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Separation of power in public law
This assignment is based on the topic of separation of power in Public Law. It addresses the question: “The separation of powers, as usually understood, is not a concept to which the United Kingdom constitution adheres”. I will tackle the main type of power in the UK, what it was and how it has evolved. To reinforce my work, quotes and reference will be used from various sources legal writers, cases, government materials etc. My main aim will be to logically produce a clear picture of power in the UK, compare it to other countries, and explore fundamental changes and criticisms to our separation structure.
We have an unwritten one or sometimes referred to as uncodified. It is that of the United Kingdom's constitution which when compared to others such as the United States and Canada is clearly dissimilar. However what does the constitution actually means? Wheare, as quoted in Bradley and Ewing, in modern words, constitution in this wider sense “the whole system of government of a country, the collection of ruled which established and regulate or govern the government”. . In the sense of those with a written form of constitution varied definition would apply. Countries such as the United States written constitution this would be a single written document which gives rights to the individuals of that country and how their organs of power to operate. These countries would have in place a court that would be solely dedicated to resolving legal disputes which arises from issues on the constitution. In the United States and Canada this is called the Supreme Court. In retrospect the United Kingdom of Great Britain and Northern Ireland does not have a constitution. As we have a comprehensive system of government this in fact means we do have a constitution.
“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men”. All countries have a form of authority in power that oversees or rule the nation. In the UK this is no different; we are governed by the government of the country who power is given by the electorates. If one individual or body to have absolute power in any country this would be unbalance and can may lead to corruption. In order to maintain a fair and free democracy it is important to adhere to the doctrine of the separation of power. That leads me to the question what is the separation of power? The separations of power have a varied meaning in a sense. In most government there are and should be three limbs of government that performs different functions and remain separate. These limbs are the legislator, executive and judiciary all which performs key functions in order to prevent power been controlled by one individual or body. Aristotle, “there are three elements in each constitution, first the deliberative, which discusses everything of common importance; second, the officials….and third, the judicial element”. Aristotle clearly identifies a more democratic approach to power. Aristotle's three limbs of government is a reflection to that in the UK although not as developed. The UK's three organs each carries its own responsibilities and sometimes carries that of other limbs where overlaps occur. The legislator in a simple manner is the body who creates the laws to regulate the deeds of individuals and private organisations. In effect the legislator is easily identified as the UK parliament. The UK parliament is where the main house of government are, the houses of common and the house of lord. The Houses of Lord that usually held the highest domestic court in the land has now moved across the road in a new building, I will discuss this further.
These house of commons is where MP's sit and the House of Lords is where law lords sit in order to may decision of law making and as integral changes to the law. Looking at the Executive this is not as straight forward to define however, it is appropriate to symbolise the executive by its head, the Monarch. The Monarch is the head of the executive and others who complete the executive are those who carryout government duties such as civil servants, members of the armed forces, the police, the local authorities and many statutory bodies. Members of the executive are often disallowed from becoming MP's with an exception for ministers. Although this is a separate limb Parliament gives the Judiciary the right to moderate the work of the executive through judicial review. The judicial function is probable one of the most controversial limbs of the state mainly because it is seen to partially do jobs of the legislator. The judicial function is simply the courts and they carry out the job passed down by the legislator to interpret and apply the law. However, as previously touch on the judiciary sometimes makes laws of its own when there is no legislation to apply courts this is called common law, this is done by higher court which then binds its lower counterpart by way of judicial precedent. This provides an obvious overlap as the legislator or Parliament is the primary law making body.
The UK constitution today does consist of these three limbs of which Aristotle speak of. However it has not always adheres to separate branches of power and the overlaps are present still. The Monarch would open parliament by way of giving the Queens speech, an important element of Parliamentary process for its members. Although her role is now purely ceremonial her royal assent is given to every bill before it becomes law, not forgetting she is the head of the Executive. Her main duties are only carried out in her name by the Prime Minister. Before this civilised structure all three organs of the states where controlled by the Monarch at that time the king. The king governed the country with his council which all three limbs operated under. According to Entick v Carrington, Parliament could pass whatever laws it wishes affording “general warrants” which was a lawful status. We have far gone from the days when judges were appointment and held office “in the King's pleasure”.
