This blog will now make a bold and iconoclastic claim, which is that Charles-Louis de Secondat, Baron Montesquieu, was wrong. This Anglophile French aristocrat admiringly described our constitution as being based upon the principle of separation of powers (a concept that he defined). I want to argue that it is not based on this principle; it is rather based upon parliamentary sovereignty and government by the Queen in Parliament.
The theory of separation of powers is that the system of government works more justly and efficaciously if the three branches are distinct institutions. These three branches are the executive, the legislature and the judiciary. In the United States, which relied on Montesquieu’s theory for its constitution, this principle is most clearly manifested. In the U. S. the executive is a distinct office: the presidency. The legislature is also distinct as the two houses of Congress and then the judiciary separate again, with the highest court being the Supreme Court. If you are member of one you cannot be members of the other branches.
In the United Kingdom, however, our system is very different. The ministers of the Queen, who exercise executive power of the Royal Prerogative are members of the legislature. Recently, in adherence to Montesquieu’s theory, the Law Lords, our most senior judges were taken out of Parliament and a new American-style Supreme Court was created.
I believe that this reform to our judicial system was a mistake, because our system does not work as Montesquieu thought and we do not have the same system as America. Rather than the Law Lords being an anomaly, the Supreme Court is now the anomaly in our constitution. It brings with it new problems to which our constitution is not suited, such as activist judges who make the law. This risks opening a can of worms as to whether our judges should be elected if they are making law. That brings with it the issue of party politics creeping into justice.
The whole principle of our system of government depends on the unity of two institutions -–Monarchy (the executive and fount of justice) and Parliament (the legislature). When these two institutions are in synthesis our system is stable. Civil strife, whether between De Montfort and Henry III or Charles I and Oliver Cromwell occurs when these two ancient institutions are out of kilter.
Since William of Orange, stability has reigned and monarchy and parliament have been synthesised. Thus while the Queen’s bishops, ministers and until very recently, judges sit in Parliament, the Royal Prerogative is exercised by ministers who are elected Members of Parliament. And this system works, not because some founding fathers sat down and wrote out a constitution based on all their learning, but it works through organic evolution.
We have a system where ministers of the Crown are not disconnected from the man-on the-street and the local community. This is because, even the Prime Minister still has constituency matters to attend to as an MP. Ministers remain grounded and rooted in the country because they are not only appointed by the Queen (through the Prime Minister’s exercise of the Royal Prerogative), but are also elected by a local constituency.
For those overly squeamish about the Law Lords sitting in the upper house of Parliament, it should be remembered that by convention they did not vote on legislation, but their expertise was there for the upper house to call upon as it revised legislation.
Indeed convention is all-important in our unwritten constitution. In law the Queen has the power to exercise her prerogative, by convention it is exercised by her first minister, who is an MP.
This Parliamentary system of constitutional monarchy works because it is flexible. There is not the gridlock between executive and legislature found in the American system. The trouble is that too many of our politicians remember vaguely from their PPE degrees that separation of powers was a Good Thing and therefore, ignoring the evidence of their eyes that our organic system works, they cannot resist tinkering. That is why we have a downgraded Lord Chancellor and have expelled the Law Lords from Parliament. And we are worse off for it.