Abstract The principle of the Separation of Powers, according to which -broadly speaking- power ought to be shared amongst a diverse group of people, is often presented as a recipe for justice, and it yet this is really not the case. In so far as the members of this group tend to disagree, it tends to be a recipe for judicial impotence, the inability to impose justice because of the barriers constituted by the existence of dissenting influences. More particularly, this principle stands in a way of a ruler who is is able to dispense perfect justice.
The Purpose of the Law
The purpose of the law is to prevent the abuse of power. The law endeavours to prevent the abuse of power by sanctioning abusive actions. In most cases it is clear why an action constitutes an abuse of power. Assault, murder, rape, theft and other crimes are clear abuses of power. So also are breach of contract, wrongful dismissal, parking in a handicapped zone. In all such cases someone -the actor- possess the power to perform certain actions which are harmful to, or are to the detriment of the welfare of another. More precisely, the actor possesses the power to perform or not to perform an action or actions which are harmful to, or are to the detriment of the welfare of another. Crimes of omission are distinct from crimes of commission because they do not involve an abusive action but an abusive lack of action, as in the case where a parent fails to seek medical attention for their desperately ill child. But in every conceivable case of legal liability an actor by performing, or by not performing some action, has abused their power. When someone abuses power by taking an action, they have disturbed a balance of power in the direction of activity, and when someone abuses their power by not taking an action they have disturbed a balance if power in the direction of passivity. The most general role of the law then is the maintenance of balance, and the most general purpose of the lawyer, or of any practitioner of the law, is the maintenance of balance. It is the role of an ideally just ruler to maintain this balance.
The Source of the Law
‘Natural Law’ is the thesis that man-made laws derive their force from the existence of transcendent laws discoverable through human reason. ‘Legal Positivism’ is the thesis that there is no necessary connection between law and morality. More precisely, Legal Positivism is the thesis that there is no necessary connection between what the law is and what it ought to be. John Austin:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
At first sight it might seem that the dispute is semantic, with the Natural Law proponent declining to recognize any unjust dictate by a ruling body as a law, but there is a deeper issue. The disconnection between facts and values that informs Legal Positivism clears the way for the cynical view that laws are nothing more than the tools of the ruling elite. Consider the view that the facts are nothing more than the tools of the ruling elite. This is a self-refuting view because the view cannot itself be both a mere political tool and draw the distinction between truth and falsity on which it depends. Truth clearly does function as a political tool, but the question whether something is true is independent of the question of its political expediency. The possibility of rational inquiry, it can be argued, is founded on the assumption that there is a set of objective truths that exists independently of any consensus. Truth this is to say is independent of what is known or believed by any group of persons. And there is an intimate connection between facts and values in that facts are valuable. The truth is what we ought to believe, and the false is what we ought not to believe. Few -if any- are so contemptuous of value that they do not take themselves to be pursuing truth rather than falsity. If therefore we think to regard facts as disconnected from values, we will arrive at the self-refuting Nietzschean stance that there is no such thing as truth. Questions such as ‘What are these objective truths of which you speak?’ and ‘How can we know whether some proposed set of truths is the objective set ?’ can be circumvented in this way: the existence of a set of objective truths is a precondition of rational enquiry. The existence of a set of natural laws in can be argued in a corresponding manner is a precondition of legal inquiry. Questions such a “What are these natural laws of which you speak?” and “How can do we know that some proposed set of natural laws is the natural set?” can be thus circumvented. In mathematics there is a form proof known as proof of existence. It has for example been proved that there is some number n such that the logarithmic integral function underestimates the number of primes not greater than n. The available empirical evidence suggests that this function always overestimates the number of prime numbers not greater than n, but this is an illusion. The number is rather large, and no one knows what it is, but we know that there is such a number. It exists. Correspondingly, we may not know exactly which truths are the objective ones, or exactly which laws are the natural ones, but we know on a basis of the possibilities of rational and judicial enquiry that they exist.
