Thursday, 14 December 2006

"Separation", indeed

The "scandal" of the dropping of the investigation into BAe and Saudi Arabia (is it a Labour Government's defence of the skilled, high-wage, high-status jobs of the British working class that is "scandalous"?) is, in any case, as nothing compared to John Major's appointment of Jonathan Aitken (whom I freely accept is a changed man these days) as Minister of Defence Procurement on the direct orders of the Saudi Royal Family. Remember that? Some of us do.

Kirsty Walk on Newsnight practically had kittens over "the separation of powers". Had she heard that term on The West Wing, or Sex and the City, or Pimp My Ride, or something? When will she be demanding that all Ministers resign their seats in either House; that the Law Lords renounce either their peerages or their seats on the bench; and so forth. "The separation of powers"? I ask you! What next? "The separation of Church and State"?

But then, waiting for Newsnight to come on in one of these non-Question Time seasons when everything interesting seems to happen, I caught the end of something called Coupling, the characters in which spoke with middle-class London accents even though the thing itself seemed to be set in New York, or at least in the city of Friends and Will & Grace. They even used American, rather than British, phraseology. Such, I suspect, is the world that the BBC newsroom inhabits, utterly unrecognisable to the rest of us. "Separation", indeed.


  1. Oh well, time for another law/politics lesson David. A key characteristic of the British constitution is parliamentary supremacy where statutory law is ‘superior’. Lord Diplock describes the UK constitution as: “firmly based upon the separation of powers: Parliament makes the laws, the judiciary interpret them”. However it is not clear that in a modern constitution these roles remain separate. The concept of the separation of powers was advocated by the French philosopher Montesquieu and is based on the existence of three distinct functions of government (the legislature, executive and judicial functions), and the conviction that these functions should be kept apart in order to prevent the centralization of too much power. The powers and organs of government are recognised by common law and conventions (government traditions), and are subject to various legal and conventional limitations. (i.e. judges must uphold Acts of Parliament and Acts take precedence over Common law). Each Parliament is not bound by a previous Parliament, or regarded as binding on a future one and may expressly repeal any previous law. The doctrine, confirmed by the courts, holds that each function should be vested in distinct bodies to divide power and provide a ‘checking’ system. The modern UK constitution shows three organs of government which exercise to a degree, a separation of powers (e.g. judicial independence and parliamentary privilege) and a checking system (e.g. judicial review, where the courts can ‘check’ procedures in public bodies). However, there is an increasing overlap of functions and personnel, sometimes described as ‘fusion’, and ultimately the ‘checking’ system is subject to the principle that Parliament is sovereign. Examples of fusion in the British constitution include disputes such as planning permission determinable only by a Minister (executive) who therefore takes on a judicial role. The judiciary is able to create common law, arguably assuming a legislative role. There is also a fusion of personnel. For example, the Lord Chancellor is effectively a member of all three bodies, although that has been addressed to a certain extent through the move to a Department of Constitutional Affairs.

    I am bored now and should get back to my 'wage slavery', enjoy your weekend! Up to anything exciting - another prospect of a drunken evening thinking about Neil Fleming and his wild,passionate love affair perhaps or by how many more votes he would receive than you in an election?

  2. Yes, yes, I know all of this. But as you yourself say "it is not clear that in a modern constitution these roles remain separate" (Law Lords, the Home Secretary's role in determining sentences, the fact that all members of the Executive are required to be members of the Legislature, &c). Indeed, they never were, nor ever can be.

    Furthermore, Lord Diplock seems to be engaging in a spot of wishful thinking, as such people often do, because they wish to see an American-style krytocracy in this country. (The wretched Human Rights Act is a big step in that direction.)

    Mercifully, we still have instead the supreme legislative, executive and judical authority of the Crown (i.e., of the nation embodied, regardless of party or anything else), exercised by Ministers drawn from and accountable to Parliament, within which the House of Commons has come to be elected by universal adult suffrange and (since 1911) to be supreme.

    The Crown is the ultimate contractiction of what you yourself admit is the Franco-American, and in nos sense indigenously British, theory of the separation of powers; and it is thus the ultimate guarantee that the United Kingdom (and each of the 15 countries with which we share the Crown) will remain a democracy, unlike either absolutist and coup-plagued France or krytocratic America, among many other places.