1.

‘Parliament has more control over the executive if the executive is

using statutory powers than it does if it is using prerogative powers.’ –
Webley and Samuels, Complete Public Law: Text, Cases and Materials
(5th ed, OUP, 2021) at p 149.

There are a few significant factors that we must take into

consideration when assessing this statement.
firstly, what is statutory power and prerogative power.
secondly, if the parliament has more control over the executive if the
executive is using statutory powers than it does if it is using
prerogative powers. We will assess this statement by offering strong
arguments in support of them.

Firstly, what is statutory power and prerogative power.

Statutory powers are those that the Parliament grants to the

government through legislation. This indicates that the government
has received express permission from Parliament to use certain
powers. The laws that establish statutory powers typically have a
number of restrictions and requirements. There are various ways to
exercise statutory power. For instance, it can be used to create any
kind of subordinate legislation, such as a regulation, rule, bylaw, or
order, as well as to issue any kind of notice or instruction. It may also
be used to exercise a statutory decision-making power, compel
someone to take an action or refrain from taking one that, absent the
requirement, they would not be required to take by law, take an
action or refrain from taking one that, absent the power or right,
would constitute a violation of someone's legal rights, or conduct any
investigation or inquiry into the rights, powers, privileges, duties, or
liabilities of someone. 1
The Crown or government ministers acting on the Crown's behalf
have the prerogative to exercise these functions. Parliament does not
grant them to the government; instead, the Crown has long held title
to them. Other than those established by the common law, there are
no restrictions or constraints placed on prerogative powers. This
indicates that prerogative powers can be used by the government

1
<statutory power Definition | Law Insider> accessed on 03 June 2023

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 without going through Parliament. the ability to make war and peace,
negotiate and ratify treaties, appoint, and remove ministers, establish
and dissolve Parliament, bestow honours, and pardon criminals are
only a few of the most significant prerogative powers. Prerogative
power usage has generated debate in recent years. Some people
contend that the government shouldn't be permitted to use any
authority that isn't overseen by the legislature. Others contend that
in order for the government to be able to react to unforeseeable
circumstances, prerogative powers are required. It can be difficult to
strike the right balance between prerogative and statutory powers.
Which kind of power to utilise in a specific circumstance is a difficult
question to answer. The optimal course of action will change
depending on the particular situation.2

secondly, if the parliament has more control over the executive if the
executive is using statutory powers than it does if it is using
prerogative powers.

The UK Parliament is the supreme legislative body in the UK. It has

the authority to enact laws, approve the budget for the government,
and hold the government responsible. On the other side, the
executive is in charge of enforcing the laws that Parliament passes.
The Prime Minister, who is the leader of the party with the most
members in Parliament, is in charge of the executive. Statutory and
prerogative powers are the two basic categories of authority available
to the government.3

It was stated by Lord Browne Wilkinson that no legislative powers

have been granted, hence the prerogative powers remain until and
unless the statutory requirements are implemented.4

The Crown's authority to act will only be used going forward by and in
accordance with the statute once it has been passed and while it is in
effect.5
2
<Prerogative Powers: What are they, and where do they come from? – Constitutional Law Matters> accessed
on 03 June 2023
3
<Parliament's authority - UK Parliament> accessed on 03 June 2023
4
Lord Browne-Wilkinson, Fire Brigades Union [1995] 2 AC 513 at p. 552
5
Attorney-General v De Keyser’s Hotel [1920] AC 508 at p. 540

Page | 2
 In the case of Attorney General v. R (Jackson) [2005] UKHL 56, the
Supreme Court has stated that the authority to declare war is a
responsibility that is reserved for Parliament and not the executive
branch. Additionally, the Court has clarified that the executive cannot
abuse its prerogative powers to impede upon the basic rights of
individuals without first obtaining the approval of Parliament. This
decision serves as a crucial reminder of the importance of ensuring
that all branches of government adhere to the principles of
parliamentary sovereignty and respect for individual liberties.6

