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Published: Fri, 02 Feb 2018
The separation of powers is doctrine
The separation of powers is a doctrine and not a legal rule. Under this doctrine the following three branches of government; legislature, executive and judiciary should have a clear separation to prevent abuse of power. The separation of powers is an internal process of institutionally controlling state power and also separation of powers is an important aspect of constitutionalism.
The separation of powers doctrine is associated with Montesquieu. Montesquieu indicated separation of powers in the well known book, The Spirit of the Laws, stating “when legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty , because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal man, wither or noble, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and of judging the crimes or the disputes of individuals”.
Montesquieu is trying to say, to avoid tyranny there should be a separation between the people and the functions, he thought it is important to create separate government states with equal but different powers. In such way the government can stay clear from placing too much power on one individual or a group of individuals. Also he indicated no branch of government could threaten the freedom of the citizens, if each branch could limit the power of the other two branches.
The US constitutional is a prime example of separation of powers. The parliament system in the UK has no absolute doctrine in the UK. In the United Kingdom the three states are not fully separate or isolated. They interrelate with each other. Even the people involved are mostly but not completely separated.
As mentioned above the following are the different powers of state in detail;
The legislative function is the law-making body. In the UK the Queen has to approve for a law to become an Act of parliament. This is done by the Bills being passed through House of Commons and House of Lords and then to the Queen. In the United Kingdom parliament has no restrictions in creating legislation. No matter what the situation is the parliament can legislate, they can amend and repeal if needed to do so, even if the legislation had any rules and principles. With saying this, it means the judges in judiciary branch cannot hold an Act of Parliament to be unacceptable or unconstitutional. If legislation is found to be incompatible with the Human Rights Act 1998, it is down to parliament to decide what should occur next not the judges. Whilst parliament is in control they should not exceed their power to legislate in a way which would be inconsistent. Parliament is also in charge for controlling, removing and regulating its members.
As mentioned the parliament is the main head of the British constitution. Through the use of sud judice resolution the parliament uncovers the main constitutional roles of the courts and the legislature. Parliament avoids criticising the individual judges through constitutional convention. This makes sure that parliament does not interrupt the court unless they will need to remove a judge. With constitutional convention the courts can also reject to find out the internal events of Parliament. Legislature and the judiciary do have some kind of separation as parliament does not appoint judges, as they can only remove. Section 1 of the House of Commons Disqualification Act 1975 disallows any full time judge from sitting in the House of Commons; this yet again is a separation between the two branches. The law lords were removed from parliament when the Constitutional Reform Act 2005 announced, to set up a new and separate supreme court for the law lords. The Supreme Court is legally separate from the parliament.
The Executive function is the governmental function; this formulates and implements the law. The following bodies are included as the executive in the UK; the head of the executive, local authorities, her majesty’s government including the prime minister, cabinet, junior governments whom are staffed by civil servants and also the police and armed forces. While the legislature make statutes, at the same time the executive introduce new laws into parliament. Once these are passed, legislation is put into effect. The executive have the power under the parliaments required authority (parent Act) to enact legislation. The executive must pass legislation which is intra vires; this is within the legal powers. The courts can reject the legislation if it goes beyond the purpose; this is known as ultra vires. The courts make sure they use their powers strictly for the right purposes so it is not abused.
The checks on actions of executive are checked by the legislative and judiciary branches. The judiciary makes sure the executive do not exceed their power, this is done by judicial review.
The members of the executive whom are not elected such as the police, armed forces, civil servants are not allowed to sit in the House of Commons. Section 1 of the House of Commons Disqualification Act 1975 prohibits this.
The Judiciary function is a body which rules and settles legal disputes. This is by interpreting and applying law to a specific case beforehand. In the UK this is completed by the Judges. The judges have a very important position in developing common law, as we know parliament is supreme they can always legislate to alter or overrule common law.
One important way in where the judges must interpret and apply the law is in ensuring that the executive does not exceed its powers, this is applied through judicial review for any decision or action taken place from executive.
The judiciary must remain head of the executive. The Constitutional Reform Act 2005 disallows the executive from having any specific access to the judiciary. The executive have no rights to remove a judge, only parliament can. As mentioned above the judicial review is applied so the executive do not exceed there powers. The judiciary look into account for the following; when the executive passes law, make a law decision and exercise a public law judgement. Now we can see the judiciary are involved in another state. On the other hand the judiciary state could be viewed as separation of powers by the courts doing the checks and balance. This stays away from any abuse of executive power.
The Queen is involved in all three states, she appoints government ministers in the executive branch, appoints judges in the judiciary branch and also she must be part of parliament as she has to give a Royal Assent to a bill to create a law. She is only a figure head.
The Lord Chancellor is involved in the following; he is a part of the parliamentary executive and he historically was speaker of the House of Lords in the legislative branch, and in the executive branch he was a senior cabinet minister and head of a government. Also historically he used to sit as a judge in judiciary branch.
Under the Constitutional Reform Act 2005 Lord Chancellor was no longer the head of the judiciary or be able to sit as judge in the judiciary branch. This Act states that it is “An Act to make provision for modifying the office of Lord Chancellor and to make provision relating to the functions of that office’.
In the book, Studies in constitutional Law, Munro stated “In a variety of important ways, ideas of the separation of powers have shaped constitutional arrangements and influenced our constitutional thinking, and continue to do so. The separation in the British constitution, although not absolute, ought not to be lightly dismissed”. He stated this concerning the British constitution before the Constitutional Reform Act 2005.
Overall as we can see the three branches are not officially separated as they carry out an overlap between them. The United Kingdom is slightly concerned with the separation of powers. As mentioned above, the Lord Chancellor and law lords will not have the same position as before through the constitutional Reform Act 2005 because. This is because it is trying to ensure the independence of judiciary. In the United Kingdom it is most likely that there will be no full separation of powers. If there was a separation of powers that would mean the executive would be apart from the legislature and that for example would require a new way of electing prime minister and etc. In the mean time I would assume the United Kingdom is not prepared for this.
Montesquieu, C (2007). The Spirit of Laws. 14th ed. Bradley, A and Ewing, K : Pearson/ Longman, p84-85
Munro, C (1999). Studies in Constitutional Law. 2nd ed. Butterworths, p332
Parpworth, N (2008). Constitutional & Administrative Law. 5th ed. Oxford: Parpworth, N. p18-33.
Ryan, M (2007). Unlocking Constitutional & Administrative Law 1se ed. London: Ryan, M. P 78 -118
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