Written by Dr Philip Loft, Senior Library Clerk in the UK Parliament’s House of Commons Library researching the Commonwealth and the UK’s Overseas Territories. You can read the Library’s research on the Territories on its Overseas Territories hub by clicking here.
This article was first published in The Parliamentarian (2023 Issue Four)
I. Introduction
2023 marks 20 years since the Commonwealth (Latimer House) Principles were endorsed by Commonwealth Heads of Government in Abuja, Nigeria.[i] The commitment for Commonwealth states and territories to achieve the separation of powers between the Judicial, Executive and Legislative branches builds on long-standing democratic principles.
In 2009, Commonwealth Secretary-General Kamalesh Sharma argued that the question of how well a state achieves the separation of powers must be continuously posed. This, he suggested, would avoid the “dangerous vulnerab[ilty] to poor governance, corruption and instability” that can result if the separation of powers is dissolved.[ii]
This article sets out the importance of an effective separation of powers to the functioning of democracy and some of the challenges in achieving this within the Commonwealth.
II. The separation of powers and democracy
Ensuring the exercise of power is shared between the Executive, Judicial and Legislative branches is, at its core, an attempt to:
- Ensure no one body or institution governs alone.
- Act as a protection against arbitrary or unlimited government.
- Allow the representation of different interests, ideas and principles as law circulates through the three bodies, for example legal principles, popular consent and the needs of the state.
- Ensure checks against the actions of one branch through the actions of another.[iii]
As Indian economist, philosopher and Nobel-Prize winner Amartya Sen has noted, democracy has long been seen as government by “conversation” or “discussion,” and not solely balloting and elections.[iv]
The separation of powers is arguably a powerful means to make this ideal a reality. Under the separation of powers, laws and policies must be proposed, scrutinised and potentially amended, before being passed, and even then, are subject to ongoing scrutiny and challenge.
III. Defining the separation of powers
The long-standing political principle of the separation of powers and achieving balance between the three branches has been increasingly considered essential in maintaining democratic and representative government.[v]
In an ideal model, the three branches of government should perform distinct tasks—the Legislature making the law, the Executive putting the laws into effect and perhaps taking the lead in proposing them, and the Judiciary interpreting the law and ensuring it is upheld.
The separation of powers can be interpreted as maintaining the separation of institutions or of personnel, in addition to each branch performing different functions.[vi] The Commonwealth Latimer House Principles state that the three branches should be constituted separately, and each should respect its particular duties and independence.[vii]
The Principles set out that judicial appointments should made without influence of the Executive or Legislature, oversight of the Executive by Parliaments should be properly supported, and the Legislature and Judiciary should have sufficient funding to perform their respective roles.[viii]
However, particularly in Commonwealth states that have inherited the UK parliamentary model, there can be overlap in these functions and personnel. This is because the Executive might:
- Sit within the Legislature.
- Perform a significant role in judicial appointments (as was the case in the UK until reforms in 2006).
- Make some forms of law (as may the Judiciary).[ix]
IV. Challenges in achieving the separation of powers
1. The balance between separation and supervision
According to academic Aileen Kavanagh, the desire to separate the three branches must also interact with the principle that each branch has a responsibility to check and balance the actions of another. This leads to the question of how to balance separation with supervision.[x]
The Commonwealth Latimer House Principles recognise this tension, with Parliaments and the Judiciary recommended to work in a “complementary and constructive manner” and for the branches to “respect” the duties of the other.[xi]
Supervisory actions can include establishing audit commissions to monitor public finances or adhering to a model of constitutional supremacy, where all laws and actions are judged against constitutional provisions (in contrast to the model of parliamentary supremacy).
2. The ‘Westminster system’ and Executive membership of the Legislature
The ‘Westminster system’ broadly refers to a system where the effective head of government (usually termed the Prime Minister or Premier), together with their Cabinet, sit in the Legislature while wielding Executive power. The role of the Governor-General (in a Commonwealth Realm) or President (in a Republic), in contrast, is often limited.
