Finally the judiciary (Court system) is responsible for applying the law in settling legal disputes by interpreting legislation so as to enforce the intention of Parliament. It has the power therefore to make law.
These are the functions set out for each of the principal bodies however in the UK it can be seen that there certainly is not a clear separation between the branches of the State. Instead, there is a striking dominance by the executive over the legislature. Traditionally, the leader of whichever party in the Commons that commands a majority forms the Government (executive). As a result, the executive is able to exert considerable pressure over the legislature. This situation is highlighted by the rise of the party system in Parliament. There seems to be a fusion, as the executive carries out functions, which should be completed by the legislature such as making delegated legislation. Thus although legislation is the responsibility of Parliament, in reality the legislative programme is run by the Government. In some Acts, there are certain clauses laid down by Henry VIII that grant powers to ministers to modify legislation (primary). These powers may be seen to ameliorate the efficiency of the parliamentary process, however they strengthen the executive at the expense of the legislature. Leading on from this is the fact that in the UK, the party system means that citizens of the country are electing the Government. In some countries, elections are held separately for the legislature and the executive; in the UK, these are roles are essentially together.
It is claimed that the judiciary is largely independent of both the executive and legislature, I believe that there is a clear overlap of functions between the judiciary and legislature. It concerns the making of procedural rules which is an example of law making by the judiciary rather than by the legislature and the fact that the courts obtain their power from the Crown shows the clear overlap within the UK constitution. According to the doctrine, as well as the functions of the three branches being distinct from one another so should the personnel. Nevertheless, in the UK, there is a clear link between the three bodies within the system of government. This can be seen by members of the executive that sit within the legislature as do some members of the judiciary. However the most noticeable breach of the doctrine of the separation of powers is the position of the Lord Chancellor who sits in all three branches. His position in relation to the doctrine within the constitution will be discussed later.
One reason why it has been held that the UK constitution is in breach of the doctrine is to do with the fact that the UK, unlike other countries such as America and France never underwent a lasting revolution. This therefore means that there has not been a need to establish a new constitution and so the separation of powers has not been incorporated specifically into the constitution. After a revolution is over, a written document is regularly produced in order to clarify and certify certain rules that govern bodies within the State, including that of the separation of powers. However in the UK, the separation of powers has not been clearly set up in the form of a written document, which increases the possibility of excessive power and therefore tyranny.
I shall now look at the most significant example to show the violation of the doctrine of the separation of powers, the Lord Chancellor. The Monarch on the advice of the Prime Minister appoints the Lord Chancellor and he has functions in all three arms of the UK constitution. He is head of the judiciary and is recognised as being President of the Supreme Court (the Court of Appeal, the High Court and the Crown Court) under the Supreme Court Act 1981. He is also the presiding chairman of the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. Secondly, he is a senior member of cabinet with responsibility for much of the administration of justice. He is also responsible for the appointment of judges and court staff, and taking executive decisions especially when working closely with the Law Commission who keep under review law which is of a concern due to it’s development and reform. The fact that he is a member of the cabinet gives rise to the greatest argument concerning the breach of the doctrine of the separation of powers because it shows too close an association between the head of the judiciary and the central body of the executive (cabinet). Lastly, he is a speaker in the House of Lords and a principal spokesman for the government. He is free to vacate his seat and take part in debates on new laws. He also introduces new government bills on matters concerned with justice into the House of Lords such as the Access to Justice Bill 1998. He participates in decisions affecting both common law and statutory interpretation. It is therefore clear that having such vital roles in all three organs can easily give rise to breaching the doctrine of the separation of powers because of the clear overlap of functions that exists between the three primary bodies due to the responsibilities of the Lord Chancellor.
From the facts that have already been discussed, one could only argue in favour of Lord Simon Glasdaile’s view that the separation of powers does not exist however there is also argument to think otherwise. In his book, Colin Munro puts forward a view that while law lords possess legislative powers, they do not freely exercise them. Also although all members of the cabinet must sit in Parliament, there is a cap on the number of ministers within the government. He concludes that ‘ we must grant that there is no absolute separation of powers in this country 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.
Since it’s accession to the European Community in 1972, the UK’s constitution has been extended to incorporate European legislation which has increased the number of checks and balances upon the executive, legislature and judiciary. The position of the judiciary has strengthened since the incorporation of the Human Rights Act 1998 into UK law since it can now quash an administrative action as seen in R v Secretary of State for the Home Department ex parte Daly. Furthermore the courts still cannot declare an Act of Parliament as unconstitutional as seen in Pickin v British Railway Board. This supports the theory of separation of powers, as the judiciary cannot trespass into territory of the legislature. The judiciary appear to be very keen that each primary body work within its own allocation of power and will say when a member of the executive has exceeded their allocated powers and will also refuse jurisdiction when lawful authority is not being used. In R v Secretary of State for the Home Department ex parte Fire Brigades Union the House of Lords held that the home secretary had acted unlawfully in the way they had used the prerogative. On the other hand, in Chandler v DPP the court refused to hear the case on the grounds that the evaluation of threats to national security is not for the judiciary but for the government.
In conclusion to this essay, I feel that both sides of the argument have been looked at and it is fair to say that the UK constitution does not include an absolute separation of powers however the doctrine also does impose limits on the exercise of governmental power. In my opinion, I feel that the doctrine of separation of powers does exist to some extent within the UK constitution however I also believe that from Montesquieu’s perception, the doctrine does not exist on a scale as imagined and expressed by himself.
Bibliography
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H Barnett, Constitutional and Administrative Law, 3rd edition ,2000
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A Bradley & K Ewing, Constitutional and Administrative Law, 4th edition
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C Munro, Studies in Constitutional Law, 2nd edition, 1999
Cases
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Chandler v Director of Public Prosecutions (1964) AC 763
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Pickin v British Railway Board (1974) AC 765
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R v Secretary of State for the Home Department exparte Daly (2001) 2 AC 532
- R v Secretary of State for the Home Department exparte Fire Brigades Union (1995) 2 WLR 1; 2 All ER 244
Statutes
- House of Commons Disqualification Act 1975
Word Count: 1760
H Barnett Constitutional and Administrative Law 3rd edition p 123
H Barnett Constitutional and Administrative Law 3rd edition p 127
H Barnett Constitutional and Administrative Law , 3rd ed, p129
House of Commons Disqualification Act 1975
C Munro, Studies in Constitutional Law, 2nd ed, p 328-332
R v Secretary of State for the Home Department ex parte Daly (2001) 2 AC 532
Pickin v British Railway Board (1974) AC 765
R v Secretary of State for the Home Department ex parte Fire Brigades Union (1995) 2 WLR 1; 2 All ER 244
Chandler v Director of Public Prosecutions (1964) AC 763