That the king can do no wrong, is a necessary and fundamental principle of the English constitution.

 (William Blackstone, Commentaries on the Law of England, 1765).

*TEXT 5 THE SEPARATION OF POWERS

 

The ancient theory of the separation of powers tries to combat tyranny by dividing the functions of government between groups with different interests so that no power centre can act without the co-operation of others.

There are different kinds of separation of powers. For example, the classical doctrine favoured by Aristotle would divide power according to the class interests of monarchy, aristocracy and democracy. This version of the separation of powers is reflected in the British institutions of monarchy, House of Lords and House of Commons. However, the most influential version of the separation of powers is that proposed by Montesquieu (De LEsprit de Lois, 1748) who, broadly following Aristotle, argued that government powers are of three kinds: (i) the legislative power of enacting general laws; (ii) the executive power concerned with policy-making, foreign affairs and law enforcement; (iii) the judicial power concerned with the settlement of disputes arising out of the application of the law. If any two of these fall into the same hands there is a risk of tyranny.

Applied strictly, this version of the separation of powers would lead to weak and cumbersome government and in all countries there is some form of pragmatic compromise. Montesquieu believed that the British constitution of his time embodied the separation of powers but possibly did not take into account the extent to which conventions were beginning to blur the distinction between legislature and executive. The US constitution has been particularly influenced by Montesquieu. The president who forms the executive, and Congress the legislature, are elected separately and the same persons cannot be members of both. The US constitution is designed to encourage conflict between the two branches and regards weak government as desirable, whereas the UK system is more interested in ensuring that the will of the executive is carried out. The UK constitution is sometimes called a 'harmonious constitution' in that its efficient working depends not on checks and balances between contending forces as in the USA but requires the enlistment of different interests to form an all powerful government.

A related version of the separation of powers is that of “checks and balances”. Each branch of government is subject to some degree of control by another branch but without that other branch being able to dominate completely. Thus the exercise of power requires the co-operation of at least two branches of government and each branch is kept within its proper sphere of action. For example, independent courts interpret legislation, and executive decisions can be challenged in the courts on the ground that the government has exceeded or abused its powers. The checks and balances principle features strongly in the USA. For example the President can veto legislation but can in turn be overridden by a special procedure and the Supreme Court can declare legislation unconstitutional.

When the courts refer to the separation of powers they may therefore use the concept in different senses. For example in W.H.Smith Do It All Ltd v Peterborough [1991], Mustill L.J remarked that “according to the doctrine of the separation of powers as understood in the United Kingdom, the legislative acts of the Queen in Parliament are impregnable”. On the other hand, in X v. Morgan Grampian [1990] Lord Bridge seemed to have had the notion of checks and balances in mind when he referred to the “dual sovereignty” of Parliament and the courts, the one in making the law, the other in interpreting and applying the law.

LANGUAGE PRACTICE AND COMPREHENSION CHECK:

TASK I  a) Complete the following table:

Noun                                   adjective                              verb

Tyranny                    ____________________         _________________

Power                       ____________________         _________________

Function                   ____________________         _________________

Government             ____________________         _________________

Centre                      ____________________         _________________

Separation               ____________________         __________________

___________________ different                                  __________________

__________________ ____________________        divide

__________________ ____________________         reflect

__________________ influential                                 __________________

__________________ general                                      __________________

risk                           ____________________         ___________________

_________________ weak                                         ___________________

extent                       ____________________         ___________________

distinction                ____________________         ___________________

                                harmonious                              ____________________

__________________ ____________________        contend

__________________ ____________________        dominate

a) Make up word combinations and sentences with the words from the table to discuss the separation of powers.

TASK II   a) Add nouns from the text to the following adjectives: influential, classical, ancient, powerful, different, pragmatic, proper, foreign, efficient, weak;

b) Use the above adjectives in the following sentences; translate the sentences:

1. For good or ill, self-regulation in government and politics – even where it is underpinned, as in Westminster, by … law and practice –may no longer be acceptable to the general public.

2. The media will become more … power players.

3. Royal prerogatives fall into two groups: the common law prerogatives requiring no Parliamentary procedure and nowadays at the disposal of the Prime Minister and his colleagues (for example, the powers to conclude treaties, wage war, conduct … relations, issue passports); and the so-called personal/direct prerogatives or reserved powers of the sovereign (for example, the appointment of the Prime Minister, agreement to dissolve Parliament – dissolution – prior to a general election, and assent to legislation).

4. With the official opposition in a … position in the House of Commons, new sites of resistance grew up both in the Lords and on the government backbenches.

5. Both Blackstone and Austin, two “…” exponents of the modern doctrine of sovereignty, were also able to accept the existence of a higher law by which human law should be evaluated: Blackstone called it natural law, and Austin, divine law.

6. Should the Liberal Democrats find themselves in a more … bargaining position within the House of Commons, they would almost undoubtedly press for procedural reforms within that institution.

7. The changes since 1999 have come about not only through greater confidence amongst existing members, but also through the constant addition of new members who enter the chamber with … attitudes and expectations.

8. Devolution ‘does not break with tradition but simply recognises the “less than perfect” integration within the state in a new and … way’.

9. Where necessary for the … execution of its own powers, Congress may delegate some measure of legislative power to other departments.

10. Judges as well as politicians speak of the need for a “… balance” between rights and responsibilities.

 

TASK III  a)  Add nouns from the text to the following verbs:

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