In this article, Tomkins argues that the Human Rights Act has reduced
the authority of Parliament. Tomkins argues that the Human Rights
Act gives judges the authority to invalidate legislation they deem to
be in conflict with the law pertaining to human rights. He contends
that since Parliament is no longer the only institution with the
authority to enact laws, it is no longer sovereign.7

In the case R (Evans) v Attorney General [2015] UKSC 21, The

Supreme Court ruled that the executive may not use its prerogative
powers to prevent the release of information sought under the
Freedom of Information Act of 2000. the letters that Prince Charles
had addressed to government ministers were sought to be made
public. A certificate issued by the Attorney General under section 53
of the Freedom of material Act 2000 gave him the power to veto the
disclosure of any material that had been sought in accordance with
the Act. The certificate was declared invalid by the Supreme Court
because it was in conflict with EU law.8

In the case of R (Miller) v Secretary of State for Exiting the European

Union [2017] UKSC 5, The Supreme Court ruled that the government
could not initiate withdrawal from the European Union by formal
notification to the Council of the European Union as required by
Article 50 of the Treaty on European Union without an Act of
Parliament giving the government permission to do so. This case also
6
Attorney General v. R (Jackson) [2005] UKHL 56
7
Parliamentary Sovereignty after the Human Rights Act’ (2005) Public Law 275
8
R (Evans) v Attorney General [2015] UKSC 21

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 serves as an illustration of how Parliament may limit the use of
prerogative powers by the executive. Treaties only have legal force in
international law; acts of Parliament are required to give them legal
force in domestic law. The ability to enter and break treaties is a
prerogative exercised by ministers on behalf of the Crown.9

Parliament has more control over the executive when the executive is
using statutory powers than when it is using prerogative powers
because when the government uses statutory powers rather than
prerogative ones, Parliament has more influence over it. Due to the
fact that Parliament has the authority to alter or abolish laws, the
executive's statutory powers may be eliminated or curtailed. Through
committees and discussions, the legislature has the ability to examine
how the administration is using statutory powers.

In conclusion, when statutory powers are used, it is true that

parliamentary influence over the executive is increased. A framework
for scrutiny, amendment, and review by Parliament is provided by
statutory powers, which are derived from legislation, and it ensures
executive accountability. Prerogative powers, which are based on
previous executive authority, provide the executive more discretion
and tighter parliamentary control. Judicial review can help to some
extent to make up for the absence of parliamentary supervision, but
it cannot take the place of the thorough examination and
accountability built into the legislative process. To guarantee the
stability of democratic administration and uphold the ideals of
accountability and transparency, it should be a priority to strengthen
legislative oversight over prerogative powers.

2. ‘It used to be said that the doctrine of the separation of powers is a

comparatively weak principle in the English constitution. As between
the legislature and the executive that is still so ... But the separation
of powers between the legislature and executive, on one hand, and
the judiciary, on the other hand, has been greatly strengthened.’ –

9
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

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 Lord Steyn, ‘Democracy, the rule of law and the role of judges’ [2006]
European Human Rights Law Review 243, at p 247.

When analyzing this statement there are few important things that
we have to consider. firstly, what is the doctrine of separation of
powers. secondly, is the doctrine of separation of powers
comparatively weak or strong principle in the English constitution.
furthermore, how judiciary has been greatly strengthened. we will
analyze these statements by providing convincing justifications for it.

Firstly, what is the doctrine of separation of powers.

The doctrine of constitutional law known as "separation of powers"

states that the executive, legislative, and judicial parts of government
must remain independent of one another. Because each branch is
given specific capabilities in order to check and balance the other
branches, this is also known as a system of checks and balances.10

French philosopher Montesquieu first used the phrase "separation of

powers" in his publication The Spirit of the Laws in the 18th century,
it is a model in which the parts of government are separated like the
legislative branch is responsible for making laws, the executive branch
for enforcing laws, and the judiciary branch for interpreting laws and
administering justice. According to Montesquieu, this divide would
safeguard the people's freedom by preventing any one branch from
abusing its authority.11

The criticisms to Montesquieu's definition are that the claims that

separation of powers does not by itself ensure accountability or
prevent cooperation between branches. Montesquieu's error was
based on two mistakes. Firstly, according to Montesquieu the primary
exercise of powers could only be divided permanently in cases when
they were of a different nature. Second, Montesquieu overlooked the
fact that executive and judicial expositions of existing law have a
legislative function.12
10
<separation of powers | Wex | US Law | LII / Legal Information Institute (cornell.edu)> accessed on 05 June
2023
11
Montesquieu, De L'Esprit des Lois (Spirit of the Laws), 1748
12
Oxford Journal of Legal Studies. Autumn2005, Vol. 25 Issue 3, p419-451.

