This assignment will describe and explain the emergence in England of the three separate arms of government that is the legislative, executive and judical. The focus of this assignment will be from the period preceeding the Norman conquest until the nineteenth century. Consideration will be given to key developments of the various arms of government through this period and the significance of these developments in creating the system that now exists in England. The separation of powers it has been said ought to be at the heart of any good legal system[1]. The rationale behind this is of course simple, and that is to prevent the concentration of power in the hands of one person. As Lord Acton famously said Lord Acton said: “Power tends to corrupt and absolute power corrupts absolutely[2]” Nonetheless whilst this separation of powers can be said to be the cornerstone of the current legal system, it has not always been that way.
Before discussing in detail the historical background to the English development of the separation of power, it is important first to understand what is meant when we talk of the separation of powers and why the separation of powers is of constitutional importance. The current English constitution divides the governmental functions into three discrete areas. The first of these being the legislature, this is the part of the government which is responsible for making the laws under which people live. In the current English constitution this function is the responsibility of Parliament[3]. The second governmental function is the “execution” of the laws which and this is undertaken by the executive branch of the government. The third governmental function is the judiciary and as Dicey stated, the citizen ought to be able to seek a remedy “in the ordinary courts of the land[4]” if they consider themselves to have been a victim of a government action conducted without statutory authority. This is known as judicial review in England. Judicial review empowers the courts the ability to determine whether or not executive actions falls within the limits prescribed by parliament and in addition to this the courts have some law making powers through the development of the common law. In summary therefore, in England, it can be seen that the doctrine of separation of powers therefore sets out that the executive cannot make law, nor can the legislative resolve disputes in civil cases or any one of the three branches implement the power of the other two branches. Further no person, in theory, should be a member of any one of the two branches. The reason for this, it was said by, Montesquieu states in The Spirit of Law, is to protect our liberty: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…. there is no liberty if the powers of judging is not separated from the legislative and executive…. there would be an end to everything, if the same man or the same body…. where to exercise those three powers.”3
Indeed that might be both true and desirable, but to achieve a pure separation of powers in practice is almost impossible and as will be demonstrated something which England has struggled to achieve over the years. Sir Ivor Jennings interprets the doctrine of the separation of powers denotation as that neither should execute the powers of the other, not that the branches should not have influence over the other. Sir William Blackstone agrees with him to a point but also considers that a total separation of powers might lead to the dominance of the executive by legislature[5].
Early examples of the English legal system certainly do not demonstrate a separation of powers and instead highlights an all powerful monarch. The Norman Conquest took place in 1066 when William the Conqueror came to the throne under which England was a feudal state. Under this feudal state all landowners in England owed an allegiance to the King. The King ruled in person and all laws were made by the king. The King received advice from his principal tenants in chief and bishops on a “councillor basis[6]”. The basis of the general body of law at this time was the concept that all land was owned by the King. It was not until the early twelfth century that the need for some separation of powers in the form of a parliament was recognised and in fact between 1154-1189, during the reign of Henry II, many argued for “a national council…. a complete council of feudal tenants in chief”
In 1297 the Magna Carta was confirmed, a milestone in the English constitution. Perhaps the most important principle developed in the Magna Carta, was the Rule of Law. The rule of law states that there is an inalienable right of any citizen who is accused of a criminal offence to a free and fair trial before their peers, and that not even the King should be considered to be above the law. During this period the institute of “parlimentum” was created, which described a council of bishops and peers. This development lead to a distinction as between the National or Great Council and the Kings personal advisors, Mackenzie describes this: “Parliament is the child of the national assembly and retains today its essential character as an advisory- critical if you like- assembly representative of the nation. In the course of time it has found the means to enforce its advice and make its criticisms effective but it does not itself govern. The King and his private council have developed into the whole complex machine which we call “the government”, i.e. the ministry and the civil service”[7].
