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BRITISH

SEPARATION OF

POWERS

There is a close fusion between executive and legislature in the British political system. The members of government are members of parliament. As a convention, the Prime Minister is always a member of House of Commons (Lower, elected legislative house of the British parliament; counterpart of Pakistan’s National Assembly). Likewise, it is a well-established political practice for ministers to be either members of House of Commons or House of Lords (UK’s upper, mostly appointed, legislative house; equivalent to Senate of Pakistan). Walter Bagehot glorified this ‘nearly complete fusion’ as the ‘efficient secret’ of English constitution. However, this is archaic wisdom against the intensifying executive domination. A threat, which Lord Hailsham had felt, was real and in need of prompt resolve. To curb it, the number of paid ministerial appointments has been statutorily barred. Under the House of Commons Disqualification Act, 1975, the PM can appoint a total of 109 paid ministers — 95 from Commons and 14 from Lords. This has significantly restricted the number game but has left room for manipulation. The PM remains the sole arbiter of the Cabinet size. He/she can make excessive unpaid appointments because of Act’s silence.
This is especially true for a government with a landmark electoral support. As a result, it has greater control over policies and can easily turn them into laws. To circumscribe, it is now a statutory requirement for government to maintain the confidence of Parliament in major policies, including the budget and manifesto-centric bills. Defeat meets with rigorous calls for a new election which are hardly ignorable. Under the Fixed-Term Parliament Act, 2011, the Premier is bound to call general election if (s)he loses confidence. The only change is to wait for two weeks for other parties to mediate and take over. In the absence of their command, an early election is set in stone.
The Parliament’s role is to build pressure on government and poke loopholes in its proposals, making it lose ground and support of the House. It achieves this through debates at second reading and report stage of a bill. However, government can evade it by subjecting the Committee Stage to a guillotine motion. This narrows Parliament’s supervision of the bills. Therefore, Parliament resorts to parliamentary processes. The Prime Minister Question Time is scheduled every Wednesday for half an hour for spontaneous responses. It keeps dialogue in public eye and discourages ill-preparation. The speedy making of Devolution Acts, 1998, is its crystal clear example despite its asymmetrical power division in the country. The Lothian issue is still a matter of urgency for England but remains unresolved. Although Minister Question Time is scheduled for about an hour every Monday to Thursday, its effectiveness is compromised with the advance knowledge of the questions and provision for written submissions. These debates, however, prepare the citizens for vigilant voting in the next general election. They can also be a reason for low voter turnout. On the flip side, it may make people lose confidence in the electoral process altogether.
The relationship between the executive and the judiciary is likewise not smooth. The PM has extraordinary powers of deploying and appointing civil servants, signing and terminating treaties and hiring and firing ministers, to name a few. As a result, the need of check is ever-demanding. But to maintain constitutional boundaries, legal accountability is confined to justiciable matters, which is regularly set aside under the blanket defences of national security and policy choice. The reason often presented is judges are not masters of security and surveillance; they are plain guardians of legal issues.
Unsurprisingly, judges are respectful of it and maintain this status quo in the face of even categorical human rights violations. A straightforward example is Shamima Begum’s case. She was refused access for trial in the UK — her hometown — because the Home Office had declared her a threat to the country. In the March of 2021, the Supreme Court, in determining the matter, upheld that executive security expertise superseded individual right to a fair hearing in their homeland.
However, compared with past, growth in the scope and nature of judicial review has been notable. For example, courts review the power exercised under prerogative (GCHQ case) and hear challenges to its legality (Bancoult No. case). More recently, they have determined the legality of treaty revocation. In Miller No. 1, they found that for departure from the European Union, parliamentary approval was mandatory. Moreover, in Miller No. 2, they found that the five-week prorogation of parliament by Prime Minister Boris Johnson was unlawful. The new balance now is to review executive powers and step back in situations demanding national security concerns.
The last relationship of legislature and judiciary is also intricate. Parliament makes laws and keeps them immune from judicial challenge. It is a settled principle of statutory interpretation that statutes violating human rights are valid. The weak protection is afforded by Human Rights Act of 1998. Under its section 4, Courts can issue a declaration of incompatibility against a law usurping Convention rights. However, such a declaration is advisory and has no force to invalidate the impugned law. Nonetheless, it whistle-blows breaches to the public, instigating massive protests and pressure for reform. If the pressure keeps mounting, it can lead to changes in law through ministerial remedial orders under section 10 of the Act. On the other hand, the judicial independence is maintained through self-restraint of parliamentarians. Under the sub judice rule, they refrain from making comments on the floor of the Parliament about cases awaiting judicial decision.
To conclude, the separation of powers in UK is another name for culture of institutional balance. This is achieved through varied checks; from political to legal. Over the last few years, the judicial oversight is noted over the parliament and the executive but it is far from habitual outreach.

The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be contacted at: mawraraja@protonmail.com