Impracticality of Absolute Separation of Powers - Essay Example

IMPRACTICALITY OF ABSOLUTE SEPARATION OF POWERS al Affiliation) Key words: Doctrine of Powers, UK Constitution Introduction The doctrine of absolute separation of powers is not applicable in our present society. For highly developed societies with a democratic system of government, there is bound to be some overlap in terms of the functions that each arm of the government performs. There are a number of criticisms that have been put forward with regards to the impracticality of the doctrine of absolute separation of powers. One of the countries that can provide a good analysis of the impossibility of the separation of powers is the UK (Masterman 2011). A democratic country is composed of many parts of the government- Judiciary, Executive and Parliament. In essence, the government is unified by many branches and the absolute division of powers is not achievable. If the various branches of the government were to be completely separated from other branches in terms of their functions, it would result in backlog and inefficiencies in all the branches. Additionally, it has been argued that the complete demarcation of powers will yield total confusion resulting from the general inefficiencies created by such a system (Haljan 2013). UK Constitution With regards to the UK constitution, a complete separation of powers, where there is no overlap is non-existent. A closer examination of the three arms of government and their functions, reveals that they are exercised by bodies and or persons who use more than one function of their individual branch. According to the UK constitution, there is a big overlap between the Executive, Judiciary and Legislative arms of government (Leeuwen 2010). The UK Constitution requires that the Prime Minister and his cabinet ministers be members of both the Legislature and Executive arms of government. Indeed, there is a close bond between the Judiciary and Executive arms. The cabinet ministers and the PM are members of Parliament and are also counted as constituting the members in the House of Commons. However, the House of Commons Disqualification Act of 1975, limits the number of cabinet ministers who can sit and vote in the House of Commons to 95. Government ministers also determine appeals in disputes resulting from town planning legislation. This means that their functions encompasses not only the executive arm of government, but also the judiciary. There are very many examples of the overlap between the functions of the three arms of government. One of those positions that gives credence to the notion of overlap, is that of the Lord Chancellor. Law Lords sit on the judicial committee relating to the Privy Council, plus they also sit on the appellate committee of the House of Lords. Additionally, they sit on the House of Lords which is a legislative arm of government. They are essentially part of the three arms of government (Brady 2012). The judiciary is composed of every judge in the law courts, encompassing even lay magistrates in the magistrates’ courts and judges with offices in tribunal offices. Judges are tasked with presiding over criminal and civil cases in courts. Additionally, the civil jurisdiction of these courts is in accordance with the Constitution concerning queries that are of public law in nature and civil jurisdiction. However the courts’ functions are not limited to the judiciary and they on occasion conduct minor legislative functions like developing common law principles through statutory rulings In R v Knuller Ltd and Shaw v DPP, the House of Lords decided that there existed a doctrine to corrupt the morals of the public through conspiracy even though there was no precedent at the time in relation to that matter. These case laws help show the powers of the Judiciary in developing new laws by using common law statutes (Leeuwen 2010). Additionally, they govern court procedures and administrative functions. Magistrates are members of both the executive and judiciary, in that they exercise functions that overlap between the judiciary and the executive. Some of their duties like giving licenses, are classified as falling between the two arms of government. According to the UK Constitution, there is no absolute separation of powers. The UK system of governance relies on mechanisms of checks and balances which prevent the different arms of government and their respective personnel from abusing power. Each arm of government acts as an oversight to the other arm. The checks and balances are used to limit any potential abuse of power, by the personnel that are operating within those offices. Bills are approved into law when the House of Lords and the House of Commons agree and then it is assented by the Monarch. However, according to the Parliamentary Acts of Legislature in 1949 and 1919, legislative bills can be assented to law even in the absence of approval from the House of Lords. The Parliamentary Acts dictate that, the members of the House of Lords can only delay the signing of the bill for a period of twelve months (Masterman 2011). The process of making new laws places great emphasis on the interpretation of statutes, because only after a statute has been adequately interpreted, can the intentions of the law be deciphered. This process of interpreting the law is left to the judiciary, who through common law statutes, can add additional information. During the process of making new laws, in their initial stage, members of the judiciary can contribute to the process, since even members outside Parliament can