SEPARATION OF POWERS: 20 YEARS OF THE COMMONWEALTH LATIMER HOUSE PRINCIPLES
HOW DOES THE SEPARATION OF POWERS IMPACT THE FUNCTIONING OF DEMOCRACY IN THE COMMONWEALTH? An expert from the UK House of Commons Library shares his research findings. I. Introduction 2023 marks 20 years since the Commonwealth (Latimer House) Principles were endorsed by Commonwealth Heads of Government in Abuja, Nigeria.1 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.2 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: 1. Ensure no one body or institution governs alone. 2. Act as a protection against arbitrary or unlimited government. 3. 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. 4. Ensure checks against the actions of one branch through the actions of another.3 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.4 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.5
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.6 The Commonwealth Latimer House Principles state that the three branches should be constituted separately, and each should respect its particular duties and independence.7 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.8 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).9 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.10 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.11 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).
Dr Philip Loft is a 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 at https://commonslibrary. parliament.uk/uk-overseas-territories/.
The Parliamentarian | 2023: Issue Four | 100 years of publishing | 301
