Constitutional law - In this county, our constitution does not embody a full separation of powers. Our parliamentary democracy makes for a considerable fusion of the executive and legislative branches (Lord Irvine). Discuss
Constitutional Law
In this county, our constitution does not embody a full separation of powers. Our parliamentary democracy makes for a considerable fusion of the executive and legislative branches (Lord Irvine). Discuss
"While a strict separation of powers has never been a basis for the British constitution these arrangements seem to fly in the face of common assumptions about the role of the two Houses in relation to the Executive" (Jowell & Oliver 1994). Whilst Jowell and Oliver talk about the separation of powers not being a basis for our constitution, I will look at the arguments for and against this concept and give reasons for my findings.
To do this I will first need to consider what a constitution is and what is meant by the doctrine of separation of powers.
"A constitution is a set of rules that seek to establish the duties, powers and functions of the various institutions of government, regulate relationships between them and define the relationship between the state and the individual" (Heywood 2000). A constitution is a set of rules that lays down who can do what and to whom. The British constitution is unwritten/uncodified (not written down on any papers), which means it is flexible (easy to amend and make changes). Our constitution is also unitary which means that power is centralised and focussed around the national government and is not dispersed into other local governments.
Separation of Powers allocates and limits specific powers to differing institutions.
The principle of Separation of Powers, distinguishes between three functions of government, the legislature, executive and judiciary. We need a Separation of powers to check that each branch of government is not abusing its powers against either of the two remaining branches. This doctrine of Separation of powers believes that each of the three institutions of government should be vested in separate functions with no overlap, as giving one branch excessive power can be a threat on our individual liberty. Some constitutions believe that the powers of the legislature, executive and judiciary should be put into effect by different people or groups. The point of this is to make sure that power does not fall into the hands of a single group or person. The three divisions of government should be able to keep a watch over each other by having power over one another in certain conflicting situations. This can be achieved through the system of 'checks and balances'.
If each institution was to scrutinise each others actions, then the power of each separate institution would be kept within the desired limits and kept fairly equal to each other. This would mean that the fight of power by one division over the remaining two would be prevented and at the same time the balance of power would be maintained. We first need to consider the roles and functions of the three main institutions of government.
The legislatures function is the process of law making,
Parliament is bicameral (made up of two chambers), the House of Lords and the House of Commons, each exercising a legislative role. Each House has an important role in certifying the accountability of government, even though the two Houses do not have equal powers. The House of Lords is always thought of as the more prestigious of the two, even though it is not an elected body, so it is not protected by election and is therefore not accountable to the electorate in any way. However, the House of Commons is accountable to the electorate as it is an elected body. A parliamentary term is limited to a maximum of five years under the Parliament Act 1911. The legislative and executive branch work together effectively according to appointment, organisation, and methods of procedure.
The executive branch consists of the Prime Minister, the cabinet and other ministers who are elected members of Parliament (MP's). The Executive initiates policy and is accountable for its implementation. The executive has the role of not only implementing and applying law but also making sure that all legislative requirements are carried out efficiently.
It is the job of the judiciary to implement the law and equally it is their role to interpret the law as it is, not to decide what the law should be. The judiciary is a branch of government which gives a ruling ...
This is a preview of the whole essay
The executive branch consists of the Prime Minister, the cabinet and other ministers who are elected members of Parliament (MP's). The Executive initiates policy and is accountable for its implementation. The executive has the role of not only implementing and applying law but also making sure that all legislative requirements are carried out efficiently.
It is the job of the judiciary to implement the law and equally it is their role to interpret the law as it is, not to decide what the law should be. The judiciary is a branch of government which gives a ruling upon conflicts between state institutions, between state and individual and between individuals themselves.
The judiciary is free of Parliament and the executive. Although the judiciary is highly independent and is secured under the constitution there are still many characteristics of the judicial function which have similarities between Parliament and the executive.
The House of Lords has become rigid, both by legislation and the political environment in which an unelected body is seen as an illegitimate while the House of Commons has become more of a dominant body.
