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Published: Fri, 02 Feb 2018
The idea of separation of powers
The idea of Separation of Powers suggests that governance of the State should not fall solely under one organ of the State which could be identified as the Executive, Legislature and Judiciary. Aristotle in his Politics submitted this theory but the most famous version was being suggested by Montesquieu in ‘De L’Espirit des Lois’. His arguments indicate that there were three functions of government, Legislative as the law-making body, Executive as the law-applying body and Judiciary as the Law-Enforcing body. Early findings indicates that Montesquieu theory was unreachable since it is almost impossible for United Kingdom(UK) to have full Separation Powers of the three organs.
The Constitution Of United Kingdom
The UK constitution is largely unwritten which means that there is no one piece of material stating the constitution of the country. The constitution in seen to has grown over the years in history rather than having a piece of legislation stating the constitution like most of the countries. The constitution could be found in fundamental documents, statutes, case laws as the legal resources and some non legal-resources as the constitutional convention. They can be drawn from the Magna Carta (1215), The Petition of Rights (1628), Bill of Right (1689), Act of Settlement (1700), Treaty of Union (1706) and several other statues. The constitutional conventions are non-legal rules guiding the three organs of the state. The Separation of Powers is vital in the constitution as suggested by A.V. Dicey’s rule of law.
The three organs could be identified as the Legislature, Executive and Judiciary. All three organs should have different powers and do not interfere the powers of another. As being mentioned before, this theory seemed impossible given the constitutional convention in UK.
The executive, comprising the Prime Minister and his Cabinet Minister and the Crown, formulate and implement government policies across all governmental activities. Parliament, being the Sovereign law making body (legislature) comprises the Crown, the elected House of Commons and the currently unelected House of Lords. The House of Commons which is considered superior to the House of Lords is made up of elected Members of Parliament who represent their own constituencies. The Judiciary, however, sits all the judges in the Courts of Law including those who hold judicial office in tribunals and the lay magistrates.
The Lord Chancellor
Prior to the Constitutional Reforms Act 2005, Lord Chancellor was politically appointed member of the cabinet, speaker of the House of Lords and the head of Judiciary. As a senior judge, the Lord Chancellor was entitled to participate in judicial proceedings, although by convention he would not adjudicate cases which involved the government or were openly political in nature. He also has the rights to appoint judges. This obviously does not preserve the theory of Separation of Powers as he can be found to be in all three organs of the state.
As a rectification step, the Labour Party as the government of the day enacted the Constitutional Reform Act 2005, which removed Lord Chancellor from his office. His office will now be filled by a member in either House and need not be a lawyer. His position as the head of judiciary is now replaced by lord chief justice. House of Lords in future will elect its speaker from one of its members.
Previously, given the rights to participate in all three functions, the Lord Chancellor did actually have the ability of abusing his power. As he is the Speaker for the House of Lords, a member in the Cabinet and the head of Judiciary, he could have provided himself or his favoured function, the Legislative, Executive or Judiciary with more benefits. With the Constitutional Reform Act 2005, removing him from his office has lessened the possibility of abusing such power due to the sufficient Separation of Powers.
Legislature And Executive
The two organs of both legislature and executive could be seen as a fusion of power. Executive creates law through the power vested on them known as the delegated legislation by the Parliament provided there is effective scrutiny of delegated legislation. The fusion between Executive and Legislative power lies in the cabinet, whereby being discussed above, the executive, which often consists of a prime minister and cabinet (“government”), is drawn from the legislature (parliament)
House of Commons Disqualification Act 1975 preserves separation between executive and legislature. S2 of the Act states that holders of judicial office, civil servants, members of armed force, police and members of foreign legislature are disqualified from holding parliamentary office. It also limits the number of Government Minister in the House of Commons to 95. On the other hand, considering the 95 members with the Parliamentary Private Secretaries, the government enjoys the support of some 120 members although limited under the1975 Act.
Contrasting with the United States of America and France, the Executive and Legislature are separate. Both the estates are often under control of different political parties. A total failure of cooperation would result in a deadlock, though Senator Dole achieved this briefly in 1995 and was subjected to public censor for so doing. Nonetheless, cooperation can be poor, adversely affecting the effectiveness of the Executive. Unlike our said “fusion of powers”, close relationship between Executive and Parliament represented the efficient secret of English Constitution.