During Edward I’s reign in 1272-1307 this parliament was composed of bishops, peers, knights, citizens and burgesses. In 1295 the writ of summons created the foundations of parliament as it is now understood stating that “that which touches all should be approved by all.” Immediately preceding this was The Confirmation of Charters. The Confirmation of Charters had as its aims the avoidance of levying new taxes without the consent of the realm and marks an important development in the separation of powers. The Revocation of the New Ordinances 1332 was also passed at this time, creating a very basic parliament. Parliament at this time also had a judicial function and was seen in some respects as a High Court, thus early Parliament carried out both judicial and legislative functions and thus was not demonstrative of the separation of powers. This early system also reflected the first division of the Commons and the Lords. However, the Lords (the Kings council) often met without the Commons being present, although the Revocation of the New Ordinances 1332 altered that, requiring assent from both the Lords and the Commons. Another important development around this time was that in 1327 it was understood that law was perpetual and that it would not simply be limited the reign of a particular monarch. The reign of Edward III during 1327 – 1377 has been described as the time in which “the definite and final arrangement of parliament in two houses[8]” occurred.
In 1362 legislation was passed that required Parliament to be held annually, although in principle this did not always occur, it was important recognition of the function and role of parliament. It was not until the fifteenth century that Parliament’s power was increased, when Parliament became where taxation law was created. This marked an important turning point in English constitutional history as without the consent of parliament, the King was not able to create new taxes. Whilst this development is important it should be recognised that despite the creation of parliament the King still maintained a large degree of power and summoned parliament, determined its form and could suspend or dissolve it as of right. The King could still suspend a statute and ordain law in his council. The King was commander-in-chief, solely in charge of the wealth of the nation and appointed all public officials. Thus during this period the separation of power was largely theoretical and did not in reality actually exist. The importance of this period and these developments is largely that there was recognition of the growing need to separate the three different arms of the government.
It was in the sixteenth century that the Houses of Parliament underwent one of its biggest changes, with both the House of Lords and the House of Commons growing substantially in numbers. Parliament became increasingly important and statute became progressively more important as a source of law and demonstrated real progress in the separation of powers. At the time Sir Thomas Smith, Secretary of State said: “the Parliament of England representeth and hath the power of the whole realm, both the head and the body[9]”
It was at the beginning of the seventeenth century that the elements that still remain in the constitution today began to emerge such as the monarchy, peerage, House of Commons, a service of permanent officials, courts and an inner council of advisors to the monarch[10]. Despite these important developments there was however no unified court system but instead many separate courts which claimed jurisdiction including the Common Law Courts, the Court of the High Commission and the Court of Star Chamber. The Petition of Rights in 1627 reasserted the law that taxation could not be asserted without the consent of parliament. This led to the dissolution of Parliament by Charles I. Charles I was executed in the English Civil War and Cromwell as Lord Protector operated under The Instrument of Government 1653[11].
Following the death of Cromwell, Charles II took the throne, restoring the monarchy, and co-existed with parliament by utilising patronage to secure votes in Parliament. This period saw the monarch subject to a number of checks and balances both in court and in Parliament and in 1667 the first parliamentary commission of public accounts was created requiring taxation to be used for the purpose for which it had been voted[12].
In 1688 the Bill of Rights was enacted which abolished the “dispensing and suspending” power. Thus the Bill of Rights established the notion of parliamentary privilege, which in the modern day allows any elected minister of Parliament or Lord to make accusations about individuals or companies in open debate in the chambers without fear of prosecution by securing the freedom of speech in parliament. In addition the Bill of Rights declared the levying of money for the use of the crown without parliamentary consent to be illegal. Thus the central purpose of the Bill of Rights was to ensure that the sovereign could only rule through parliament, this was ratified by The Coronation Oath Act which contained a pledge to govern “according to the statutes in Parliament agreed on[13]”.
In 1689 in his book, On Civil Government, John Locke[14] summarises the situation in the fifteen century, and recognising the three developing elements of the English constitution. The first of these was, of course, the Monarch who as has been seen could call and dismiss parliament and Parliament could not meet without being called by the Monarch. In addition no legislation could be approved without the monarch’s consent, in addition the Monarch appointed the Prime Minster. The Prime Minster was solely of the monarch’s choosing and was not elected by the people. The second element to the English constitution at this time was Parliament, who was elected by landowners, and was (at least in theory) independent of the crown. Parliament’s role was to initiate and discuss laws and to pass those laws which had received the approval of the Monarch. The third element was of course the judicature who were independent of the crown (again at least in theory) and were responsible for enforcing the laws made by parliament, custom and tradition. This demonstrates a very early separation of powers; however it is evident that at this stage the separation of powers was only theoretical and that the practice was something quite different.
