A fundamental constitutional principle

This Question Makes The Assumption That There Are Some Guards Against Excessive Concentration Of Power, But The Existence Of Such Guards Has Been Questioned By Many. Before Considering Whether Any Such Guards Should Be Maintained, It Should First Be Asked Whether Excessive Power Does Indeed Exist.

A fundamental constitutional principle is the separation of powers with it playing a role in ensuring that one body is not concentrated with the personnel, functions and powers within its state. Unlike most countries, the British constitution is unwritten and uncodified with no distinct separation of powers. The US constitution adopts a formal separation of powers in which no office holder could legally be allowed to wield power belonging to another branch of the state. Although we do operate some separation of power, we more commonly use Blackstone's argument of a checks and balances system to restrain abuse of government power in order to protect the rights of citizens.

Originally the concept of separation of powers was from ancient Greece where Aristotle believed in the idea of an accountable government. However, Montesquieu's philosophy soon became influential. He believed that true separation of powers required the three organs of government; the executive, judiciary and legislature should each have a discrete and defined area of power and that there should be a clear segregation of functions between them, otherwise there will be ‘tyranny'.

The executive consists of the government, prime minister, cabinet minsters and the Crown. Their role is to formulate and implement government policy. The elected government is accountable to Parliament who has the power to dismiss a government and initiate a general election which the citizens will vote. The government are mainly elected Members of Parliament who sit in the House of Commons although some may sit in the House of Lords. The House of Commons (Disqualification) Act 1975 prohibits certain groups of people from becoming members of the House of Commons to prevent the executive overpowering Parliament.

Parliament includes the elected House of Commons, the Crown and unelected House of Lords. The House of Commons is made up of elected Members of Parliament. The Parliament Act 1911 states that a general election has to be held at least every five years. The Constitutional Reform Act 2005 does not allow Law Lords who have been members of the House of Lords to sit in the Lords.

The judidicary compromises all the judges in the courts of law, lay magistrates and those who hold judicial office in tribunals. The judges role is to interpret legislation by considering Parliament's intention and to expand the common law. They do not have authority to challenge the validity of Acts of Parliament. The House of Commons Disqualification Act 1975 prohibits judges from standing for election to Parliament.

Before the Constitutional Reform Act 2005, the Lord Chancellor was head of the judiciary and had the power to appoint judges whilst also being a member of the Cabinet and playing a central role in government. The Lord Chancellor also had a legislative role in acting as a Speaker for the House of Lords. These numerous responsibilities of executive, judicial and parliamentary functions led to the criticism of the Lord Chancellor violating the doctrine of separation of powers.

The court held that the independence of the judiciary was violated in the Scottish case of Starrs v Procurator Fiscal which led to an impairment of the right to fair trial under Article 6(1) European Convention. The case questioned the direct influence which the executive may have over a person who has been appointed for a temporary period and also that the shortness of tenure can result in the exertion of more subtle indirect influences over the exercise of judicial power.

McGonnell v United Kingdom reaffirmed the requirements for independence and impartiality. The European Court of Human Rights held that there was a breach in a right to a fair trial by the involvement of the Deputy Bailoff of Guernsey who was both a senior judge in the Guernesey Royal Court and a senior member of Guernesey's legislative body.

These cases influenced the reformation of the Lord Chancellor office. The Secretary of State headed a new Department for Constitutional Affairs and will assume many of the Lord Chancellor's duties. The Constitutional Reform Act 2005 removed the Lord Chancellor head judicial role by replacing it with Lord Chief Justice. The new Supreme Court will replace the Judidical Committee of the House Lords which will be separate from Parliament. The role as Speaker of the House of Lords it is now selected amongst its members. The Lord Chancellor will no longer have to be a senior lawyer and can be a member of either House of Parliament.

In 2007 a Ministry of Justice was established after reorganistaion of the Home Office. The Ministry takes over the responsibility of the Deparment of Constitutional Affair and also overlooks the National Offender Management Service, sentencing and prisons.

To understand clearly the separation of powers under the British constitution, it is necessary to look at the relationships between the three major institutions and to examine any overlaps in personnel and functions. Where overlap exists, it is important to consider what factors there are which make the situation acceptable.

Executive And Legislature:

The executive is at the heart of Parliament. In the US, the President may not be a member of the Congress, the legislature body and are elected separately from congressional elections. However in the UK, the Prime Minister is always the leader of the political party that won the general election.

The government proposes legislation which Parliament may pass to give legal effect. The Prime Minister and many of his ministers are Members of Parliament and sit in the House of Commons. The issue is whether the government can dominate Parliament and ensure that its proposed legislation is enacted or if there are sufficient guidelines in place to ensure that proposals are sufficiently scrutinised and either endorsed or rejected by Parliament.

The government may be given law making powers by the Parliament to draft subordinate or delegated legislation. However the ultimate approval comes from the Parliament. This delegated legislation questions the separation of powers between the executive and legislature.