Few would deny that the question of whether a law of the land is -as John Austin asserted- independent of the question of whether there is such a law of the land. This is not the issue that divides. The issue here is whether there are objective laws in virtue of which the question of justice can be more or less settled. According to the Natural Law thesis, there are such laws. Opposed to the Natural Law thesis is not Legal Positivism -at least not Legal Positivism as defined by John Austin- but the doctrine that there are no natural -objective- laws. If this doctrine has a name it is ‘Legal Relativism’. In addition to its self-contradictory nature (relativism is committed to the absurd conclusion that absolutism is relatively true), such a doctrine carries some unpalatable consequences. One could imagine for example living under a Nazi-like regime and being required to follow laws designed to exterminate all people of Jewish descent. If there is no set of objective truths in whose light this is law unjust, then the most substantial objection we can offer is that it clashes with our -or somebody’s- subjective opinion of what the law should be. Generally speaking, the disbeliever in natural law is faced with the same conclusion that the disbeliever in objective truth is faced: there is no such thing as justice independently of the dictates of one or another body of law. But which body is right? Which should be followed? If one has any interest in putting apparent laws to an objective rather than a subjective test, then one is committed to the truth of the Natural Law thesis. As I said, whether or not these laws are easily discoverable, that they exist is a precondition of judicial inquiry, and while they have earthly representation, they are originate in a domain beyond the human world. Plato’s “Euthyphro dilemma” – “Is the pious loved by the gods because it is pious, or is it pious because it is loved by the gods?”- is solved i . the same way that Hegel rebutted the Kant’s and Russell’s criticism of the Ontological Argument that existence is not a real property/a name is really a description to the effect that there is something x such that x has certain properties and so nothing can have the property of existence by definition. Hegel’s rebuttal is that God is the thing such that there is no distinction between existence and essence, which furnishes the solution of the Euthythro dilemma: G-d is that thing such that the the content and the form of piety are the same. Such an object is a condition of the possibility of existence and of rational inquiry.
The Separation Powers
In the 1748 L’esprit des Lois (The Spirit of the Laws), Baron de Montesquieu wrote of the ‘separation of powers’. All would be lost, he said,
if the same man or the same body or principle of men, either of nobles, or of the people, exercised these three powers: that of making laws, that of executing public resolutions, and that of judging of crimes or the disputes of individuals.
Today we are apt to think of the UK Constitution as comprised of three elements corresponding to the three powers of Montesquieu – the legislature, the executive, and the judiciary. The reason that Montesquieu is an advocate of the separation of powers, and the reason he says that ‘all would be lost’ in the circumstance that his three powers belonged to the same man or group of men is his belief that the this form of government would be a tyranny. It need not be tyranny -for the man/men might be perfectly fair and just- but there is nothing to prevent it from being a tyranny. There are as they say no “checks and balances”.
The expression ‘same body or principle of men’ is potentially misleading, and behind it hides a complex and thorny issue. If one man wields all the power in the manner of a dictator or an ancient emperor or king, then unquestionably there is insufficient separation of the powers, but although no one man possesses all legislative, executive, and judicial powers it may nonetheless be that one group of men possesses them. There are measures in UK law designed to limit the extent to which the one person can occupy more than one power-role. The Constitutional Reform Act of 2005 for example provides that full time members of the judiciary are ineligible to serve as peers or MPs. But Montesquieu is rightly concerned, not only to limit the power of single men, but of groups of men. The legislature, the executive, and the judiciary, can by in large be separated in the following manner:
Legislature = A, B, C…
Executive = D, E, F…
Judiciary = G, H, I…
We do not this is to say see the following:
Legislature = A, B, C…
Executive = A, B, D…
Judiciary = D, E, F…
But although it may be that A, B, and C are answerable to D, E, F, and the rest, it is possible that A – I, are a collective tyrant. Suppose for the sake of argument that, while no one man performed more than a single power-role, every parliamentarian, every politician, and every judge was also a member of the Windsor family. We would have little hesitation in declaring in these circumstances that, irrespective of the fact that the same man doesn’t exercise all three powers, they are exercised by ‘the same body or principle of men’. We would worry in these circumstances that there was insufficient separation of the powers.
The members of every group of people are to some extent similar and to some extent diverse, and if society’s power-brokers form a group that is insufficiently diverse, then we may object that there is non-separation of the powers. In The Politics of Judiciary J.A.G. Griffith argues that judges are
Necessarily conservative, not liberal, and show tenderness towards private property and dislike of trade unions… distaste for minority opinions, demonstrations and protests and support for governmental secrecy.
Griffith is saying that there is insufficient diversity within the ranks of the judiciary. Another way to express this same point is to say that there is an insufficient separation of the powers amongst this group. Baroness Hale had this to say about the authority of the judiciary:
In a democratic society in which we are all equal citizens, it is wrong in principle for that authority to be wielded by such a very unrepresentative section of the population.
