Locke proposed that the legislative and executive powers should not be under the control of the same governing body hence the separation of powers. By separating the two powers it means that if the legislative make laws which are not seen to be in the best interests of society by the executive then the executive shall have the power to choose not to enforce it and the law will be prevented.
There are however several flaws in Locke’s ‘Separation of Powers’, which arise out of Locke’s assumption that members of government will respect the wishes of their electorate. The first and foremost flaw, is that although the legislative power is dependent upon that of the executive, the executives power does not require that of the legislative, thus leaving open a possibility of an over abuse of executive power. The legislative are powerless to stop a tyrannical executive, they could make laws to try and prevent the executive from acting in such a way so as to harm society, but to enforce these laws they need the power of the executive, precisely who it is the laws are trying to curb.
In the Separation of Powers, it can be impossible to separate the legislative from the executive. The Prime Minister is an active member of the legislative yet he is also the leading member of the executive. Also the Lord Chancellor is a member of the cabinet and therefore of the executive as well as being head of the judiciary. The House of Lords also has a right to vote on bills so they are part of the legislative but the Lords also contains the Law Lords who are an important part of the judiciary. As with the Prime Minister, the members of the Cabinet are also members of the legislative who have the right, as a Member of Parliament, to vote on issues. Therefore, there is a merging of roles in the British model. It may be argued that this is needed for flexibility in a modern society. With the American model there is a written constitution that gives each sector of government a clear understanding of their role so that each cannot infringe onto power held by other parts of the political system or have its powers infringed on by others. The Executive (President’s office), the Legislative (Congress) and the Supreme Court (Judiciary) have very clear powers stated in the American Constitution that restricts each section’s powers and avoids crossover between the three sectors of government
It can be seen that legislature has limited power under the separation of power. Not only does it not have the power if opposed by the executive to have its laws enforced, but now it seems the executive has the power to interpret the law as freely as it wishes, even to the extent of disfiguring the laws to the point of non-recognition. This is a serious problem with the separation of powers, were the legislature and the executive, under the unwritten constitution of the United Kingdom, cannot have independence and the executive has the opportunity to abuse its power.
In recent years the separation of Powers has been called into question a number of times. The main reason for this has not been because of the links between the legislature and the executive but because of the conflict between the executive and the Judiciay. The problem seems to have stemmed from the Conservative governments 1979 policy of centralisation. Which lead to the extension of judicial review and the increasing role of the judiciary. This has led to problems relating to the power of judges and who should make the law.
The introduction of European Law and its precedence over national law has brought the conflict to the fore developing a conflict between the judiciary and politicians, particularly in the area of fundamental human rights with the implementation of the Human Rights Act 1998. The Times1 wrote in 1996 that in the ten years previous to that, a debate between the two would have been unthinkable and it shows a growing conflict between them.
A major factor that has called into question the independence of the judiciary is the Home Secretary’s minimum sentencing proposals. This was reported by The Independent2, who claimed that the role of the Judiciary and its level of independence were becoming blurred. A major ruling which started to question the separation of powers was the Court of Appeals ruling to withdraw benefit from asylum seekers. Social Services Secretary Peter Lilley asked the House of Commons whether the Judiciary now had a democratic mandate to decide which laws are acceptable or whether Parliament continued to decide what the law should be. The Times3 commented that the judiciary’s new power was seen by some competitors to be eroding the principal of parliamentary sovereignty enshrined in the Bill of Rights 1689. The Modernisation of Justice Bill4 aimed at solving the problem by reducing senior judges powers to a consultative role in connection with professional rules such as advocacy rights aimed a counteracting the Conservatives government’s policy of centralisation, however this was never implemented and the problems continued.
Questions were not only asked about the judiciary however. The Daily Telegraph5 reported that Lord Chief Justice, Lord Woolf, demanded that the Home Secretary should stay away from the sentencing of individuals completely and that it was likely that he would lose even more powers when the House of Lords takes away his power to set “whole life” prison tariffs. On the Home Secretary’s comments about his own sentencing powers and on those of the Judiciary, Roy Amlot QC, head of the Bar Council, remarked that he, “Strikes at the principals of the Separation of Powers and the independent judiciary, hallmarks of a democratic state.”6 He also suggested that any moves to interfere with the judicial system subvert the ethos of the Human Rights Act 1998.