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 By separating powers, each branch of government develops a system
of checks and balances that serves as a check on the others. This
system aids in preventing abuses of power, encouraging
accountability, and upholding the rule of law. The ability of any one
branch to become tyrant or dominant is made more difficult by the
distribution of power among several branches. The separation of
powers enables the development of a system of checks and balances
that satisfies two requirements: (i) there is an interest conflict
between the executive and the legislature; and (ii) legislative
decisions must be unanimously approved by both bodies.13

Now analyzing if the doctrine of separation of powers comparatively

weak or strong principle in the English constitution.

The doctrine of separation of powers is included in the unwritten

constitution of the United Kingdom, which raises the question of
whether it is a strong or weak principle.

According to A. V. Dicey’s theory of the rule of law, the constitution

must uphold the notion of the separation of power. It refers to the
split of a state’s government into “branches”, each with distinct,
autonomous authorities and duties, to prevent power conflict
between the various branches. The English system has developed into
what is frequently described to as a "overlap of functions" or "fusion
of powers" structure.14

According to lord Diplock ‘It cannot be too strongly emphasised that

the British Constitution, though largely unwritten, is firmly based on
the separation of powers.’15 And also stated by Lord Mustill that the
fact that Parliament, the executive branch, and the judiciary each
have their own unique and mostly exclusive jurisdiction is a
characteristic of the particularly British view of the separation of
powers.16
13
The Quarterly Journal of Economics, Vol. 112, No. 4 (Nov. 1997), pp. 1163-1202
14
<Separation of powers - Wikipedia> accessed on 05 June 2023
15
Duport Steels v Sirs [1980] 1 WLR 142, per Lord Diplock at 157
16
R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, per Lord Mustill at
567

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 One of the reasons for the comparatively weak application of the
doctrine of separation of powers in England is the historical
development of its constitution as it mainly relies on unwritten
constitution. there is some overlap between the judiciary and the
other branches. The Supreme Court remains the highest court in the
land despite the Lord Chancellor's position in the House of Lords
being abolished by the Constitutional Reform Act of 2005, and there
is still considerable interaction between the judiciary and the other
branches.17

The judiciary is comparatively underpowered in comparison to a

majority-controlled government and a sovereign Parliament. The
fundamental tenet of our constitution is the authority of the
legislature. And the judiciary unconditionally upholds the legislative
intent as represented in statutes.18

Due to historical developments, the merger of powers between the

executive and legislative branches, and the theory of parliamentary
sovereignty, the doctrine of the separation of powers is generally
regarded as a rather weak principle in the English constitution.

Now we’ll analyze, how judiciary has been greatly strengthened.

Some of the main factors that had strengthen judiciary are increased
judicial independence, Interpreting and applying the law is the
judiciary's main duty. The court is in charge of making sure that the
government abides by the law, that everyone is treated fairly, and
that they are all protected by it, regardless of their gender, religion, or
skin colour. Additionally, the judiciary defends individual rights and
settles disputes in conformity with the law. It was a significant
milestone when the Supreme Court was established in 2009. For
more judicial independence, it separated the supreme court from the
legislative branch. In order to provide a more distinct division
between the judiciary and the legislature, the Supreme Court judges

17
Constitutional Reform Act of 2005
18
per Lord Steyn, ‘The weakest and least dangerous department of government’ [1997] Public Law 84 at p 8

Page | 7
 are chosen through an open procedure and are not members of the
House of Lords.19