We can easily extend Griffith’s and Hale’s critique of the judiciary to power-brokers generally, and observe out that, despite their varying political views, the legislature, executive, and judiciary are comprised in the main by wealthy, white, males with a particular educational background. Whilst there is more diversity amongst the legislature, the executive, and the judiciary, than amongst the judiciary alone, it remains the case that these roles are not filled by representative sections of the population. Following Montesquieu, we may object therefore that, whilst no one man exercises all three forms of powers, these powers are exercised by the same group of men, and so that there is an insufficient separation of powers. The UK, it might be argued in the spirit of Montesquieu is, in spite of the improvements have been instituted since the conflict between the Parliamentarians and the Royalists, a tyrannical state run by a particular group.
The Paradox of Parliamentary Sovereignty and the Separation of Powers
Let us analyse the notion of power starting from the influential 3-part definition of Parliamentary Sovereignty given by Dicey in An Introduction to the Study of the Law of the Constitution (1885):
1. Parliament may legislate on any topic
2. No Parliament can bind its successors or be bound by its predecessors
3. Nobody may challenge the validity of an act of Parliament
Principles 1 and 2 are contradictory: if Parliament can, as Dicey says, legislate on any topic, then it can legislate on the topic of its own future powers. Principles 1 and 3 are for the same reason contradictory: if Parliament can legislate on any topic then it can legislate to challenge the validity of an act of Parliament. Suppose that Parliament makes a law. Does Parliament possess sufficient power that this law will stand for all time? If it does, then there is limit on Parliament’s power to re-shape the past. If it does not, then there is limit on Parliament’s power to shape the future. In either case Parliament is not, and cannot be, sovereign in Dicey’s sense. The same can be said for the Supreme Court, the Court of Appeal, for any Court in the hierarchy of courts, or for any authority that makes or interrupts the law. An authority that has little no power to make the law is strongly governed by restraining influences from the past (rigidity), whereas a Parliament as a predominant law-making authority is free to a greater extent free overturn the past (flexibility). In practice there may be little difference between the code-based ‘civil’ legal systems of Europe, and the non-code-based ‘common law’ systems deriving from Britain, but in theory the former systems favour rigidity while the latter favour flexibility. This tension between rigidity and flexibility arises from the limits there are on the power of any legislative authority. To be precise, there is an inversely proportional relationship between to the ability of an authority to influence the future, and the influences acting on this authority from the past. It follows that no one person or body is sovereign, but that sovereignty is shared between various people and bodies. There is we might say a spectrum of sovereignty ranging from an authority -such as the Magistrates Court- that is relatively constrained by past and by future authorities, to an authority -such as Parliament- that is relatively unconstrained. Although it lies towards the unconstrained end of this spectrum, Parliament holds a shifting and uncertain status, depending on the powers of the more or less subordinate legislators also occupying positions within this spectrum.
From the failure of Dicey’s definition we see that there are two limiting principles governing the exercise of power. The first principle is that an actor’s power to influence the future is inversely proportional to the influences that flow from the past:
This principle creates an ineliminable and unbalanced self-tension between rigidity and flexibility familiar in the jurisprudential context from the contrast between civil and common law, and disputes within the UK common law system concerning the question of how strictly the doctrine of precedent should be applied. We may picture this tension as a series of waves oscillating about the an axis which represents the half way mark between the impossible extremes of complete rigidity and complete flexibility, sometimes crossing the axis towards rigidity, and sometimes crossing it in the other direction towards flexibility. This is the most fundamental form of the principle underlying the Separation of Powers that an actor’s power to influence the future is inversely proportional to the number of other independent actors with whom they share power including the situation in which the independent actors are aspects of the one actor. The greater the number of independent powers, the less power can be wielded by any one actor. The effect of adding powers is to limit the size of the shifts of the overall system between rigidity and flexibility. These shifts might be dramatic ones if a single man or group of men held the majority of the power, but they are reduced with the addition of independent powers:
This analysis allows us to see that the failure of Dicey’s Legislative Supremacy and the loss of occurs with application of Baron de Montesquieu’s Separation of Powers and are aspects of the same thing, the difference being that the loss of power that occurs in first case is caused by the self-opposition of past and future parliamentary bodies. The unifying idea is that shared power is diminished power. Clearly there are, not 1 or 2 or 3, but numerous powers, but it is possible to capture this entire complex of relationships with a simple model. We start with an idealised balance of rigidity and flexibility that is perpetually tipped in one direction or another, but never either to the extreme that change ceases or becomes infinite. Every change is a shift, however small, in rigidity/flexibility, and so the model contends with anything that can happen in a political state. We go on to observe that the strength of these shifts in the balance of rigidity and flexibility is inversely proportional to the number of independent powers, some of which are past and future incarnations of the same actor. The smaller the number of independent powers, the greater the potential for dramatic shifts, and conversely. The second principle is a restatement of the idea behind the Separation of Powers.
