Separation Of Powers In The UK

“There is no reason to have problems between country and country, between government and government, when there is a separation of powers," – Ricardo Lagos

Introduction:

In order for a democratic government to function properly, it is essential to have separation of powers. This means that the power is distributed to separate branches within the government. Generally these branches are: executive, legislative and judicial. Separation of powers is commonly found (at least to some extent) in all the modern democracies and is probably one of the most basic concepts underlying the majority of modern democracies. This concept limits the corruption within the government by using the system of checks and balance. However, it would be a mistake to say that each government uses the doctrine of separation of powers to the same extent. Every jurisdiction has its own needs and necessities; therefore the extent to which this concept is used varies from one government to the other. We can see this by comparing two completely different states: the UK and Uzbekistan.

Origins of the doctrine:

The doctrine of separation of powers was first mentioned by Aristotle in Politics. Where he stated that every constitution has three elements [1] :

Deliberative: discussed everything of common importance.

Official

Judicial

Later in 1690, John Locke wrote that if the power to make and execute laws was given to the same person/institution, then the temptation to use it to their own advantage and exempt themselves would be too great. Therefore, he argued that there should be a separate legislature and a separate executive with a continuing existence. [2] 

The French philosopher, Montesquieu further developed the concept in his book “The Spirit of Law". He said “There is no liberty, if the power of judging is not separated from the legislative and executive. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor." Montesquieu stated the importance of separating the judiciary from the legislative and executive. He did not mean that executive and legislature should not influence or direct the actions of each other, but only that neither should employ the whole power of the other. [3] Sir William Blackstone, who was Montesquieu’s disciple, elaborated the doctrine in his own way by adding that the separation between executive and legislature should be partial, thus leading to a mixed and balanced constitutional structure. [4] 

Separation of Powers in the UK:

The UK is one of the most peculiar states in the world. It is one of those few states which do not have a written constitution. Due to the absence of a formal written constitution, it is possible to claim that there is no formal separation of powers in the UK. However, one should not presume that it does not exist. They do exist, but in a weak form because they overlap and work together.

The Three Branches of Power:

The Executive Power:

The executive consists of the Crown and the government, including the Prime Minister and Cabinet of Ministers. Moreover, the Civil Service is also a part of the executive. The executive mainly formulates and executes the government policies. The government is accountable to Parliament which has the ultimate power to dismiss a government and force a general election in which the new government will be elected. The government is mainly elected from the Members of Parliament who sit in either House of Common or House of Lords.

The Legislative Power:

The legislative power in the UK is held by the Parliament. The Parliament of UK is composed of three parts, namely; the Monarch, House of Lords and House of Commons. However, the monarch has only nominal powers and mainly has to listen to the advice of the Prime Minister who in return follows the MPs. The House of Commons is made up of elected members of Parliament, whereas the House of Lords is made up of unelected hereditary peers and life peers appointed by the Crown and Archbishops and Bishops of the Church of England. [5] However, it should be pointed out that the House of Commons is superior to House of Lords in its law making power. The main functions of the Parliament are to: create/amend law, scrutinise the government, and to enable the government to make financial decisions. [6] 

The Judicial Power:

The main function of this branch is to hear upon and resolve the matters of law. However, in the UK the judiciary has one more essential function: to develop the law through their judgements. The judiciary consists of judges in courts, as well as those who hold judicial office in tribunals. The senior judicial appointments are made by the Crown. According to various sources, the judiciary in the UK is independent of both parliament and the executive. It may be argued that this “independence" is not really genuine, because the Senior Judges are appointed by the Crown. However, once these judges are appointed they are become completely independent and have complete authority over all their actions. Their independence in protected in the “Act of Settlement - 1700", according to which, Senior Judges can only be dismissed by address to the Crown from both Houses of the Parliament.

The Lord Chancellor:

One of the most peculiar features of the UK was probably the Lord Chancellor. This is mainly due to the fact that the Lord Chancellor was a part of all three branches of the government (i.e. executive, legislative, and judicial). The Lord Chancellor is often regarded as a disregard to the doctrine of separation of powers. Prior to the “Constitutional Reform Act 2005" the Lord Chancellor acted as the head of the Judiciary, was a member of the Cabinet and presided over the House of Lords as its Speaker. However, after the “Constitutional Reform Act 2005" was passed, the Lord Chancellor was removed from his position in the Judiciary. Moreover, he no longer acts as the speaker of the House of Lords. In future, the Lord Chancellor can be a part of either of the Houses. The “Constitutional Reform Act 2005" led the British government towards having a clearer division among the powers.

