During the last weeks of the module, my work with deal with issues about the separation of powers, which is a very important concept in constitutional law. The separation of powers may be found in all democracies in the world, although in different types and manners. Moreover, the separation of powers is seen as vital, essential in order to protect the rule of law, concept we have described and scrutinized in the last few weeks. Why do academics and observers say that ? Because the separation of powers ideally leads to an independent judiciary, it permits, as Bradley and Ewing point out in their book, to insure that the government is acting according to law, according to the norms.
In order to write this part of my research, I will use some different sources: Bradley and Ewing’s textbook Constitutional and Administrative Law, Turpin and Tomkins’ textbook British Government and the Constitution, the 1765 case Entick v Carrington, Lord Hailsham’s Richard Dimbledy Lecture (1976), as well as Dr Cyril Brami lectures of French constitutional law.
In the UK, on the one hand the government seems able to control Parliament, but on the other hand, we can see the development of the independence of the judiciary, seen as a safeguard against the abuse of power. The British constitution does not enjoy a pure or a strict separation of powers. There is in the UK a partial separation of powers, with a balance of powers between Parliament and the government. The separation of powers is therefore an question / matter of degree. The House of Commons is able to withdraw its confidence in the government, and the Prime Minister can ask the Queen to dissolve Parliament. In practice, the government predominates over Parliament. There are of course counter-arguments, but we will not focus on them (backbenchers, withdrawal of Parliament’s confidence …) Indeed, the Monarch has to appoint the leader of the majority in the House of Commons as Prime minister, ministers are members of Parliament by convention, and both houses of Parliament have a minister as leader. These characteristics led Walter Bagehot to highlight the ‘nearly complete fusion’ between the executive and the legislature. The Prime Ministers have the support of the majority in the Commons, and government Whips try to ensure discipline in the ranks of that majority. Therefore we can deduce the government’s domination over Parliament, and that the government is able to see its bills voted and to conduct its policy within Parliament. A feature of the British constitution today is the predominance of the Prime minister in the institutions, an important concentration of power in his hands, which has been described by Lord Hailsham in 1976 as « an elective dictatorship ». Indeed the Prime minister is the leader of the majority party in the Commons, he or she dominates the Cabinet and has powers the other ministers do not have, he or she selects the ministers, controls the allocation of tasks of government and has the power to set the order of business.
On the other hand, some features of a strict separation of powers can be found in the British constitution. We must have a look at the role played by the judiciary, which remains independent from the executive and the legislature, and may act to protect the principle of separation of powers itself. In the Fire Brigades Union case 1995, the House of Lords sought to protect the competence of Parliament: Parliament has the mission to make the law and the government only has to implement it. In that case, the Secretary of State refused to implement an Act that needed to be implemented, which would have amounted to a repeal of this act, which would have never been applied in practice. In addition to that, the Courts have the role to prevent a possible abuse of power by the executive, including decision which could be unlawful or arbitrary. This seeks to protect individual freedoms and fundamental rights. In order to do this, it is necessary that the executive does not have the power to decide disputes or to condemn a person, particularly with regard to the European Convention of Human Rights. It has been demonstrated in the decision of the European Court of Human Rights in the V and T v United Kindgom case, where the Strasbourg Court held that the fact that the Home Secretary has the power to set the period of detention was in breach of Article 6 (1), which provides the right to a fair trial before ‘an independent and impartial tribunal established by law’. This decision could have been set up to encourage the British government to amend the criminal procedure, establishing a strict delimitation of powers: the executive authorities ought not interfere in the administration of justice. As we have seen, the judiciary is independent from the Government. Since 2009 and the application of the Constitutional Reform Act 2005, the judiciary is also independent from Parliament. This act provided the UK with a Supreme Court which was no longer the House of Lords. The House of Lords still has legislative powers, but now the new Supreme Court is only composed with professional judges.
Now, what about the French constitutional system ?
Before we start, we must remember the context of the creation of the Fifth Republic. It has been created when France was in war with Algeria – one of its former colonies -, and when the executive had difficulties to impose his views on the army. Moreover, the Third and the Fourth Republic are characterised by the lack of stability: 22 governments in 12 years during the Fourth Republic.
The President was seen as the main figure of the regime. He is elected every 5 years, using the universal suffrage system since 1962. He or she has very important powers, described by the Constitution: he is the warrantor of the national security, the national independence and protection of the territory, and he or she is the guardian of the Constitution (has to make it respected – article 5). The President has the right to dissolve the Assemblée nationale (tantamount to the House of Commons in the UK) according to article 12. According to article 8, he or she choses the Prime Minister, which is different from the UK where the Prime Minister is the leader of the majority in the Commons. The Prime Minister can be everyone, although he is very often chosen in the ranks of Parliament.
The Prime Minister, and his or her ministers, in practice have to from the same majority than in the Assemblée nationale. Why ? Because, as a counterweight, the Assemblée nationale is also able to reverse the Government led by the Prime minister by a vote (article 49).
Most often, the situation in France is the following: the President is the leader of a big party, he choses his Prime Minister from the same party, and the party wins the elections organised 2 months after the presidential elections. Therefore the same political ‘color’ leads the institutions.
In 1986, 1993 and 1997, an unexpected fact happened: the party of the President was beaten at the elections. Therefore the Prime Minister, at the head of the majority in the Assemblée nationale, was not from the same party than the President, the latter having seen his party defeated in the general elections. It is called cohabitation.
To my mind, what is most interesting today is the role of « Conseil constitutionnel », which is a Court that controls the law produced by Parliament. In the UK, it is seen as unbelievable, according to the principle of Parliamentary sovereignty. That Court, which is very powerful and can be seised by every citizen during a trial when this citizen is sure that a constitutional rule has not been respected by the law (art. 61), is composed by 9 chosen judges today. 3 judges are elected every 3 years: 1 by the President, 1 by the Assemblée nationale President and 1 by the Senat President (the other chamber of Parliament). They are not judges when they are chosen, they are often politicians, senior officials … There are also life-members, who are the former Presidents.
Why is that Conseil Constitutionnel so powerful ? Because the ordinary legislative procedure is the following: the Government prepares/lays out a Bill, this Bill is after voted by the its majority within Parliament, and after a claim may be brought before the Conseil constitutionnel. If that Conseil holds that this law does not respect the constitutional rules and principles, therefore this law cannot be applied in the future.
This challenges the civil law tradition, where judges only have to apply the law and interpret it when needed. In that civil law tradition, the rules and principles are abstract, and are written; they are then applied to cases. Those people, who are not trained as judges but are only chosen, or are former Presidents, are clearly able to decide on what the law should be, or what the law should not be. They decide what is the meaning of the constitutional rules, and how those rules should be applied in a particular case, on a case-by-case basis.