Charles I, and the Factortame and Belmarsh Cases
Expressed in these terms the idea no doubtless sounds very abstract, but it can readily be made concrete by appeal to concrete historical examples. Consider firstly that prior to the execution of Charles I, the Stewart Kings conducted themselves according to their belief in the principle known as ‘The Divine Right of Kings’. The monarch – so says the principle of the Divine Right Of Kings- is answerable to no earthy authority, but only to God. This idea gained prominence under James Stewart the son of Mary Queen of Scots (James I of England and James IV of Scotland), and the Stewart Kings headed governments which -although by no means single-man governments- possessed a relatively large amounts of power. But this power was significantly diminished after the Civil Wars and the execution of Charles I, because after this point in history power which had formerly been the sole province of the Crown was shared with Parliament:
In the 21st Century, Parliament possesses more or less all of the power that once belonged to the Crown, which is to most intents and purposes powerless. In 1972 Parliament passed the European Communities Act, which provides For supremacy of European Union Law over National Law with regard to matters falling within the jurisdiction of the European Court of Justice. The growth of the power of the European Union comes at the expense of the power of Parliament, for since the ECA Parliament is according it its own provisions bound to follows the dictates of the European Court when it comes to EU law. Although this doesn’t mean that Parliament has been superseded by the ECJ, it does mean that Parliament has lost -or if you prefer, relinquished- some of its law making powers to the European court. A clear example of this loss is the Factortame case (R (Factortame Ltd) v Secretary of State for Transport). In 1970 the EU initiated a Common Fisheries Policy which provided for free access to the waters of member states, and in 1983 limits were set on the total allowable catches by a Member State. Factortame Limited was a shipping company most of whose directors and shareholders were Spanish Nationals living and domiciled in Spain but whose vessels were registered in the UK under the 1894 Merchant Shipping Act. Although their catches were landed in Spain, they counted against the UK quota. To prevent the practice known as “quota hopping”, the British Government passed the 1988 Merchant Shipping Act which directed that a vessel could only be registered in the UK if it had genuine connections with that county. The new legislation meant that Factortame would effectively be put out of business, and so they challenged it on the grounds that it violated their rights under EU law, specifically on the grounds that it was contrary to Article 7 of the Treaty of Rome :
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Both the Court of Appeal and the House of Lords held that a domestic UK court lacked the power to suspend the operation of a UK Statute, but after the ECJ held that a national court had both the power and the obligation to overule a UK law when it conflicted with EU Law, the House of Lord’s granted an injunction in favour of Factortame.
The Human Rights Act of 1998 similarly deprives Parliament of its power. The HRA doesn’t give the courts the right to strike own an act of Parliament when this is in conflict with the European Convention on Human Rights but it is empowered to issue “a declaration of inconsistency” and it is free to give priority to the ECHR. If Factortame is a clear example of Parliament’s loss of power to the EU, the Belmarsh case (A v the Secretary of State for the Home Department) is a clear example of Parliament’s loss of power to the Common Law Courts via the ECHR and the HRA. Following the attacks on the Twin Towers in 2001, Parliament enacted the Anti-Terrorism, Crime, and Security Act. Part 4 of this act provides for the indefinite detention without trial by the Home Secretary of any non-British citizen he suspects to be a terrorist. 9 men detained on the basis of ATCS act appealed against their detention under section 25 of the same. According to Article 5 of the ECHR “everyone has the right to liberty and security of person…” and no one can be detained without trial. The HRA makes it unlawful for any British public body to act in a manner that is contrary to the ECHR, but Article 15 of the Convention provides for derogation by its member states from Article 5 in a time of emergency. The appellants argued that the ATCSA was inconsistent with Article 14 of the ECHR:
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Their argument can be summarized as follows:
1. The public emergency on which ATCSA relied to derogate from the convention was the threat to UK posed by Al-Qaeda terrorists and their supporters.
2. Some Al-Qaeda terrorists/supporters are UK nationals.
3. Yet the indefinite detention of UK nationals is not provided for by the ATCSA.
4. Hence the ATCSA discriminates against foreign nationals in a manner inconsistent with Article 14 of the ECHR.
It was held by the majority that while the detention was lawful under the ATCSA, section 23 of this act was inconsistent with the ECHR, and the appeal was allowed.
