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Broadbent: Public Law Directions

Chapter 2

1. Explain the theory of the separation of powers

It is important to remember that the theory of the separation of powers is essentially a political theory concerned with the distribution of power within a state, the object being to prevent abuses of power by an excessive concentration of power in any one individual. The theory provides for the distribution of powers across different bodies, identified as the legislature, executive and judiciary, in order to provide a balance of power between these institutions, each acting as a check on the other two. As with all theories, the real question relates to whether it works in practice.  The real danger with the theory is that if it works effectively, it can prevent each of the institutions actually doing anything.

2. To what extent does the separation of powers apply to the British constitution?

This is a question of degree rather than something that works in an absolute sense: the theory is not fully realised in the British constitution. It is only partly visible and because much o f it depends on conventions, it becomes a difficult question to answer in detail. The Labour government has, since 1997, been introducing measures to try to formalise relationships between the government, Parliament and the courts with a view to creating a structure that more clearly differentiates the functions of each and regulates their relations with the other two. There is clearly no separation of powers between Parliament and the government (at least the political members of the government) as members of the government have to be members of Parliament. There is a much clearer separation of the judiciary, and judicial independence is an important feature of any democratic state.  Recent steps to secure this by altering the role of the Lord Chancellor and the Lord Chief Justice and the creation of a Supreme Court have done much to protect the independence of the judiciary. Your conclusion on the question generally will depend on your view of the effectiveness of both law and conventions in securing a separation of powers.

3. What does the phrase the rule of law mean?

In one sense, this is a trick question, as it does not have any single meaning. It also means different things to different people. There is almost universal agreement that the rule of law is a good thing, as it prevents tyranny and anarchy. The difficulty comes in getting agreement as to the substance of the phrase. A number of meanings can be canvassed, from the very general idea that it signifies a preference for government by law rather than by force or anarchy to more detailed accounts. Many of the meanings ascribed to it use the term to relate to matters of form rather than substance – the rule of law is concerned with the way in which things are done rather than what they are. However, some versions go beyond form to argue that rules should have certain minimum content. Accounts of the rule of law often seek to argue what the rule of law should signify rather than describe what others think it does signify, and this can often confuse matters. Try to keep a clear distinction between these various matters as you think about this question.

4. What are the characteristics of constitutional conventions?

It is worth remembering that the term convention occurs in two contexts and has a different meaning depending on the context in which it is being used. The first is to signify a treaty, as, for example, in the European Convention on Human Rights. The second is to describe political practices that are routinely followed by those affected by them. It is the second of these that we are concerned with and it is important not to mix up the two meanings. The term constitutional convention is often used to describe conventions of this second type. The characteristics are difficult to pin down, but include the identification of a practice or behaviour which is followed because it is felt that it ought to be followed. As we are dealing with practices it is also difficult to establish precisely when a convention arises or whether any deviation from it is simply a failure to follow the existing convention or is in fact a step toward the establishment of a new convention. Conventions lack the precision of legal rules and do not have clearly identifiable and limited sources. The sanctions for a breach of convention are also political rather than legal.

5. What part do conventions play in the British constitution?

Remember all those metaphors about the way conventions operate within the constitution – flesh clothing bones, oiling machinery etc? They really give the clue as to the role played by conventions in the British constitution. Conventions are a key feature of the way in which the constitution operates in a number of ways. Whole parts of the constitution such as cabinet government choice of prime minister etc, are simply conventions rather than being based on a legal footing as they would be in other countries. Conventions work within a framework of law and enable it to operate more effectively. The interaction between law and convention is a characteristic of the way that laws are used, with the convention informing the use of the legal rule.