power within thejudiciary’s hands to rule against the improper use of law which would harmconstitutional arrangements. As not only is the use of prerogative powers inmost cases unconstitutional since limited by precedent also ruling that thelegislature must trigger art.50 creates a more democratic decision since peopleelect the legislature legitimising their power to create an Act triggeringart.50, giving a fairer representation to British people in a decision reachedthrough a referendum. Without Separation of Powers we would not be able to havesuch a case, since it allows for the courts to scrutinise the work of theexecutive as well as rule against it, setting a precedent of promotingconstitutional values such as accountability.
In this case, holding theexecutive accountable for intent to incorrectly use power given to them throughinterpretation of legislature as well as referral to constitutionalarrangements. A process impossible without judicialindependence allowing for the court to reach a decision the government of theday may not like, it is crucial for the judiciary to be capable of it to avoidmisuse of power from other branches. Although arguably they have little controlover the legislature which holds Parliamentary sovereignty, still in this caseallowing for a greater scope of accountability, democracy and upkeep ofconstitutional arrangements.