The controversy over phone hacking at the News of the World has developed at an astonishing rate. Amidst the flurry of almost daily revelations and resignations, it is unsurprising that some of the more arcane constitutional aspects of the controversy have not received widespread attention.
One of these matters is the curious character of the House of Commons motion that it was “in the public interest for Rupert Murdoch and News Corporation to withdraw their bid for BSkyB”. The motion was widely accepted as having no legal status. Indeed, it would likely have been unlawful for any of the bodies involved in scrutinising the BSkyB bid to take the motion into account. It was for this reason that Culture Secretary Jeremy Hunt – a man charged with what has been described as a “quasi-judicial role” in the final determination of the bid – to abstain from the motion in order to preserve his independence.
So what was the point of the motion? Was it empty political posturing? Or was it a more questionable attempt by the legislative branch to put pressure on Hunt or on the Competition Commission, thereby undermining the separation of powers that exists between it and the executive and judicial branches of government?
On this latter issue, the first point to note is that the United Kingdom’s constitutional system has not traditionally been understood in classical separation of powers terms. More recently, however, experts like Roger Masterman of the University of Durham have argued that the British constitution does have a system of constitutional checks and balances that approximate to a more traditional separation of powers system. From that point of view, the Commons motion could be seen as an attempt to circumvent these checks and balances.
However, there is a reasonable argument to be made that the Commons motion represented an expression by the legislature of its view on a question of public concern, and that this is a legitimate step for a parliament to take in a democratic system of checks and balances.
This reflects the fact that the theory of the separation of powers is a very vague doctrine which is more commonly invoked than fully understood. While the title of theory suggests separation, the academic literature tends to emphasise the mutual interaction of different branches of government. The separation of powers is often invoked by politicians who claim that another institution – usually the courts – have unacceptably interfered in matters beyond their remit. To politicians in that scenario, separation of powers means separation. However, it is precisely because the actions of the different branches can legitimately overlap that none of them should (in theory) be able to become tyrannous.
This is also supported by the fact that the traditional model of the separation of powers – a clear tripartite structure of separate legislative, judicial and executive branches – is too simplistic to help determine how institutions should act in the modern state. The powers of government are too varied, and exercised by too many different agencies and individuals to fit neatly within this model. This was starkly demonstrated by Jeremy Hunt’s position in the BSkyB process. Hunt was simultaneously a member of the House of Commons (legislature) and government (executive) but was nonetheless also required to exercise a “quasi-legal role”.
Modern democratic theories have responded to the blurred boundaries of modern government by emphasising the value of dialogue or deliberation between different bodies. This type of institutional interaction means decisions benefit from the influence of different types of viewpoint or expertise. It also means that no one body can claim a monopoly of democratic legitimacy over an issue. That is not to say that one institution should usurp the rightful powers of another. But neither should any one institution be entitled to demand that its conduct should go without scrutiny or comment. This interactive approach supports the separation of powers’ historical objective of preventing any one individual or institution from becoming too powerful. As Bryan Garsten of Yale University has observed, “representative government is working well when no claim to represent the people goes uncontested”.
That News Corp responded to the motion by ultimately withdrawing the bid – something that might not have been required from a purely legal perspective – demonstrates the potential value of allowing the separate branches or bodies of government to express differing views or undertake overlapping actions on issues of democratic concern. Allowing different voices to have their say is, after all, at the heart of a healthy democratic system.