Written by Rory Hamilton Coggins

 

In his seminal and oft quoted book, The English Constitution, Walter Bagehot famously described the “fusion” of powers in the United Kingdom between the executive and legislative branches.[1]This article will explore the idea of fusion in a modern context. In short — is “fusion” of powers the right approach?

But first, in order to make an informed value judgement, care needs to be taken to define the desired outcome of separating legislative and executive power. The least nuanced view is that the separation of powers is simply about technical and astringent separation between different governmental fiefdoms. Really, such a narrow view of the separation of powers actually invites greater abuse of power — it’s just confined to the specific branch.

Those words — “abuse of power” — are key to a nuanced view of the separation of powers. The ultimate goal is not separation, but rather, it’s to create a system of checks and balances that prevent the abuse of power by any individual branch. Detailed consideration of “constructive breaches” (violations of pure separation that actually prevent abuse) and “destructive breaches” is not necessary for our purposes, but it’s important to know that they have a role to play in preventing the abuse of power. As mentioned, if no branch of government can exercise any power over another because the separation between them is so absolute, this invites abuse of power in each branch. Likewise though, if the fusion of the branches is taken too far, they stop policing one another and the potential for abuse increases again.

It’s already necessary to rephrase our question. The concept of “fusion” is no longer on trial — some degree of fusion is critical to the effective operation of the separation of powers doctrine. But how far should the fusion extend, and more specifically here, is the fusion of the legislative and executive in the United Kingdom, as described by Bagehot, really appropriate or even necessary?

Bagehot explains how the American Founding Fathers “wished to keep ‘the legislative branch absolutely distinct from the executive branch’; they believed such a separation to be essential to a good constitution”.[2]Furthermore, they felt that “to the effectual maintenance of such a separation, the exclusion of the President’s ministers from the legislature is essential.”[3]

With those aims in mind, it’s obvious as to why the Presidency and the executive branch is so isolated from Congress. Suffice it to say, the same approach was categorically not taken in the United Kingdom. The Prime Minister, and all of her cabinet, are as much members of the legislature as any other MPs. Their executive function is built directly on top of their legislative function. This overlap ( or indeed fusion) and it’s positives and negatives are what warrants consideration.

One of the most distinguishing features of executive fusion in the United Kingdom can be summed up in one word — responsibility. MPs that take on a ministerial role are also taking on a huge amount of work and responsibility over their normal Parliamentary duties. In part, this is a positive because it facilitates handling of all of the administrative trappings of government in a specialized and efficient way. But what of the newly minted minister’s constituency? Surely, the Prime Minister cannot dedicate as much time and attention to the concerns of, and advocacy for, her constituents as can a MP who is unburdened by executive responsibility. The quick counter argument to this, that the increased power and administrative support wielded by a minister will benefit their constituents, might have some force. However on inspection, it seems to be equally unfair to constituencies that are not fortunate enough to have a minister representing them. It is not at all desirable that the effectiveness of a constituency’s representation, one way or the other, should depend on whether or not their MP is a government minister.

Executive fusion also raises questions about accountability. Some might argue that having ministers as MPs increases their accountability. They are directly answerable to all other Members of Parliament, and can be questioned and prodded on any controversial issues. In theory, they are not able to hide behind the bureaucracy of their ministry and aides when faced with tough questions. The concerns of fellow MPs must be dealt with head on. The Parliamentary institution of Prime Minister’s Question Period is an excellent example of this in action. However, ministers still frequently resort to dodging questions by offering written answers later on (read: when they get the answer from their aides.) Furthermore, sometimes even the most pointed questioning does not translate into actual accountability. The Fire Brigades Unioncase centred in part around a brazen statement made in the House of Commons by the Home Secretary, in which he announced that he never intended to comply with his statutory obligations under the Criminal Justice Act 1988.[4]It ultimately took the intervention of the courts to resolve the matter.

Perhaps it’s also useful to explore exactly why the Home Secretary felt emboldened enough to make his statement. It emerges from another feature of executive fusion — legislative dominance by the government. A party’s invitation to form a government will almost always be by virtue of their having gained a majority in the House of Commons. Therefore, this party will automatically have the Premiership, be in control of the entirety of the executive branch, and will have majority voting power in the Commons. Add on to this the radically diminished political power of the House of Lords and the reluctance of the courts to do anything that would even remotely appear to infringe Parliamentary Sovereignty, and you have a government with unmatched power in two key branches of government. In a system without executive fusion, it’s equally conceivable that a single party couldgain control of both the executive and legislative branches separately — the unique feature of executive fusion is that it makes it a technical certainty. The courts have a role to play in ensuring that the executive remains accountable (to Parliament, if nothing else) and they frequently exercise that role. In UNISON, the Supreme Court readily struck down unlawful secondary legislation drafted by the Lord Chancellor.[5]Of course, accountability can also come in the form of elections, which depose ineffective or unpopular governments and ministers. However, elections are a fairly blunt instrument for ensuring accountability — and even more so when the government also exercises a degree of control over when they’re held.

The question we set out with is, admittedly, a somewhat trivial one. It’s not particularly important whether or not executive fusion is the right approach, because there is very little we can do to change it. The prospect of the UK radically altering the structure of Parliament and the government to create a separate executive would be absurd. However, this seemingly trivial question might offer some useful answers to a different, broader question. Namely, how to work to eliminate some of the problem areas and potentials for abuse of power that are associated with such a powerful executive branch. There is an important role to be taken up by the courts in protecting society from the worst excesses of executive power. This is not something that should lightly be ignored. It is crucial for this review to continue to exist and to challenge any misuses of power, if our current separation of powers is to work effectively.

 

 


[1]Bagehot, Walter. The English Constitution. 2nd ed. 1873. 48.

[2]Bagehot, Walter. The English Constitution. 2nd ed. 1873. 57.

[3]Bagehot, Walter. The English Constitution. 2nd ed. 1873. 57.

[4]R v Secretary of State for the Home Department, ex parte Fire Brigades Union[1995] 2 AC 513

[5]R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)[2017] UKSC 51