This system was inherited by many Commonwealth jurisdictions at their independence from the United Kingdom.[xii]
The Executive presence in Parliament may facilitate scrutiny—provided necessary procedures are in place.
In many states, there is no rule on how many Members of the Legislature can be Ministers, often leading to a substantial Ministerial bloc in a jurisdiction’s Parliament. Around a third of the UK House of Commons are Ministers or have unpaid government positions, for example, while India’s constitution states that no more than 15% of the Members of the lower house (Lok Sabha) may hold Ministerial office.[xiii]
In smaller Parliaments, it is possible that all Members of a governing party are Ministers. This puts greater pressure on a small number of backbenchers to undertake scrutiny roles. It also makes establishing cross-party Committees to scrutinise the Executive challenging.[xiv]
3. Parliamentary independence from the Executive
Published in 2020, the Commonwealth Parliamentary Association’s (CPA) ‘Model Law for Independent Parliaments’ recommends that Parliaments establish their own corporate bodies to strengthen their institutional, financial and administrative independence from the Executive.[xv]
On the launch of the model, the CPA said there were “many examples […] everyday” in Commonwealth Parliaments of “Executive interference” that can result from a lack of parliamentary control over their own finances, staffing and physical infrastructure.[xvi]
According to Inter-Parliamentary Union (IPU) data, 18% of IPU members globally (31 out of 172) report that the Executive continues to have sole responsibility for preparing their country’s parliamentary budget, while 17% (29) have a shared responsibility with Parliament. [xvii]
4. Continuing influence of the Executive over judicial appointments
2015 research by the Bingham Center also found continuing Executive influence over judicial appointments in the Commonwealth.
In 15 of the 48 Commonwealth independent jurisdictions (27%), it was the Executive, rather than a separate judicial appointments commission, which had the sole power to appoint members to the country’s highest court (for this study, the six states covered by the Eastern Caribbean Supreme Court counted as a single unit).
The Chief Justice (or equivalent) position was also appointed by the Executive in half of Commonwealth states.[xviii]
5. Inclusive institutions
Even with effective institutions, representative government and perceptions of democratic fairness can be limited if not all groups are represented. The role of the separation of powers in drawing on a range of different evidence, knowledge and values will therefore be limited.
Inclusive Parliaments are particularly important given that in many jurisdictions the Executive has taken the lead in proposing legislation, with the Legislature playing a primarily scrutinising role. This role is strengthened if Parliaments are representative and accessible to the wider public.
Across the Commonwealth, in 2023 only two Parliaments (New Zealand until its October 2023 elections and Rwanda) have achieved gender parity in their national Parliaments, and only 19 of 56 Commonwealth Parliaments have reached the Commonwealth target for 30% of their Members to be women.[xix]
Global data on the inclusivity of the judiciary and public services is largely lacking. Data collected for UN Sustainable Development Goal 16 on inclusive governance suggests that no world regions have seen their Legislatures consist of an equal proportion of the under-45s compared to the population they represent, and few countries so far have achieved equal representation for women in the judiciary.[xx]
6. Small jurisdictions
The Commonwealth Latimer House Principles recognise that “small and/or under-resourced jurisdictions” may experience challenges in achieving a strong separation of powers.[xxi]
2014 research by the UN Development Programme notes that while the populations of small island states is often conducive to strong democracy as politicians are closer to their constituents, their size can create challenges in establishing strong governance institutions. These include:
- A high proportion of MPs being members of the Executive, given their small Parliaments.
- A lack of human capacity and financial resources to allow individuals to specialise and work for a single branch of government.
- A risk of political influence over the civil service.[xxii]
The pooling of resources and expertise offers one potential means to address the challenge of scale—such as the Eastern Caribbean Supreme Court. Originally established under the UK's West Indies Act of 1967, it continued to hear appeals from six Commonwealth Caribbean states post-independence.
7. The UK’s Overseas Territories
The UK’s Overseas Territories, 9 of whom are members of the Commonwealth Parliamentary Association,[xxiii] face an additional unique challenge in establishing a strong separation of powers. This is because the UK Parliament retains legislative supremacy over them (though this is rarely exercised), and the UK Privy Council also has substantial judicial and legislative powers.