Fire brigade the court helf it was unlawful for the Home Secretary to introduce changed to a scheme which were incompatible with an Act of Parliament.

Executive And Judiciary

The Act of Settlement 1700 gives judges in the higher courts security of tenure, protecting their independence from both the executive and Parliament. Superior judged may only be dismissed by an address to the Crown from both Houses of Parlimanet. Judges also enjoy immnunity from legal action in accordance to their judicial functions in order to protect the judiciary. Public interest requires judges absolute privilege in relation to court proceeding even when statements of defamation are made.

Judges must act impartially. Re Pinochet Ugarte and Dimes v Grand Junction reiterate the point of judicial independence. Maxim that no man is to be judge in his own cause should be held scared ??

Judicial independence from government is important for the separation of powers. The judidical function is to interpret Parliament's intention as expressed in legislation and to ensure through judicial review that any delegated legislation is consistent with the scope of power granted by Parliament. The rule of law also requires that judges ensure the legality of government action; this function could not be fulfilled if the judges independence was in doubt.

M v Home Office illustrates judicial control, the House of Lords ruled that judicial review cannot be against the Crown however a minister or officer acting on behalf of the Crown is subject to judicial review.

The royal prerogative are involved in high policy issues involving financial resources, national security, signing of treaties and appointment of ministers. To project judicial independence and the appropriate separation of powers, judges will often rule that this is for the executive to decide as seen in Council of Civil Service Unions v Minister for Civil Service. Here the House of Lords ruled that executive power can be judicially reviewed even if it comes from a royal prerogative.

Legistlature And Judiciary:

The Act of Settlement 1700 gives judges in the higher courts security of tenure, protecting their independence from both the executive and Parliament. Superior judged may only be dismissed by an address to the Crown from both Houses of Parlimanet. Judges also enjoy immnunity from legal action in accordance to their judicial functions in order to protect the judiciary. Public interest requires judges absolute privilege in relation to court proceeding even when statements of defamation are made.

Judges must act impartially. R v Bow Street Stipendiary Magistrate ex parte Pinochet (No 2) and Dimes v Grand Junction Canal Proprietors reiterate the point of judicial independence. Maxim that no man is to be judge in his own cause should be held scared ??

Parliament is the supreme law making body within the UK. Constitutionally, judges have no power to question the validity of legislation (Pickin v British Railways Board). However, there is a certain amount of leeway for the judges by interpreting legislation using the statutory interpretation rules, which raises the question of whether judges make law. The Human Rights Act 1998 imposes a duty on the judges to interpret legislation ‘as far as possible' in a manner which is compatible with Convention rights. If this is not an option, the High Court can issue a ‘declaration of incompatibility' but cannot declare an Act of Parliament invalid. This preserves the supremacy of Parliament and also the separation of powers.

Magor and St Mellons RDC v Newport Corporation the House of Lords rejected the approach of Lord Denning in the Court of Appeal, who had states that where gaps were apparent in legislation, the courts should fill those gaps. Lord Simonds commented that this amounted to a ‘naked usurpation of the legislative function under the guise of interpretation'.

Burmah Oil Co Ltd v Lord Advocate the House of Lords rules that compensation was payable to oil companies who property had been destroyed during war time in order to prevent it from falling into enemy hands. The government quickly proposed and Parliament passes the War Damage Act 1965 which effectively nullified the decision.

When the judiciary resurrected the offence of conspiracy to corrupt public morals, an offence previously unknown to law in Shaw v DPP and then later in R v Knuller Ltd where the House of Lords affirmed the decision of the Shaw case, there was criticism of the jurdiciary overstepping their functions.

R v R the House of Lords ruled that a husband who had raped his wife at a time when it had been lawful for him to do so was guilty of rape. The European Court of Human Rights upheld the House of Lord's decision, despite the fact that it imposed retrospective criminal liability in violation of Article 7 of the ECHR in SW v United Kingdom. The Criminal Justrice and Public Order Act redefined rape to include a husband having sexual intercourse with his wife without her consent.

Conventions And Sep Powers:

There are many areas in which the three institutions contravene the doctrine of separation of powers. This is explained by the fact that the British constitution is largely unwritten and has evolved over time. It would be fair to conclude that not only is there no strict separation of powers between the institutions, but the separation of powers is fairly weak. However, the role of conventions is critical. In relation to the judiciary, Members of Parliament will not criticuse judicial decisions, where proceeding are before a court or imminent, Members of Parliament are barred from raising the issue in debate.

In relation to the executive:

The convention of ministerial responsibility ensures the accountavility of government to Parliament.

Conclusion:

A clearly defined distribution of personnel and functions between the three institutions will allow those who exercise powers under the constitution to be accountable to citizens.

The principle of a separation of powers stresses the importance of judiciart independent from the executives is essential to a modern democracy,