Would the abolition of the office of Lord Chancellor resolve the anomalies that attach to the UK doctrine of the separation of powers?

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Christopher M Barnes

Constitutional Law Assignment

December 2004

Tutor Group 2

Cathy Morse

Student ID: 14014863

Question (1)

 "The whole office of the Lord Chancellor is a heap of anomalies. He is a judge, and it is

contrary to obvious principle that any part of administration should be entrusted to a judge;

it is of very great moment that the Lord Chancellor, our chief judge, sits in the cabinet, and

makes party speeches in the House of Lords."

(Walter Bagehot, The English Constitution, 1867).

Would the abolition of the office of Lord Chancellor resolve the anomalies that attach to

the UK doctrine of the separation of powers?

Constitutional Coursework

        The concept of the reformation of the United Kingdom's constitution occurred when the Prime Minister Tony Blair came into power in 1997 and eventually in 2003 the idea of the abolishment of the Lord Chancellor was decided upon. His idea was to replace the House of Lords with a US style Supreme Court and appointment made by the Judicial Appointments Committee. The 'Lord Chief Justice' will replace the Lord chancellor and the Lord Chancellor will become the 'Head of Department for Constitutional Affairs.' The House of Lords will also be allowed to appoint its own speaker of the house. This concept will be enforced to ensure the separation of powers, ensuring an adequate balance required for a stable government, formed by the not yet implemented Constitutional Reforms Bill 2004.

        The separation of powers ensures that any single section of government can not gain excessive power, which would ultimately lead to a dictatorship. An example of this can be seen in 1930s Germany with Hitler's rise to power. After appointment as Lead Chancellor, his first legislation to pass was the abolition of the president, giving him complete power and forming a totalitarian government. This can be avoided by distributing the powers between the three government roles, the Legislative [Parliament,] the Executive [the cabinet headed by the Prime Minister, Tony Blair] and the Judiciary [Judges] all of which must be given reasonably similar power and communicate with each other to ensure the stable running of government.

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        On the Legislative front, Barnett states that "The Queen in Parliament is the sovereign law making body within the United Kingdom. Formally expressed, parliament compromises the Queen, House of Lords and House of Commons. All Bills must be passed by each house and receive the royal assent." [Barnett, Constitutional and Administrative Law (4th Edition) 2002.]  Parliament has two chambers, although one chamber has more power than the other. These two chambers are the unelected upper house, the House of Lords, and the elected lower house, the House of Commons. The House of Commons has more power than the House of ...

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