While the larger Territories generally have a UK-appointed Governor (as head of government), a locally-elected government and a Premier or Chief Minister (who is usually the leader of the majority party in the Legislature), together with a judiciary and elected Parliament, there are no checks within the Territories on the UK Parliament’s power. Instead, checks are primarily in the UK through the judicial branch, which can regulate the actions of the Privy Council without disallowing its interventions entirely (and without affecting those of the sovereign UK Parliament).
Aside from Gibraltar and the lower house of the Bermuda Parliament, all Territory Legislatures also have at least one Member of Parliament appointed by the local Executive—typically an Attorney-General or Financial Secretary.[xxiv] Having Members appointed by the Executive is against the CPA’s ‘Recommended Benchmarks for Democratic Legislatures’.[xxv]
V. Summary
Democracy is not solely (or even mainly) about ballots but how law is made and enforced, and how consent is gained and maintained.
As the Commonwealth Charter emphasises, an effective separation of powers ultimately helps protect the rule of law, fundamental human rights, and good governance. However, across the Commonwealth—in both large and small states—there will continue to be challenges in meeting this objective.[xxvi]
References:
[i] Commonwealth Secretariat, Abuja Communiqué, December 2003
[ii] Commonwealth (Latimer House) Principles, November 2003, “Foreword”
[iii] M.C.J. Vile, Constitutionalism and the separation of powers, 1967
[iv] Amartya Sen, The idea of justice, London, 2009, pp324-7
[v] M.C.J. Vile, Constitutionalism and the separation of powers, 1967
[vi] Aileen Kavanagh, The constitutional separation of powers, in David Dyzenhaus and Malcom Thorburn, eds, Philosophical foundations of constitutional law, Oxford, 2016, p223
[vii] Commonwealth (Latimer House) Principles, 2003, “Objective” sections I to IV.
[viii] Commonwealth (Latimer House) Principles, 2003, “Annex”, sections I to III
[ix] Jan va Zyl Smit, The appointment, tenure and removal of judges under Commonwealth Principles, 2015, para 1.4.1
[x] Aileen Kavanagh, The constitutional separation of powers, in David Dyzenhaus and Malcom Thorburn, eds, Philosophical foundations of constitutional law, Oxford, 2016, p233
[xi] Commonwealth (Latimer House) Principles, 2003, “Objective” sections I to IV.
[xii] Derek O’Brien, The Commonwealth Caribbean and the Westminster model, in Richard Albert, Derek O’Brien and Se-Shauna Wheatle, eds, Oxford Handbook of Caribbean Constitutions, Oxford, 2019, pp131-61
[xiii] Institute for Government, Payroll vote, updated March 2023 and Constitution of India, as amended to 2022, section 74
[xiv] CPA, Recommended Benchmarks for Democratic Legislatures, 2018, p22
[xv] CPA, Model Law, 2020
[xvi] CPA, Model Law, 2020, section 2
[xvii] Inter-Parliamentary Union, Global data on national Parliaments
[xviii] Jan va Zyl Smit, The appointment, tenure and removal of judges under Commonwealth Principles, 2015, paras 1.4.9 and 1.4.21
[xix] Commonwealth Secretariat, Fast facts on gender equality in the Commonwealth, May 2023, p1
[xx] Our World in Data, Sustainable Development Goal 16, July 2023 and UN Economic and Social Council, Progress towards the Sustainable Development Goals 2023: Statistical annex, July 2023, indicator 16.7.1
[xxi] Commonwealth (Latimer House) Principles, 2003, “Annex”, principles
[xxii] UN Development Programme, Complexity in Small Island Developing States, 2014, pp11,13-14
[xxiii] CPA Branches A to Z
[xxiv] UK House of Commons Library research briefing, The separation of powers in the UK’s Overseas Territories, 2022
[xxv] CPA, Recommended Benchmarks for Democratic Legislatures, 2018, section 1.1.1
[xxvi] Commonwealth Charter of 2013, section 6
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