The British System:

As William Blackstone stated, the UK has a unique system because it does not represent any standard structure, in fact it is a mixture. This can be proved by looking closely at the interrelation between the three powers.

According to Mike Thadkobylarz (2010), the legislature is dominated by the executive because the Government is formed by the leader of whichever party wins the most seats in the House of Commons. Consequently, the legislature might receive a considerable amount of pressure from the executive. Therefore, even though it is the Parliament’s job to legislate, in reality the Government mainly controls it.

Moreover, it is possible to argue that the executive also dominates the judiciary. Since the appointment of the Senior Judges is in the hands of the Lord Chancellor, it can be said that there is a slight element of domination. However, once the judges are appointed, it is not up to the Lord Chancellor to dismiss them. So, it is possible to say that there is certain independence after the appointment.

The judiciary and Parliament mainly share the powers, rather than separate them. This is due to the fact that in Common law system judges have a legislative rule. Despite this overlap, the judges have deferred to the authority of the Parliament since the 17th century. However, during the past two decades, there has been a shift in the balance of powers due to UK’s “increased obligations to Europe". [7] 

Despite the fact that, Montesquieu based his explanation of the doctrine on the British system, it is obvious that the British system has a weak division of powers.

Separation of Powers in the Uzbekistan:

The republic of Uzbekistan is a sovereign and democratic state with two nations in it. It has a written constitution and hence the separation of powers is clearly demonstrated. Article 11 of the Uzbek Constitution states: “The principle of the separation of power between the legislative, executive, and judicial authorities shall underline the system of State authority in the Republic of Uzbekistan". Like most other modern democracies Uzbekistan also has three powers.

The Three Branches of Power [8] :

The Executive Power:

Uzbekistan is a presidential executive country. This means that the President is elected by the people and he together with the Cabinet of Ministers, the Minister Kenesi of Karakalpakstan and “khokimiyats" of the regions, exercises the executive power. The executive branch ensures the implementation of laws and other normative acts passed by the Parliament.

The Legislative Power:

The legislative power is controlled by the “Oliy Majlis" (Parliament). The Oliy Majlis consists of two chambers, the Legislative Chamber (lower house) and Senate (upper house).

The Judiciary:

The judiciary system in Uzbekistan consists of:

Constitutional Court of the Republic of Uzbekistan,

Supreme Court of the Republic of Uzbekistan,

Higher Economic Court of Uzbekistan,

Supreme Courts of the Republic of Karakalpakstan

Commercial Court of the Republic of Karakalpakstan

The Supreme Court is the highest judicial authority. The decisions made by the Supreme Court are final and binding on the entire territory of the Republic of Uzbekistan. The judges for these courts are appointed by the Oliy Majlis, who selects them through presidential recommendations.

The Uzbek System:

Even though there is a strict division of power in the constitution, in practice it is quite the opposite. According to Bertelsmann Stiftung (2010) “the constitution provides for separation of powers between a strong presidency and a supreme assembly (Oliy Majlis) with the power to approve the budget. In practice, there are no institutionalized checks and balances, and no identifiable separation of powers. The president and his administration dominate the executive, legislative and judicial branches of government. Moreover, even though the constitution provides for an independent judiciary, judges do not act independently of the executive branch. An informal political hierarchy of legal and law enforcement institutions secure the judiciary’s dependence on executive power". [9] 

However, it should be kept in mind that Uzbekistan is a country in transition and therefore still has some features of the USSR left in its system. That is why, in practice, a higher concentration of powers rests in the executive’s hands. Nevertheless, it can be seen that the Uzbek government is trying to move away from the Soviet legacy and Article 11 of the Uzbek constitution proves it. For a country moving from communism towards liberalism, Uzbekistan has undergone a smooth transition. Moreover, the state is doing its level best to incorporate democratic principles in the governmental system.

Conclusion:

I believe the doctrine of separation of powers is probably one of the most basic concepts which build a modern democracy. The separation of powers is immensely important because it prevents the powers from being abused and thus leading to a dictatorial form of government.

I think that Montesquieu’s version of the doctrine of separation of powers is impossible to achieve, because there is no country where there is a complete division among the powers. And even if it was achieved somehow it would result in isolation of the powers leading to a constitutional deadlock. Therefore, I feel that the best system would be the one where there was an overlap and balance between the three powers and where they worked together in order to achieve a fully functional democratic system.