The Theory of the Separation of Powers in UK Government.

by harshini2009yahoocomsg (student)

SEPARATION OF POWERS

The doctrine of SOP is the appropriate allocation of powers and the limits between the legislature, executives and the judiciary. Each state organ must be rules by different people and each of them have different powers.

The doctrine originated from Aristotle, where he distinguishes the deliberative, majesterial and the judiciary in every constitution. By the 13th century, England’s King, Lords and Commons could be classified in three types of government, monarchies, aristocracies and democracies as per ancient Greece.

In UK today, Montesquieu sees SOP in a different way. He believes there is legislative, executive and judiciary in a constitution. Currently, there is a proper allocation of powers between the three state organs. Furthermore, the SOP doctrine aims to avoid absolutism in power by preventing a monopoly of powers and functions.

Montesquieu also mentions that all would be lost if the same man or same ruling body were to exercise these powers. This shows SOP is important in upholding the rule of law doctrine in the British Constitution. Since there is an unwritten constitution in UK, it is a product of experience and does not recognize strict SOP. For example, the ministerial responsibility convention says that ministers not only implement laws but they are decision makers too. Hence, sufficient SOP results in checks and balances within the British Constitution.

SOP within the Westminster system

Legislature and Executive

The Queen belongs to the legislature and executive, being the head of executive and part of the parliament despite her diminishing and limited power. The Prime Minister and his Cabinet are executives through s2(1) of the House of Commons Disqualification Act 1975, it limits the number of ministers who can sit and vote in the HOC at any given time. The Lord Chancellor used to be a speaker of HOL, head of judiciary and cabinet representative in the Executive. However due to the enactment of the Constitutional Reform Act 200, he only retains his position in the ...

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Legislature and Executive

Executives exercise their legislative functions through delegated legislation. This is the only type of legislation they are allowed. Their power helps save the legislature time. Ministers of the Crown, must be members of Parliament and thus results in him being a minister for the state and leading him to propose bills like the Justice and Security Act 2013, which may favour them or their political party and can be seen as a detriment.

Through question time, debated, scrutiny of committees, the control of finance, ventilation and redress of grievances, Acts of Parliaments and delegated powers, the Parliament scrutinises the executives and this acts as the checks and balances within them. Thus these check and balances can be seen as effective.

Legislative and Judiciary

The Queen belongs to both parliament and judiciary but however is seen as a rubber stamp as the royal assent will be granted after both houses of Parliament have passed a bill.

Legislature performs judicial functions as they enforce parliamentary privileges. The House of Parliament can act like a criminal court in considering if someone is in contempt of Parliament. A series of memos were leaked from the Home Office in 2008 and police investigation led to a minister, Damien Green who was protected from arrest due to parliamentary privilege, protecting members of Parliament.

Judges can make law like in R v R and can declare a statue incompatible through section 4 of the Human Rights Acts 1998. Since no one can question an act of parliament, it can alter the effects of judicial decisions, as parliament is sovereign. In the case of Burmah Oil, the War Damages Act 1965 was made respectively. Due to Parliament being supreme, there is very limited check and balances between the legislature and judiciary.

Executive and Judiciary

Likewise, the Queen and Lord Chancellor (used to) have memberships in the two state organs. The judicial committee of the Privy Council whose members includes former and present Lords of Appeal.

Through the Act of Settlement 1700, there is judicial independence and dismissal is no longer at the discretion of the executives. However the judges still appoint judges through the Judicial Appointment Committee.

The sub-judice convention states that executives cannot comment on an on-going case and also criticize the judiciary’ s decision to ensure an effective government. However, in reality, an instance where the sub-judice rule has not been adhered to can be seen when Theresa May criticized judges for failing to deport criminals. By Theresa May criticizing the judges openly, it shows the public that the government is not effective after all and that the state organs do not work hand in hand in all situations.

The Home Secretary has the power to exercise prerogative of mercy and reduce can judicial sentences, but not remove a conviction. Until recently, the Home Secretary enjoyed powers over the 'tariff element' of life sentences. In R (Anderson) v S of S for Home Dept, the Home Secretary set a tariff of 20 years despite the trial judge recommending 15 years, which this displayed the discretion of the Home secretary. Thus an independent/impartial tribunal was not achieved till the power of the Home Secretary over the tariff element of life sentences were extinguished.

Judges can also do judicial review on cases to supervise the exercise of public power on the application of an individual. A person, who feels that an exercise of such power by a government authority is unlawful, because it has violated his or her rights, may apply for a case to be judicially reviewed.

However the ruling of the landmark GCHQ case puts a guard to this excessive power; executive decisions can be judicially reviewed even if it is from a royal prerogative power. This principle was applied in M v Home Office with the decision 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 Attorney General may stop proceedings on the grounds of nolle prosequi like in the case of Gouriet, where judicial review could not have been done, as AG’s decisions cannot even be challenged in the courts.

Though the checks and balances such as the sub-judice rule, executives appointing judges through the Judicial Appointment Committee, the courts protect rights like in Entick v Carrington and also ensure that the government is under law like in M v Home Office. Hence it shows that these are sufficient checks and balances and can also been seen as effective.

In conclusion, SOP is a much-respected doctrine in UK, upholding rule of law. However due to the overlaps between the state organs, there are no material differences as per Sir Ivor Jennings. Since the British constitution is unwritten and gradually develops, the doctrine of SOP has helped set a sufficient amount of overlaps, checks and balances. Thus as per Barnett, SOP together with rule of law along with parliamentary sovereignty runs like a thread throughout the British Constitution.