Political constitutions are incomplete contracts and therefore leave scope for abuse of power. In democracies, elections are the primary mechanism for disciplining public officials, but they are not sufficient. Separation of powers between executive and legislative bodies also helps to prevent the abuse of power, but only with appropriate checks and balances. Checks and balances work by creating a conflict of interests between the executive and the legislature, yet requiring both bodies to agree on public policy. In this way, the two bodies discipline each other at the voter’s advantage. Under appropriate checks and balances, separation of powers also helps voters to elicit information.
In the UK system, as in many jurisdictions, this corresponds to a separation between the executive (Prime Minister and other ministers of the Crown), legislative (Parliament) and judicial (judiciary) arms of government. In this system, there are two houses of the legislature: the House of Lords and the House of Commons. The House of Lords consists of the nobility of Britain and due to a recent period of reform, the peerage plays a reduced role. New members are nominated by an Appointment Commission that represents the major political parties and experts in the House of Lords. Appointments, once rubber-stamped by the Queen, are for life. The House of Lords serves a judicial function but as a legislative body, is widely regarded as ineffectual. It can delay the passage of bills issued by the lower house, but cannot veto them.
The House of Commons consists of Members of Parliament (MP’s) elected from electoral districts. In the Commons, the majority rules and the majority party makes all the laws whilst the minority has little voice. As Britain has now formal, written constitution, no law can be unconstitutional. The Queens duties within this process are more to rubber stamp decisions that have already been made rather than having any legislative effect. In our model, the Labour Party in the House of Commons holds all of the power, the judiciary has now power of review, the House of Lords holds little more than delaying powers and the monarch is ineffectual – we do not, in practice, have a genuine separation of powers.
Let’s examine how it operates in practice. Due to the European Court of Human Rights decision that it was unlawful for politicians to be involved in sentencing juveniles, the former Home Secretary’s (Michael Howard) decision to impose a 15 year tariff on the two boys who killed two year old James Bulger – Jack Straws intervention was heavily criticised by the Lord Chief Justice Woolf. The Lord Chancellor indicated that the Government might occasionally refuse to follow judges’ rules on cases under the Act – a statement used as evidence that Mr. Straw might refuse to give us his sentencing power in cases such as that of Myra Hindley (Straw stated that life should mean life for Hindley whereas the Lord Chief Justice said that her case had not been dealt with correctly).
However, UK courts are not directly bound by the judgements of the European Court of Human Rights. Domestic Courts are only required to take into account decisions of the European Court of Human rights – they are NOT bound by the decisions of the ECHR.