sponsor a bill (Haljan 2013). The overlaps between the arms of government are very clear but their oversight functions provide a balance. The separation of powers ensures that each arm of government is protected from interference from another arm of government, but it’s limited to oversight functions only. Such oversight measures include- the ability of the Prime Minister to advice the Queen on dissolving Parliament, the Lord Chancellor advising the Queen on the appointment of members of the Judiciary, the ability of courts to check whether laws passed by Parliament are genuine, or the ability of Parliament to summon an individual minister to appear before them for accountability purposes (Johnston 2011). Communication is key between the three arms of government in order to ensure the smooth running of the country. Therefore, the situation necessitates cooperation and absolute separation of powers would hinder effective communication between the various branches of government. Furthermore, the purpose of government is serving and upholding the rights of the people, which is impossible when arms of government are conflicting with each other. However, the rights of each arm of government are severely protected as evidenced in Malone v MPC (no 2) [1979] 2 All ER 620 where the rights of the Judiciary are clearly stipulated. The Cabinet, part of the Executive arm of government, is responsible for directing the activities of the departments in Central government, which is constituted of civil servants. The Cabinet is able to control activities of the central government because of their majority numbers in the House of Commons. It enables them to exert influence over the timetable, legislative agenda and business output. Additionally, the government performs legislative duties via regulations contained in statutory instruments (Smartt 2014). The Constitutional Reform Act of 2005, led to the abolishment of the Lord Chancellor position. The Lord Chancellor was the head of the judicial system in Wales and England, the Speaker of the House of Lords and a member of the Cabinet. According to the UK Constitution, the Lord Chancellor was a member of all the arms of government. Therefore his duties overlapped all the three arms of government. The case McGonnell v UK highlighted the need for impartiality and independence. The European Court of Human Rights decide that the Bailiff of Guernsey’s involvement, was in breach of the claimant’s right to a fair trial. This case highlighted the need for separation of powers with regards to the Lord Chancellor, since the bailiff and the Lord Chancellor had similar functions encompassing multiple arms of government (Brady 2012). Additionally, the Human Rights Act of 1998, gives balance between the arms of government by empowering the courts to analyze Acts of every arm of government. However, Parliament still possess the power to override Convention Rights through using very concise language in the Acts of Parliament. A critical analysis of the three arms of government reveals that all the arms of government, though they are intended to be equal, are not. This means that the notion of complete separation of powers is not achievable. Of all the arms of government, the legislature is slightly more superior to the other arms of government because it provides the framework that the entire government operates on. Its supremacy can also be evidenced by the fact that it exerts control over the finances of the country. The ability of any arm government to function properly is hinged on the availability of adequate finances, therefore, the Legislature partially controls all the other arms of government. But as identified earlier, the Judiciary and Executive also oversee the Legislature, like when the Prime Minister advices the Queen to dissolve Parliament, or when the Judiciary oversees Acts of Parliament to ascertain their level of standard (Smartt 2014). Conclusion This leads to the conclusion that absolute separation of powers is not applicable in any of the current modern governments. A government cannot be simplified into independent units. History points to the inability of a government to run smoothly when it adopts a doctrine of complete separation of powers- failed dictatorships and autonomous monarchies. The only way to run a government is through co-operation between all branches of government. It is utterly impractical to format the duties of every arm of government like a mathematical equation. The only way the doctrine of separation of powers can be effective, is if it is in conjunction with checks and balances (Johnston 2011). References Brady A, Proportionality and Deference under the UK Human Rights Act an Institutionally Sensitive Approach (Cambridge: Cambridge University Press 2012) 137 Haljan D, Separating powers international law before national courts (The Hague: T M C Asser Press 2013) 76 Johnston A & Nanopoulos E, The New UK Supreme Court, The Separation Of Powers And Anti-Terrorism Measures: The Cambridge Law Journal [2011] 217-220 Leeuwen L, Separation of powers in theory and practice: An international perspective (Nijmegen, The Netherlands: Wolf Legal 2010) 123 Masterman R, The separation of powers in the contemporary constitution: Judicial competence and independence in the United Kingdom. (Cambridge, UK: Cambridge University Press 2011) 75 Smartt U, Optimize Public Law (Hoboken: Taylor and Francis 2014) 111 R v Knuller Ltd [1973] AC 435 (HL) Shaw v DPP [1961] 2 All ER at 446 [1962] AC 220 McGonnell v UK [2000] ECHR 5 Ecc LJ 491-492 Malone v MPC (no 2) [1979] 2 All ER 620 Read More