Parliament developed further in the eighteenth century when it became recognised that the Kings advisors or cabinet must be a member of either the House of Commons or the House of Lords[15]. It was however the nineteenth century that saw the establishment of the constitution with separate legislative, judicial and executive functions. The role of the monarchy continued to diminish into the nineteenth century and Bagehot[16] argued that the role of the monarchy only amounted to “the right to be consulted, the right to encourage and the right to warn”. It was towards the end of the nineteenth century that this separation of powers developed further.
As has been demonstrated the period preceding the Norman Conquest until the nineteenth century was an important time in creating the separation of powers. Although the separate arms of government during this period did not create the institutions as we understand them though, this period saw the power of the monarch being slowly eroded. This period saw the move away from law based on religion and being created solely by the king and set the foundation for the separation of powers. During this time important doctrines such as the rule of law and parliament privilege were installed into the English legal system. Whilst the evolution of the three arms of government as we know them today occurred during the late nineteenth century and the early twentieth century[17], it would not have been possible to create these institutions without the occurrence of the fundamental developments during this period.
Bibliography
- Bagehot W, The English Constitution, 1963
- Dicey A, Introduction to the Study of the Law of the Constitution, London: Macmillan (1915) at pp 110
- Locke J, Two Treatises of Government: Key Philosophical Political Work, 2007
- Loveland I, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction, Lexis Nexis, 3rd Edition (2003) at pp 52-53
- Lyon A, Constitutional History of the UK”, Cavendish Publishing, 2003
- Mackay A & Lord Irvine of Laing, Human Rights, Constitutional Law and the Development of the English Legal System, Hart Publishing, 2003
- Mackenzie K, The English Parliament, Penguin Books page 11-12
- Patrick Parkinson, Tradition and Change in Australian Law, 2nd edition, 2001
- Pollard D, Parpworth N & Hughes D, Constitutional and Administrative Law: Texts with Materials, Oxford University Press, Oxford 2007, at page 5
[1] Mackay A & Lord Irvine of Laing, Human Rights, Constitutional Law and the Development of the English Legal System, Hart Publishing, 2003 at page 160
[2] Mackay A & Lord Irvine of Laing, Human Rights, Constitutional Law and the Development of the English Legal System, Hart Publishing, 2003 at page 175
[3] Loveland I, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction, Lexis Nexis, 3rd Edition (2003) at pp 52-53
[4] Dicey A, Introduction to the Study of the Law of the Constitution, London: Macmillan (1915) at pp 110
[5] Commentaries on the Laws of England (1765-69),
[6] Pollard D, Parpworth N & Hughes D, Constitutional and Administrative Law: Texts with Materials, Oxford University Press, Oxford 2007, at page 5
[7] Mackenzie K, The English Parliament, Penguin Books page 11-12
[8] Mackenzie K, The English Parliament, Penguin Books page 11-12
[9] De Republica Angolorum (The Commonwealth of England and the Manner of Government Thereof)
[10] Pollard D, Parpworth N & Hughes D, Constitutional and Administrative Law: Texts with Materials, Oxford University Press, Oxford 2007, at page 8
[11] Lyon A, Constitutional History of the UK”, Cavendish Publishing, 2003
[12] Patrick Parkinson, Tradition and Change in Australian Law, 2nd edition, 2001
[13] The Coronation Oath Act 1688, Section 3
[14] Locke J, Two Treatises of Government: Key Philosophical Political Work, 2007
[15]Patrick Parkinson, Tradition and Change in Australian Law, 2nd edition, 2001
[16] Bagehot W, The English Constitution, 1963
[17] See further Patrick Parkinson, Tradition and Change in Australian Law, 2nd edition, 2001