These duties are now only exercised in the name of the crown (Monarch). Therefore the Monarch's role essentially is only of ceremonial. Even though there has been a huge change to power in the UK there were still fundamental flaws in our system. Pre 2005 the Monarch (Her Majesty Queen) and the lord chancellor would sit in all three limbs of the state. This is a clear overlap all but before the Constitutional Reform in 2005. The Lord Chancellor did the job of been speaker of house, head of the judiciary and also a senior cabinet minister. This meant that the Lord Chancellor operated in all three limbs of the state. It is important to obey the doctrine of the separation of power as well as to present a clear picture of the doctrine. To do so Parliament enacted the 2005 act which made key changes to adhere to the separation of power. The Constitutional Reform Act 2005 paves the way for key changes which changed the way power is shared within the government. This reform meant that the Lord Chancellor could no longer hold his judicial office. Therefore the job of Lord Chief Justice was born and took over from the Lord Chancellor. The reform did not stop there for the legislative role of the Lord Chancellor's position was turned over to the Lord Speaker. The way judges where appointment had also changed and now a separate commission the Judicial Appointments Commission. This much needed reform was mainly influenced by the enactment of the 1998 Human Rights Act mainly S6 that guarantees a fair trial for everyone. The section is lead to the House of Lord and its Judges is no longer housed in the parliamentary building but is not situated in an unattached new building this is now called the Supreme Court which opened in October 2009.
The doctrine of the separation of powers as stated by Montesquieu focuses on the branches of government rather than the type of government. Montesquieu identified the three branches of government in order to elude the corruption of power. Montesquieu said that power is better be allocated and separated between the three organs of the state. The executive who carries out fundamental works on the behalf of the state is seen as the defender of the nation. An example of this is when the executive conduct foreign affairs and manage internal policies. The legislator which creates legislations and the judiciary that applies the legislation in order to settle disputes and punisher those who commit crimes. According to the doctrine of the separation of powers, the executive cannot make law. As one can imagine parliament does not have the time to create all laws and therefore others become involve by the powers given to them to make laws. These are called delegated legislation; delegated legislations are mainly made by local authorities who essentially are the executive. The legislative should never get involve with the resolution of disputes. More importantly none of the three branches should exercise the power of the other. Neither should anyone be a member of any two of the branches. This is in order to safe guard our civil liberty as Montesquieu stated:
“When the legislative and the executive powers are united in the same person, or in the same body of magistrates, there can be no liability...Again, there is no liability if the judicial power be not separated from the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary; for the judge would then be the legislator. Were it joined to the executive however, the judge might behave with violence and oppression”
The case of M v Home Office  shows what happens when the executive and the judiciary clash, an asylum seeker was refused asylum who then applied for judicial review which also subsequently failed. Later, his legal representative advised him to make another request for a judicial review different with fresh evidence while his flight was due to leave in only 30 minutes. Judge Garland J. heard M's emergency application and decided to halt his deportation and allow a full consideration of his fresh application to be heard. M's legal representative initiated contempt proceedings against the Home Secretary for refusing the will of the court. This case brought the question whether the courts have any jurisdiction to find a minister of the crown in contempt of the court, a criminal offence. Simon Brown J ruled that:
'reluctant though any court must be to proclaim the crown beyond the reach of its ultimate coercive jurisdiction, it is, I believe, difficult to regard this as a black day for the rule of law or for the liberty of the subject. The court is not abrogating an historic responsibility for the control of executive government. Rather, it is recognising that when it comes to the enforcement of its decisions the relationship between the executive and the judiciary must, in the end, be one of trust.'
To conclude owed to our constitution mainly this means the UK does not have a formal separation of power. It is important to analyse and look at the history of the UK that made the constitution the way it is today. Therefore it is essential to look at writers such as Aristotle and more importantly Montesquieu who wrote The Spirit of Laws. According to WB Gwyn, “no-one has been able to find an explicit statement of the separation of powers before it was discussed in the writings of seventeenth century Englishmen”. It is safe to say the seventeenth century theories of the separation of power were more concerned with accountability and not preserving liberty. The separation of power in the UK is more concerned with having a balance between the limbs and also between the government and the monarch. Not even Montesquieu polarised term of the separation of power still did not reflect the true picture of power in the UK.
It is not possible for courts to declare any legislation made by parliament as unconstitutional for breach of the doctrine. It is also not possible or practical for the UK to have a strict separation of power has limbs usually provide checks and balances for each other. However, the UK has carried out fundamental reforms to have a much clearer separation of power and also adhere to Human Rights Laws. According to Bradley and Ewing: “While the classification of the powers of government into legislative, executive and judicial powers involves certain conceptual difficulties, within a system of government based on law it remains important to distinguish in constitutional structure between the primary functions of law-making, law-executing and law-adjudicating. If these distinctions are abandoned, the concept of law itself can scarcely survive”.
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