However, the relationship between Legislature and Executive is seen to have massive dominating power which creates space for the both estates to abuse their powers. Given the fact where members of the Legislature and Executive are almost similar, the pair could apparently pass any law which benefits them. But this is unlikely to happen as the government is threatened by the possibility of vote of no confidence in the future and due to the convention of ministerial accountability towards the parliament.
Executive And Judiciary
The Courts are the Queens Court and the Queen in the head of Executive. However, Queen is no longer able to act as a judge in her own court under Prohibitions Del Roy 1607 and cannot create laws outside parliament under Bill of Right 1688. The Privy Council now exercises the executive and judiciary role.
Royal prerogative being the residue value of the crown is usually being exercised by the Executive. In Council of Civil Service Unions v Minister of State for Civil Service, House of Lords held that courts have jurisdiction to review exercise of the executive power irrespective of whether source of power is statutory or under prerogative. By convention, though, it is unlikely for Judiciary to question matters being referred to as national security and “high policy”. This suggests that Judiciary actually has the right to question the exercise of royal prerogative by the Executive.
Judiciary exists at least on one level to protect the citizen from the unlawful acts of the executive through judicial review and thus controlling the executive. Judicial review is concerned with process by which decisions are made, where judges are upholding the will of parliament in controlling the exercise of powers delegated by it to subordinate bodies. The scope of Judicial review has increased since the coming into force of the Human Rights Act 1998. Under Article 6 of the Act, it is unlawful for any public body excluding parliament but including the courts to act in a way which is incompatible with the convention rights under the Act.
A slight mistake in judiciary interpretation compared to the executive interpretation of the powers could lead to a significant criticism of violating Separation of Powers. Hence, relationship between the Executive and Judiciary is protected by mutual respect that one organ has for other in respect to power in exercise.
Hypothetically, with a strict separation of powers, both Judiciary and Executive would work without compromises. For instance, without compromising, courts performs judicial review on a national policy case, information will leak out to the citizens and even other countries. This would create chaos in the country with citizens felt threatened by the publicity of the case. With national policy being revealed to other countries, United Kingdom’s rank and status in the international arena might be jeopardized.
The Executive in this pair could be seen to be dominating the Judiciary. With the close relationship between Legislature and Executive, they can almost enact any law to limit the powers of the Judiciary. Therefore, the Executive indirectly dominates the Judiciary. Due to the compromises and constitutional convention, this is very unlikely to happen.
Legislature And Judiciary
Parliament is sovereign and judiciary is subordinate. The head of Judiciary is the Crown who represents the “fountain of justice”. The rules against criticism of Judiciary reinforce the independence of judges where convention dictates that there should be no criticism from the executive to judiciary. Criticism can only be brought up under a motion addressing specific criticism or addressed to the crown for the removal of a judge.
The subjudice rule, in turn, suggests that where proceedings are in court or awaiting trial and MPs are barred from raising it as debate and no reference on criminal proceedings can be made from time of the charge until final appeal is determined.
The doctrine of legislative supremacy ensures that the courts are bound by the Act of Parliament to the effect of being required to do certain acts. European Communities Act 1972 provides an outstanding example of control which the legislature may exercise over the judiciary and vice versa. Under Section 3, courts are required to follow case laws of the European Court of Justice in dealing with matters of community law and to take full account of reception of community law into the United Kingdom.
Part 3 of the Constitutional Act, however, ended this by creating the Supreme Court for the UK separate from the House of Lords. Section 3 of the Act imposes a duly upon the Lord Chancellor and other government ministers to uphold judicial independence. This would therefore lessen the interference of Judiciary powers by the Executive.
If departing from the convention and moving towards a strict separation of powers, the Judiciary may question the validity of an Act of Parliament. However, A.V.Dicey submitted that no one can question the validity of the law under the Parliamentary Supremacy. Therefore, if the Judiciary is allowed to question the validity of an Act of Parliament, the Judiciary is seen to be breaching the doctrine of Parliamentary Supremacy.
Compared to the other two pairs, the Judiciary and Legislature relationship is seen to have a clearer Separation of Powers. Therefore, there are lower chances for them to abuse the use of powers.
The British Constitution has developed gradually from the past. Without being invaded and colonized by other countries, the United Kingdom has never needed a written constitution and might not need one in the future. Constitutional Conventions are well abided by all organs of the state. Apart from a series of incidents including one where Margaret Tatcher departed from the convention, the convention seemed to be working very well. In my own opinion, the fusion of powers is the uniqueness of the constitution of United Kingdom and there is no need to adopt a US like constitution with Strict Separation of Powers.
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