Baron Monstesquieu and His Idea of the Separation of Powers

Baron Monstesquieu and His Idea of the Separation of Powers

The separation of powers, originally established by Baron Montesquieu

in De l’Esprit des Lois (1748) can be seen as an integral part of any

constitution. Montesquieu voiced the necessity for a separation of the

primary three bodies: the executive, the legislature and the

judiciary.

In Lord Woolf’s statement: “The separation of powers has never been

part of the framework of our unwritten Constitution.” He is clearly

stating that he believes that under the constitution of the United

Kingdom there are important departures from the classic doctrine, and

the separation of powers has never been a basis on which the people

could rely upon.

In contrast to this, Lord Irvine states “The British Constitution is

firmly based on the separation of powers” which obviously means he

wholly believes the British constitution is in no breach of the

doctrine. There are arguments both for and against each statement.

The first thing to note with regards to Woolf’s statement is there are

indeed clear overlaps between the three primary bodies. The most

obvious being the status of the Executive and Legislature. Montesquieu

stated ‘when the legislative and executive powers are united in the

same person, or in the same body of magistrates, there can be no

liberty.’ Following on from this, the executive is primarily

identified as the Prime Minister and the Cabinet, yet by convention

they must be a member of either the House of Commons or the House of

Lords, which is identified as the Legislature. Therefore a near fusion

of the two powers has been formed and a clea...

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...nd independent judiciary, if not a separation of powers.

Although the constitution has been and is still in clear breach of

Montesquieu’s doctrine, it seems impractical to suggest that ‘the

separation of powers has never been part of our unwritten

constitution’ as it is apparent that considerable efforts have been

made throughout the years to legitimise these overlaps and to provide

the public with trust worthy and credible bodies. Randy E Barnett

stated in The Lost Constitution (2004) ‘The separation of Powers is

certainly neither an absolute nor a predominant feature of the British

Constitution’. It seems the case that now the separation of powers is

predominant and with the aid of the constitutional reform act 2005 the

United Kingdom is now heading towards a constitution ‘firmly based on

the separation of powers’.