Members of Parliament have gained a decreasing role in independently scrutinising the any legislation proposed by government because of the development of political parties. As a result of these developments, the government or party who is in power at that time dominates the legislative and executive functions of government. What is more, the highly valued principle of parliamentary supremacy limited the power of the courts to act as a check on government. This shows the importance of separation of powers. Furthermore, Royal Assent does not act as a check on legislation either, because the queen only does anything with the advice of ministers and does not withhold her consent although she could if she wanted to or didn't agree with a particular policy (by convention).
The importance of separation of powers is stressed by several founders in their writings, as there are many arguments in favour of a full separation.
Baron De Montesquieu (a French jurist) stated that "when the legislative and executive powers are united in the same person or body of magistrates, there can be no liberty because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power cannot be separated from the legislative and executive". (Benton 1952)
A full separation of powers is not present in the UK. This is partly because the Prime Minister and his cabinet are members of Parliament, and they are part of the legislature. The Prime Minister is also the head of the executive branch. This is one of the reasons we may say that the legislative and executive branches are largely fused together.
Another reason may be said to be because of the several roles of the Lord Chancellor. His roles reveal why the government office is claimed to breach the doctrine of separation of powers. The Lord Chancellor is head of the Lord Chancellors department in the executive so therefore he is a member of the cabinet. He is the speaker in the House of Lords so therefore he is a member of the legislature. The Lord Chancellor is head of judiciary and is known as President of Supreme Court. Within the Supreme Court Act 1981 it is the Lord Chancellor's responsibility and duty to look after the administration of Supreme Court (Court of Appeal, High courts, Crown courts). Along with these many roles, he is also a member of the House of Lords Appellate committee and judicial committee of the Privy Council and so he will contribute in decisions which may affect both common law and statutory interpretation. He works with the Law Commission of England and Wales found by Law commissions Act of 1965. The Law commission has the duty to review the Law and make any reforms to it that they feel are necessary.
However, it can also be argued that there is a 'partial' separation of powers in the UK.
The legislative and executive branches are fused, but the courts are more or less separate, although there are some exceptions, such as the House of Lords. The Lords is the highest court of appeal within the UK, and even though the Law Lords are not members of government, they sit in the House of Lords in its legislative office.
The judiciary carries out an important role in relation to the executive branch of government as the judges act as a check on executive actions. This means that judges can assert their power, (which comes from the Rule of Law), to re-examine activities performed by the executive.
The independence of the judiciary is an important feature of the British constitution. Independence of the judiciary helps avoid abuse of power by any of the three institutions of government.
"In the UK we seek to achieve the independence of our judiciary by offering senior judges security of tenure under the Act of settlement 1700, so that they might dispense justice without fear or favour" (Beale 1997)
Judges cannot be removed from office if their behaviour is good, they can only be removed from office by the queen if she has been addressed by both Houses of Parliament for the judge's bad behaviour, (this is the Act of settlement 1700, which was re-enacted in the Appellate Jurisdiction Act 1981 and the Supreme Court Act 1981).
By convention there is a rule in the House of Commons that, Members of Parliament should not make comments or reflections upon the activities of any judges. Judges should not be the focus of criticism in a parliamentary debate, except when they are discussing whether they want to remove a particular judge. Breach of this convention may result in the disapproval of Parliament.
Natural justice is a doctrine known in the section of public law. One feature of this doctrine is the idea that a judge is under a duty not to adjudicate on cases in which he has either an interest or where he may be influenced by bias. "No man should be judge in his own cause" (Barnett 2002).
The executive has some form of control over the judiciary because it can decide who is selected to a judicial position. The common law power of the high court to review the legality of action taken by executive agencies such as local authorities is an important device in terms of the judiciary and the executive. If a public body has gone beyond the restrictions of its authority, whether by acting unjustly or irrationally, then a citizen is able to request a judicial review. A person who claims that he has been the victim of a breach of his convention rights under the Human Rights Act 1998 could also use the same procedure and apply for a judicial review. If the High court feels that a public body has exceeded its power (ultra vires) then the High court can overturn that judgement, and the citizen can then seek some redress against the executive. An example of this is 'Council of Civil Service Unions v Minister for the Civil Service (1985) (prerogative power held to be reviewable by the courts).