The Human Rights Act of 1998 increased the role of the judiciary in
upholding human rights by incorporating the European Convention
on Human Rights (ECHR) into domestic law. Cases could now be
brought directly before domestic courts, giving judges more freedom
to interpret and enforce human rights laws. This increased judicial
power allows it to review and perhaps overturn laws that violate
human rights.20

The common law system in the United Kingdom is based on the idea
of binding judicial precedent, which states that rulings by higher
courts are binding precedent for lower courts. As a result, the law is
applied consistently and predictably, supporting the judiciary's
function in interpreting, and applying legal principles. the court is
given the authority to examine the legality and constitutionality of
governmental activities through judicial review, which is a vital
component of the legal system. The judiciary has the power to rule
that a law or governmental action is ultra vires (beyond the scope of
legal authority) or in conflict with the constitution or human rights.
This authority ensures adherence to the law and fundamental
constitutional values by serving as a check on the executive and
legislative branches.21

the judiciary's position in upholding the separation of powers has

been greatly strengthened as a result of these developments. A
stronger system of checks and balances is made possible by the
judiciary's increased independence, increased review authority, and
structural separation from the legislative branch.

In conclusion, Strong separation of power in the English constitution

is difficult to achieve, especially between the legislative and executive
departments. An imbalance in authority and the possibility of misuse

19
< Judicial Independence - How Independent are UK Judges? (politics.co.uk)> accessed on 05 june 2023
20
The Separation of Powers in the Contemporary Constitution Judicial Competence and Independence in the
United Kingdom, pp. 33 - 59
21
The Review of Politics, Volume 37, Issue 3, July 1975, pp. 357 - 376

Page | 8
 are influenced by parliamentary supremacy and the merger of
powers. Nevertheless, initiatives have been made to reinforce the
division of powers within the court, including through the inclusion of
human rights legislation and measures that strengthen judicial
independence. The complex balancing and interplay of powers, as
well as the judiciary's function in defending individual rights, all
contribute to the functioning of the UK's political system as a whole.

Bibliography

Primary Sources: -
Table of cases:
Attorney-General v De Keyser’s Hotel [1920] AC 508 at p. 540
Attorney General v. R (Jackson) [2005] UKHL 56

Page | 9
 Duport Steels v Sirs [1980] 1 WLR 142, per Lord Diplock at 157
R (Miller) v Secretary of State for Exiting the [2017] UKSC 5
European Union
R (Evans) v Attorney General [2015] UKSC 21

R v Secretary of State for the Home Department, ex R v Secretary of State for the Home Department, ex
p Fire Brigades p Fire Brigades Union [1995] 2 AC 513, per Lord
Mustill at 567

Lord Browne-Wilkinson, Fire Brigades Union [1995] 2 AC 513 at p. 552

Table of statutes:
Constitutional Reform Act of 2005

Secondary Sources: -
Table of books:
Oxford Journal of Legal Studies. Autumn2005, Vol. 25 Issue 3, p419-451.
The Separation of Powers in the Contemporary Constitution Judicial Competence and Independence in the
United Kingdom, pp. 33 - 59
The Quarterly Journal of Economics, Vol. 112, No. 4 (Nov. 1997), pp. 1163-1202
The Review of Politics, Volume 37, Issue 3, July 1975, pp. 357 - 376

Table of journal articles:

Montesquieu, De L'Esprit des Lois (Spirit of the Laws), 1748
per Lord Steyn, ‘The weakest and least dangerous department of government’ [1997] Public Law
84 at p 8

Parliamentary Sovereignty after the Human Rights Act’ (2005) Public Law 275

Table of Websites:
<Judicial Independence - How Independent are UK Judges? (politics.co.uk)> accessed on 05 june
2023
<Prerogative Powers: What are they, and where do they come from? – Constitutional Law Matters>
accessed on 03 june
<Parliament's authority - UK Parliament> accessed on 03 june
<Separation of powers - Wikipedia> accessed on 05 june 2023
<separation of powers | Wex | US Law | LII / Legal Information Institute (cornell.edu)> accessed on

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05 june 2023
<statutory power Definition | Law Insider> accessed on 05 june

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