To make sense of the question of the relationship between EU Law and the HRA on Parliamentary Sovereignty, it is necessary to abandon the blunt and narrow -not to say incoherent- notion inherited from Dicey. This notion would encourage to ask the question of whether there is a conflict between the sovereignty of Parliament and EU or the HRA law. Like the question of whether I have stopped beating my wife, it carries a false presupposition: I am unmarried, and Parliament is not nor has it ever been sovereign in Dicey’s sense of this term. Rather, Parliament formerly possessed a relatively high degree of sovereignty, a sovereignty that has been lessened since the European Community and the Human Rights Acts. This is a familiar: Charles I, and the Stewart Kings, possessed a far higher degree sovereignty than any Parliament, and this sovereignty was lessened by Parliament. In both the Factortame and the Belmarsh cases, acts of Parliament were called into question, and effectively overridden, by non-Parliamentary bodies. In the same way that the power of the Crown was dramatically diminished when following Charles I it was shared with Parliament, the power of Parliament was been dramatically diminished when following the ECA and HRA it is shared with the European Courts of Justice and Human Rights.
Montesquieu’s statement that ‘all would be lost’ in the circumstance that the same man or the same group of men exercised all three powers, reveals his belief that unshared power is bound to be abused or wielded in an unjust manner. However the truth of this belief is not implied by the inverse relationship between the number and the strength of powers on which the principle of Separation of Powers depends. Whether or not power is used in a just or in an unjust manner has nothing to do with the Separation of Powers, which promises only that power is reduced because shared between independent parties. Power, like money is a quantity that can be utilized in a variety of ways, and in the same way that it remains to be seen how a person will spend their money, it remains to be seen how someone will use their power. Despite his possession of what -to Montesquieu and to us- would seem like an inordinate amount of power, a monarch such as James 1 might theoretically be a just monarch. What the Separation of Powers secures for us is, not freedom from tyranny, but freedom from great tyranny. Montesquieu’s expression ‘the same body or principle of men’ is a complex one, for in one sense or another it is always the same body or principle of men that comprise the so called arms of government. If all governmental roles were fulfilled by members of the Windsor family, or by members of the same football club, then despite that restriction that no one person held more than one role, we would have no hesitation in declaring the Separation of Powers to be insufficient. Since most Judges, and MPs, and political figures are educated, wealthy, white males, it is arguable that the UK is governed by a group of educated, wealthy, white males that tyrannises a population that includes large numbers of uneducated, poor, black, and female people. But this tyranny is of a significantly lessor order than the tyranny of the Nazi Party over Germany during WW11, when dissenting voices were not merely unheard, but were violently silenced. So whilst the Separation of Powers is able to able free us from great tyranny, in so doing it stands in the way of a great monarchy, the kind of government that James 1 claimed his government to be – just as well as powerful. The Separation of Powers -and Democracy which is the logical extension of the Separation of Powers- represent a negative solution to the problem of the abuse of power. One might compare Democracy to a car whose engine is attached to a governing device: this device ensures that no one – including the professional race car driver- can speed. But the ideal ruler is like the the ideal race car driver – they ought to be allowed to speed, and unless they are allowed to speed, the world will always be run by a dis-unified self-interested, rabble rather than a Messiah, history will continue to repeat itself, and we will never live in a kingdom of peace.
The Rule of Law
It might be thought that the Separation of Powers is the basis of the Rule of Law, the principle according to which no one is above the law. But again it is possible that a powerful Monarch be under the Rule of Law, and indeed James 1 in a speech to Parliament in 1609 claimed that, although he would not surrender his God-given power, he would himself live under the Rule of Law. This claim has two components, that his laws would be just, and that he would live within them:
I will not be content that my power be disputed upon: but I shall ever be willing to make the reason appear of all my doings, and rule my actions according to my laws. Therefore all kings that are not tyrants, or perjured, will be glad to bound themselves within the limits of their laws…
The Separation of Powers limits power, but since power is a neutral thing that may or may not be abused by its possessor, it is not necessary for the Rule of Law. Nor is it sufficient, for the Separation of Powers doesn’t prevent abuse, but only reduces the extent of any abuse that occurs.
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Hegel, G (1895), Proofs for the Existence of God
Kant, I (1781), Critique of Pure Reason
Russell, B (1905), On Denoting
MacArthur, B Ed (1997), The Penguin Book of Historic Speeches
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Stewart, J (1598), The True Law of Free Monarchies