Law and You > Administrative Law > The doctrine of Separation of Powers in the US and UK
According to the doctrine of separation of powers, there are three main organs of the Government in State i.e. legislature, executive, and the judiciary. Legislature performs the function of legislation, the executive performs the function of execution and administration, while the judiciary performs the function of adjudication. According to the doctrine of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the Government.
The main elements of this theory are:
- There is a division of the agencies of government into three categories: the legislature, executive and the judiciary;
- There are three specific “functions” of the government. The functions must be separated if freedom is to be assured;
- The three branches of government shall be composed of quite separate and distinct groups of people, with no overlapping membership; and
- Each branch of government will act as a check on the exercise of arbitrary powers by the others.
Separation of powers in the United States:
Under the Constitution of the United States of America, Montesquieu’s theory of doctrine of separation of powers finds its highest recognition. The Framers of the constitution made the provisions of the constitution in such a manner that while proper ordering a system of government, conferred sufficient power to the government and withheld the ability of it to abridge the liberties of the governed. Thus the theory of separation of powers is impliedly incorporated in the U.S. constitution.
- Under Article I Section 8 of the US Constitution, the legislative power lies in Congress. Congress has exclusive power to legislate, to make laws, and in addition to enumerated powers it has all other powers vested in the government by the constitution. In the Clinton v City of New York, 524 U.S. 417 (1998) case, the Supreme Court of the US held that congress could not delegate a ‘line-item veto’ to the President by which he was empowered to selectively nullify certain provisions of the bill before signing it. The reason was congress has exclusive power to legislate.
- Article – II Section 1 of the US Constitution, vests executive power in President. By law, he is the Chief Commander of the Army and Navy, Military of the several states. He has the power to make treaties and appointments to office…….with the advice and consent of the senate.” The constitution empowers the president to ensure the faithful execution of the laws made by Congress. The President’s responsibility is to execute whatever instructions he is given by Congress.
- Article – III of the US Constitution, vests judicial power in the Supreme Court and inferior courts established by congress. The judges must be appointed by the president with the aid and advice of the senate. Courts exercising die judicial power are called “constitutional courts”. Congress may establish legislative courts. Legislative courts may only adjudicate “public rights”.
Application of the Doctrine:
- The President is not a part of the congress and cannot participate or deliberate in the proceedings of the Congress.
- No member of the executive participates immediately in the legislative process in Congress.
- President’s leadership of the Congress is much looser than that of the Prime Minister in a parliamentary system mainly because the President has no power to dissolve the Congress or to participate in legislative deliberations.
However, the practical implementation of such independent functioning has proven unsuccessful and the actual position is quite different. The system of government provides for checks and balances amongst the three organs in order to restrict and regulate the use of their powers.
- The President of the United States has got the power to veto legislation passed by Congress
- The Congress is the final ratifying authority for treaties signed by the President
- The legislature is vested with the power to impeach judges
- The judiciary has the power of judicial review over legislative and executive action.
- Further, in cases expressly provided for or incidental to the powers conferred, one organ may venture into the territory earmarked for another.
Separation of Powers in England:
In England, the doctrine of separation of powers was opposed in the 18th century by the doctrine of the mixed or balanced constitution in which monarchial, aristocratic, and democratic elements were joined and held in equilibrium rather than strictly separated. Under the un-codified, largely unwritten British constitution there is no strict separation of powers. Instead, there is a system of checks and balances which ensures that powers are not abused. The British constitution is not based on the separation of powers, but it does not mean to say that the separation of powers is of no relevance to the British constitution. The British idea of a mixed government is based on the belief that the degree of connection, rather than separation is what provides checks and balances in the governmental system.
Crown is the nominal head in England; it is the cabinet consisting of Prime Minister and Cabinet ministers is the real head of the executives. Thus a single body is exercising legislative as well as executive function. It also includes the civil service which runs the administration of the state, and the armed forces and the police which uphold executive power. The role of the executive is to formulate and implement government policy. The elected government is accountable to Parliament.
Parliament comprises the Crown, the elected House of Commons and unelected House of Lords. House of Commons is superior to House of Lords in law making power. The constitution of UK is unwritten constitution. Parliamentary sovereignty is the basic principle of the UK constitution. Generally, the courts cannot overrule its legislation.
The judiciary includes all the judges in the courts of law, and also those who hold judicial office in tribunals, and the magistrates. Senior judicial appointments are made by the Crown. Despite the fact that most of the British law is Judge-made law, the function of the judges is restricted to interpret legislation in consonance with the intention of the parliament. Constitutionally, Parliament is sovereign the validity of Acts of Parliament cannot be challenged.
One of the unique features of the British legal system is the institution of Lord Chancellor, he is the head of the judiciary who is responsible for appointment of other judges. He is also the Member of Parliament and plays important role in the government. He also presides over House of Lords as its speaker. This role of Lord Chancellor is frequently criticized as violating the separation of power and concentrating executive, legislative and judicial functions in one person.
In a situations where controversial political and social issues were made the subjects of judicial purview, in order to avoid conflict between the judicial and political machinery the courts have claimed a lack of jurisdiction on the basis of this doctrine of separation of powers. Especially in cases of statutory interpretation, they employ the language of separation of powers to explain and justify their decisions. In Deport Steels Ltd, V Sirs [1980] 1 WLR 142 case, Lord Diplock pointed out that: “….it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the separation of powers; parliament makes the laws, die judiciary interprets them…it is parliament’s opinion on these matters that is paramount”
Thus it is seen, under the British scenario, though the doctrine is not expressly recognized in the constitutional plan, it does exist, albeit not in its absolute form, in the practice of the organs of the government.
From above explanation we can see that there is no complete separation of powers in the US. While we can not infer that the English constitution has accepted the doctrine of separation of powers.