The Separation of Powers Doctrine

The Separation of Powers Doctrine

The Separation of Powers Doctrine can be traced as far back as

ancient Greece and essentially the meaning attributed to it is the

dividing functions of government between groups with different

interests, so that no power in the centre can act without the

cooperation of others. However there are many interpretations of the

doctrine, one being that of Aristotle, who favoured the division of

power according to class interests of the monarchy, aristocracy and

democracy. It is important to note that the doctrine is not a legal

principle but simply a political theory, which ensures that the

exercise of governmental power has limits. This is essential in order

to protect society from totalitarian leaderships, avoiding absolutism

and preventing a monopoly of power. Dallison who stated that the

power to make and execute laws should be placed in different hands so

that ‘every one is limited’ supported this. He also held that the

king or Queen should retain a key role in the legislative process.

This idea was reinforced by Lord Diplock’s version of the doctrine

which held that the person who exercises one kind of governmental

power should not also exercise another and that no individual should

be a member of more than one of the three bodies.

The most significant version of the doctrine is often associated with

the writings of Montesquieu. He proposed three forms of governmental

powers, namely the legislative, executive and judiciary. The

Legislative power is the supreme law making body, specifically the

Parliament. In speaking of the Executive we are referring to the

Government whose duty is...

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...wer so the government can control itself, and it suggests that this

can only be done through various divisions, which can ‘check’ on each

other to avoid tyranny and ensure efficiency. Some modern

commentators have concluded that the doctrine has little meaning today

because the Executive largely dominates the Legislature.

Therefore in conclusion having considered the theory of overlap in the

British Constitution, it can be said that there is no ‘pure’

separation of powers. At one extreme the Privy Council is an executive

body which also exercises judicial powers. However most of these

judicial tasks are largely executive ones. At the other extreme the

Lord Chancellor being the most obvious example, is a member of all

three bodies.

The British Constitution therefore only exhibits partial separation of

powers.