In the House of Commons Disqualification Act of 1975 all full time judicial appointments ban the owner from the membership of the House of Commons.
Parliament is able to control the courts by legislation, but judge's salaries are permanently authorised which means that this authority does not need to be renewed or reviewed each year by Parliament.
Ministers are a part of the executive branch and also an essential part of the legislature, which means they are members of either the House of Commons or House of Lords. Although this is a breach of the doctrine of separation of powers, it can be based on reason that it encourages the responsibility that ministers have to parliament, by making sure that they can be questioned, contribute in debates and make statements to the House of Commons or Lords. Ministers have a large number of powers under statute to pass sub-ordinate legislation, normally in the shape of statutory instruments. If these legislative powers were not allocated to ministers then legislative system within the House of Commons would become out of hand and unmanageable.
The House of Commons has a great degree of control over the executive as it can bring about the resignation of a government with the vote of 'no confidence'. However there are less drastic ways of exercising control such as question time, select committees, adjournment debates and Opposition days. Delegated legislation is also subject to some kind of parliamentary scrutiny.
Delegated legislation (also known as secondary legislation) brings up important questions relating to the separation of powers. Delegated legislation refers to laws, rules and other regulations, which are made by government departments, public bodies and local authorities. By delegating power Parliament is not tied up in scrutinising every detail of a bill, (as explained above). Delegated power allows ministers to put in the details after the Act is passed and in force. The consequence of delegated legislation is that a legislative function is being carried out by the executive and not parliament. However, if parliamentary scrutiny is sufficient and the courts are alert and effective in making sure that delegated powers are exercised accordingly to the law, then this breach of separation of powers is inescapable. The United Kingdoms 'first past the post' electoral system along with strong party discipline means that in tradition, a government with an overall majority in the House of Commons has a large degree of control over parliament.
An alternative to the British constitution is the USA as it consists of a full separation of powers. Each of the three major functions was given to three separate organs. Legislated power was given to congress, which includes the House of Representatives and the Senate, whilst executive power was vested in the President and judicial power was vested in the Supreme Court.
We must contrast the UK with the USA as it consists of a written/codified constitution, as it includes that the Supreme Court has the power to announce legislation as unconstitutional or unacceptable. This power does not exist within the UK, although under the Human Rights Act 1998 a court is able to present a declaration of incompatibility if it finds that domestic legislation can't be clarified in a way that ensures compatibility with convention rights. Then it is for the minister to take action to modify the piece of legislation.
There is obviously some form of Separation of Powers within the UK but it is difficult to tell where the separation actually lies, since the concept of 'legislations', 'adjudication' and 'execution' have not been given a clear cut definition. However, it has been wisely stated by Lord Diplock that "it cannot be to strongly emphasized that the British constitution though largely unwritten is firmly based on the separation of powers", (Barnett 2002). Parliament is the law making body whilst the judiciary is the body which interprets the law.
Without doubt, the Separation of Powers is not a complete or a major feature of the British constitution. The model of separation of powers gives the judiciary a protective tool, for the protection of the independence of the judiciary and against allegations of judicial interference into matters which don't concern them and have more to do with Parliament or the Executive. Separation of powers is limited in the UK partly because of the degree of fusion between the executive and legislature.
The separation of powers is a valued principle within the constitution which puts forth its power on each of the primary organisation of the country. Although there is not a clear definition of the Separation of Powers within the UK it should not completely be rejected or set aside in any way.
(2,575 words)
References
Jowell J & Oliver D (1994) 'The changing constitution'
Heywood. A (2000), 'Key concepts in politics', Macmillan
Beale A (1997) 'Essential constitutional law'
Benton W (1952) 'The spirit of law'
Barnett H (2002) 'Constitutional and administrative law'
Bibliography
Lee. R G (1989) 'Constitutional and administrative Law'
Brazier. R (1990) 'Constitutional texts'
Molan. M T (1999) 'Constitutional Law: The machinery of Government'
Robert D (1999) 'British Politics; in focus', second edition
i
