Opinion: The Separation of Powers

The French writer Montesquieu came to Britain in the 18th century and studied our political system. His observations became the basis of his seminal work, The Spirit of the Laws, and, misunderstanding the British system of the time, he formed the theory of the “separation of powers”, between the legislative (Parliament), executive (the king) and the judiciary. He wrote of the necessity to separate these branches of the government as:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

Over 250 years later, our system of government is still the fused one which in fact existed at the time of Montesquieu’s visit. The executive controls the legislature through the power of the whips. The insistence by Parliament that the king’s ministers be MPs so as to keep a check on them has become the exact opposite, the queen’s ministers keep a check on the MPs, either by invoking loyalty to the party, the prospect of a ministerial or committee post or other nefarious means. Government MPs have become neutered, occasionally finding a pair but never really subjecting the executive to the kind of in-depth scrutiny it requires. Select Committee reports, which do scrutinise the executive, are very rarely debated on the floor of the House and frequently fall into oblivion. MPs are scared of governments, when governments should be scared of MPs.

Page 18 of the 2005 Liberal Democrat general election manifesto stated:

“In recent decades Prime Ministers have exercised a growing domination over the political system, insufficiently accountable to Parliament or the people. We will curb this excessive concentration of power.”

Nothing about defusing power, which lies at the root of the current problems. The Prime Minister is powerful because he, by the rules of our parliamentary democracy, is the person who can command a majority in the House of Commons. It follows that if the PM can command a majority, the PM controls the entire House, with infrequent rebellions by backbench government MPs.

The best way to stop this is simple, the executive’s mandate should come from another source, the ordinary citizens. The legislative and executive branches of government should be elected separately, the voters should not be giving MPs a dual mandate (to represent them in Parliament and to support the government, if they are of the winning party). MPs should have one role: to represent their constituents in Parliament. The executive should have a separate mandate: to govern by the consent of the people, directly choosing the head of the government. The executive should not leech off the electoral mandate of MPs to support their position.

There is one obvious problem with this – if the executive, with all the powers it must necessarily be given, no longer depends on the legislature for its life, how can the executive be kept in check between elections – how do we stop an elective dictatorship? Of course the legislature will still be the prime legislative body and so the executive will still require the consent of Parliament for its bills.

But what about administrative abuses, patronage or corruption? With a separate mandate, the PM will no longer be a member of parliament and it would be expected his ministers would not be either. His ministers should, however, be confirmed by a simple majority of the Commons. The long dormant impeachment procedure should be emphasised, perhaps by a positive vote in the Commons confirming its existence, possibly with new rules. It would apply, of course, not just to the PM, but to ministers also.
On a day to day matters, ministers would still be required to attend question times and, when a government bill is being debated, advocate the government’s position. The only difference is they would not be able to vote in the lobbies. Parliament would be capable of forcing the appearance of any minister, if necessary by threat of arrest for non-appearance.

The executive would thus become controlled by Parliament and ordinary citizens, but it would depend on MPs being ready and willing to face up to the executive when party loyalty conflicts with parliamentary responsibility, but that tension could only be removed by the abolition of parties themselves. And that would hardly strengthen democracy.

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7 Comments

  • johnhemming 1st Jan '07 - 10:38pm

    Gavin is good on constitutional issues that are not generally understood. This is an example.

  • Antony Hook 2nd Jan '07 - 12:03am

    I agree with almost all of the above.

    It’s worth bearing in mind that the position of “Prime Minister” arguably doesn’t exist. It was just a nickname until about a century ago.

    You won’t find a single statute that refers to the Prime Minister, although hundreds explicitly refer to the Lord Chancellor and practically every modern statute refers to the office of Secretary of State.

    The Prime Minister’s role is given shape by a number of conventions.

    There may be a strong argument for enshrining the powers and duties of the head of government in clear legislation.

    A seperately elected government might not, however, create the greater independence of parliamentarians that we might hope.

    It would depend to an extent on how important, for re-election and other purposes, remain the central party organisations and who controls those central organisations.

    I’ll give you two examples. Firstly, the fact is that very many voters back parliamentary candidates based on which leader-figure they support. In 1918 pro-Asquith Liberals lost huge numbers of seats. Lloyd George Liberals did much better because of Lloyd George’s far greater popularity in the country. Likewise, in 2009? people who previosuly voted for their Labour parliamentary candidate may abandon the very same candidate because she is now associated with a less popular leader-figure.

    Seperate elections wouldn’t massively change that. Winning parliamentary candidates will still often be those who say “As MP I will back the agenda of [Insert Popular Leader Figure]”.

    Secondly, is the issue of money. The fact is that central parties currently raise much more money than local parties or parliamentary candidates. Few parliamentary candidates (especially challengers but also incumbent MPs) can win without finance from their central party. That gives central parties an obvious leverage of legislators.

    A radical change worth considering would be to limit donations to central parties and say that donations must be to local parties or to individual candidates.

  • Baby & bathwater.

    I’ve been strongly opposed to separation of powers for ages, the more I read about it, the more I look at countries that use it fully, the more I think it’s a bad idea.

    Gavin’s right about Parliament now failing to do the job. The solution is to implement our longstanding policy of STV for the HoC, and then, as in other countries, MPs will find it in their interest to hold the Exec to account, and one-party rule will cease to be. If the opinion of Parliament matters, and MPs stop buying into the ‘party loyalty got me my job’ schtick that keeps getting bandied about by all sides, then maybe Parliament could get somewhere. As it is, it remains supine.

    It has teeth, but it has no incentive to use them. STV would give that incentive. If it doesn’t work, then think about a change to the fundamentals of parliamentary democracy and Govt. But try the needed fix first?

  • Bernard Salmon 5th Jan '07 - 11:40am

    I certainly think that the issue of executive domination of the legislature does need to be looked at, and I am sympathetic to arguments for separating out the executive from the legislature, but I think having separate elections for the executive wouldn’t really work. Part of the solution is for PR, to avoid single-party dominance, but also to have a strong committee system which can really scrutinise legislation properly, as in the Scottish Parliament.
    Gavin, in your comment to your posting, I take it you mean George Bush Sr?

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