The Human Right Act 1998 insists an independent impartial body sentences offenders and that they are afforded adequate representation. Lord Patten, referring to the dual role of the Home Secretary claimed that it, “Flies in the face of Art. 6 of the Human Rights Act.”7 In the case of Jon Venables and Robert Thompson in R v Secretary of State for the Home Department, [1998] AC 407, Lord Steyn held that, “ In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principal of the separation of powers between the executive and the judiciary, a classic judicial function.”8 No other country in the European Union sentences prisoners in this way and no other politician in Europe has the power to make such a decision. This casual attitude towards the separation of powers would not be tolerated for much longer however and was most notably recorded in 1999 in the Venables and Thompson decision, were the European Commission found that the United Kingdom had violated Art. 6 of the Human Rights Act 1998, for increasing the sentence imposed on under age children.9
By October 2001 the Home Secretary, David Blunkett, was calling for the Judiciary and Parliament to work together to help restore confidence in democracy and in the legal and judicial system. Those in the legal profession however did not hold his policies favourably, most notably Roy Amlot QC10, who called for less political interference in the administration of justice. Particularly in view of the government’s proposed reforms of the criminal justice system. Mr Amlot urged ministers to steer clear of the proposals that would introduce the loss of a right to jury for people accused of offences carrying a maximum penalty of two years imprisonment. He stated, “If the aim is to put the courts in touch with the communities they serve, any ultimate moves to remove the trial by jury would fail that test and inevitably meet strong public opinion.” This clearly questions the separation of powers, as the people would not be represented and the power to make decisions would rest only with government. As mentioned this is exactly what the doctrine of the separation of powers initially tried to stop. Mr Amlot’s comments however were met with some opposition from the Lord Chancellor, Lord Irvine, who claimed the new proposals, “… urged the government to move beyond law, structure and rules which exist only for historical reasons.” Seemingly contradicting the opinion that is held by most of the judiciary and even questioning the existence of the separation of powers. Unlike most of the judiciary however the Lord Chancellor has a conflict of interests as he also sits in the executive as part of the cabinet. Another position similar to this is that of the Home Secretary, who is able to decide on the sentencing in certain trials and this could be the reason for the blurring of divisions between the two sections.
From this analysis it has been seen that the United Kingdom have had a fairly successful implementation of a system of separation of powers, however it cannot be said that there has been a complete execution of the model. The main problems seem to have arisen out of the fact that the United Kingdom does not have a written constitution and there is a blurring in roles between the three sectors of government. Within the American model no such conflict seems to exist, the reason being, that through their constitution each organ of government knows their place. The United Kingdom model has also not been helped by the conflict between the executive and the judiciary and by the introduction of European Supremacy that has gone some way to stripping the powers of the national executive. This European Integration, in the long run however, may sort out the separation of powers in the United Kingdom by curbing the power of the executive and fully separating it from the legislature and the judiciary.
1. “Are judges now the Opposition? On the conflict between the judiciary and the executive.” Michael Beloff. The Times. June 8, 1996, 20
2 “Now judges speak out, but should we listen?- The new, outspoken judiciary must remember that it is the governments job to make policy.” Lindsay Farmer. The Independent. August 6, 1996, s.2, 20-21
3 “Should the judges or the MPs make law?- Why judges and politicians are at odds over who makes law.” Gary Slapper. The Times. July2 1996,35
4 “Judges revolt over Irvine’s reform plans- Lord Chancellor is told proposals are a threat to the independence of the judiciary.” Francis Gibb. The Times. October15,1998,11
5 “Woolf says only judges should set life terms.” Frances Gibb. The Daily Telegraph. July 9,2002,2
6 “Politicians should leave justice to the judge and juries.” Roy Amlot. The Times. November 13,2001,Law
7 Motion on Judicial Appointments. Hansard, HL, March 1,1999
8 R v Secretary of State foe the Home Department, ex parte Thomson and Venables, [1998] AC 407.
9 “European Court supports Bulger Killers.” Daily Telegraph, March 16. 1999
10 “Criticism of proposals to restrict jury trial.” Alan Pike. Financial Times, October 9, 2001, 14