Separation of Powers

The US Constitution is built upon the foundation of a separation of powers. Montesquieu, amongst others, had highlighted the importance of ensuring that the differing functions of legislating (making law); executing the laws (carrying out the laws and providing day to day administration) ; and judging - both interpreting the laws and deciding in invidual cases - should be in the hands of separate groups of individuals. Hence a member of Congress cannot be at the same time a member of the Executive (serving the President) or a member of the judiciary.

On the face of it, Britain seems to show a fusion, rather than a separation of powers. The doctrines of ministerial responsibility are based on the principle that Government Ministers will also be members of either the House of Commons or the House of Lords. The Lord Chancellor was for centuries a member of Parliament (almost invariably in the House of Lords); the presiding officer and major player in the Lords; a member of Cabinet and an active judge.

However - it is useful to remember that Montesquieu actually praised Britain as a shining example of 'separation of powers'. It can be fairly described as a major principle of the British system. True fusion of powers ended with the decline of absolute royal power.

The House of Commons Library have produced an excellent paper on separation of powers. It is available here. Students of UK Constitutional Law (including Open University W200 and W201 courses) will find that the process of condensing the information in this paper will assist their revision immensely.

Proposed Civil Justice Reforms

Yesterday the Lord Chancellor announced proposed that will make major changes to the way that the civil justice system works. It is a very useful document for anyone studiyng the English Legal System (for example my students at Aylesbury College and the Open University).

The document can be downloaded here.

The Role of the Lord Chancellor

Lord Campbell of Alloway asked in the House of Lords yesterday - "what the role of the Lord Chancellor is in tendering advice to the Cabinet and to a Secretary of State about the presentation of Bills to Parliament"

Lord Bach replied that "the Lord Chancellor is a member of the Legislation Committee, which considers all Bills before they are introduced into Parliament." I later answers he added, "The Lord Chancellor now has a constitutional duty in relation to the independence of the judiciary and the rule of law and, as an important member of what is commonly known as the L Committee, he has an important role to play in looking at whether Bills conform with the various treaties and other obligations which the UK Government have. "

Many of the supplementaries dealt with the draft Constitutional Renewal Bill which was considered by a joint committee last session. Lord Bach told the House of Lords that the Bill itself would be "as soon as parliamentary time allows. We expect that to be later this Session."

Constitutional Reform

Pre-legislative scrutiny has become an increasingly important part of Parliament's work. In the last session one piece of proposed legislation considered by a Joint Committee of both Houses was the Draft Constitutional Renewal Bill. (Report at http://www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/166.pdf).

There was no mention in the Queen's Speech about a full bill being introduced this session, but the Queen did say "My Government will continue to take forward proposals on constitutional renewal, including strengthening the role of Parliament and other measures." Baroness Royall, Leader of the House of Lords told peers in the subsequent debate "We will continue to work on measures aimed at improving our democracy and our constitution."


The draft bill had six parts, each dealing with issues raised in the Government's Governance of Britain programme. Key matters include abolishing the provisions covered by sections 132 to 138 of the Serious Organised Crime & Police Act 2005 concerning demonstrations in the vicinity of Parliament; The role of the Attorney General; the removal of the involvement of the Lord Chancellor in lower level judicial appointments; parliamentary consideration of treaties before ratification; and the placing of the Civil Service on a statutory basis - with codes of conduct.