The Separation of Powers in The UK - Essay Example

The Separation of Powers in The UK The theoretical for justification for the separation of powers centres on its fundamental importance to the operation of democracy and assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.1” In the UK, the doctrine of the separation of powers has traditionally been limited and criticised for being somewhat unclear in comparison to other democracies2. Nevertheless, Barnett argues that “Separation of powers…… runs like a thread throughout the constitution of the United Kingdom3.” However, in the UK there has not been a clear separation of the branches of the state4, but rather a fusion. For example, the executive clearly carries out legislative functions and a prime example is the Law Commission. Additionally, the judiciary obtain their power from the Crown and there is a distinct overlap of functions between the powers, which should be under the separation of powers doctrine5. This obfuscation of the theoretical separation of powers has ramifications for the procedure of passing Acts of Parliament. Parliament is essentially the legislative section of the British political system. As such, through the executive Prime Minister and the Cabinet, Parliament sanctions executive sovereignty in a party governmental system. Theoretically Parliament is a policy influencing body, relying on the executive to formulate policy and reacts to it and therefore the party machine reinforces power of the executive to initiate policy. Parliament is not therefore involved in the policy making process and has minor powers of initiation. Whilst government controls Parliament the passing of an Act of Parliament ultimately depends on control, possession of majority, loyal voting from supporters, the curtailing of debate and the control of drafting. This undermines the symbolic purpose of Parliament as a check on the executive. To address these inefficiencies in the constitutional notion of a separation of powers, the Government implemented the Constitutional Reform Act 2005 (the Act). The Act introduced provisions for modifying the office and functions of the Lord Chancellor in addition to the issue of determining new judicial appointments. It also provided for a Supreme Court of the United Kingdom to replace the current role of Law Lords. These provisions have far reaching constitutional implications and impact the relationship between the Executive, Legislative and the Judiciary powers in the United Kingdom where the demarcation of the separation of power has traditionally been blurred. The focus of this analysis is to undertake a critical analysis of how far the UK system implements the constitutional convention of the separation of powers. In doing so, it is submitted that a contextual discussion of the reforms implemented by the Act is vital. Montesquieu asserts the necessity for separation of powers as follows6“again, there is no liberty if the power of judging is not separated from the legislative and the executive7”. However, the fusion of the Executive and Legislative has undermined the democratic ideal of separation. Nowhere was this more evident than the fusion between Executive and Legislative, where the Executive is drawn from the Legislative, indeed from the leadership of the majority party in Parliament8. Furthermore, the Executive actually sit as members of the central legislative body of the House of Commons, effectively resulting in Executive domination of Parliament.9 This is further compounded by the fact that as regards Parliamentary sovereignty, constitutional convention dictates that Parliament has ultimate authority over all affairs of government10, which again undermines the separation of powers. Moreover, the concept of law reform is often intertwined with policy in practice and reacts to social, political and economic factors. Indeed Eddey & Darbyshire comment that “New Governments want to make their mark11” and a government with a significant majority has a greater chance of pushing their bill through Parliament, which undermines the essential objective of transparent law reform. A Parliamentary bill has three stages namely; initiation, formulation and implementation. If the most relevant MPs are likely to support the bill, then the second part is Parliamentary formulation and drafting, which is often according to how government want it to appear on statute. At this stage, MPs have little or no influence. As such, whilst Parliament is a public arena and supposed to justify its bills, there appears to be little difference in the bill during the various stages through Parliament, with an often assured passage. This is further highlighted by the affect of the Parliament Acts of 1911 and 1949. The Parliament Act 1911 highlighted the supremacy of the House of Commons by limiting the suspensory veto powers of the House of Lords. As such, provided the provisions of the Parliament Acts are complied with; legislation can effectively be passed without the approval of the House of Lords. Additionally, the Parliament Act 1949 further reduced the House of Lords’ power through limiting the timeframe within which it could delay bills from two years to one. Moreover, the Lord Chancellor’s role is symbolic of the UK’s uneasy relationship with any notion of separation of powers. The Lord Chancellor’s role was multifarious, ranging from minister,12 Law Lord, head of judiciary13 and a member of the House of Lords in its legislative capacity14. Accordingly, “the traditional British disregard for the separation of powers was personified by the Lord Chancellor”.15 Furthermore, the presence and role of Law Lords in the House of Lords questioned the practically applicability of the separation of powers. By virtue of convention, Law Lords hear appeals and the Supreme Court of Judicature Act 1875 confirmed the role of the House of Lords as the highest jurisdictional body for appeal. This duality of purpose of the House of Lords as Legislature and Judiciary clearly supported Lloyd of Berwick’s assertions that “we do not in this country have what is often referred to as the separation of Powers”.16 Indeed, it was precisely this role of the House of Lords that motivated the creation of the Supreme Court. This was expressly acknowledged by John Major’s response on the Modernisation of Parliament17 where he asserted that “the main reform we need to change is the relationship between Parliament and the Executive18”. The Lord Chancellor’s role was an instrumental driver behind the Act, the aim of which was to assert the separation of powers as an integral part of the British constitution19. The Act intended to address this conflict and as Lord Falconer asserted the “overall aim…. is to put the relationship between the Executive, Legislative and Judiciary on a modern footing, respecting the Separation of Powers between the three20”. As mentioned above, the significant constitutional change is to the role of Lord Chancellor, with functions of the Speaker of the House of Lords and head of judiciary being removed from the office of the Lord Chancellor. Although this curtail in power undoubtedly constitutes a significant improvement as far as the separation of powers in the UK, it remains to be seen how significant this will be as a “constitutional shake up” in light of the potential shortcomings of the new Judicial Commission. The other significant change resulting from the Act is the creation of the new Supreme Court of the United Kingdom. In accordance with this reform, the judicial function of the House of Lords is transferred to a new Supreme Court. Under the Supreme Court the House of Lords were required to move out of the Palace of Westminster into a building separate to the Houses of Parliament, where the House of Lords previously exercised its judicial functions. Accordingly, in light of the fact that the new Supreme Court does not have legislative ability, it will hear cases on the basis of the new law and in theory should be removed from political motivations in judicial law making. Therefore the creation of the new Supreme Court of the United Kingdom is symbolically of fundamental importance whereby the judicial function of the House of Lords is transferred to a new Supreme Court. In accordance with this reform, the judicial function of the House of Lords is transferred to a new Supreme Court. Under the Supreme Court the House of Lords were required to move out of the Palace of Westminster into a building separate to the Houses of Parliament, where the House of Lords previously exercised its judicial functions. Accordingly, in light of the fact that the new Supreme Court does not have legislative ability, it will hear cases on the basis of the new law and in theory should be removed from political motivations in judicial law making. The Supreme Court opened on 1 October 2009 and is certainly welcome in transferring judicial duties outside the legislature carrying “a badge of independence and neutrality21”, thereby rendering the notion of independence a closer reality. However, the new court is in Parliament Square, Westminster22 and this begs the question as to whether the close proximity to Parliament compromises the intended role of the Supreme Court as preserving separation of powers within the British Constitution. To this end, Lord Neuberger’s contention is that whilst the Supreme Court appears to be a good idea in theory, the Act fails to address the parameters of its powers23. This in turn lends itself to the Court going beyond the powers of the House of Lords committee it replaces and thereby operating is a fundamental opposition to government power, which the Act fails to address. Ultimately, it remains to been how far the Supreme Court’s powers will grow, however on the other hand it is submitted that concerns about a “too powerful” Supreme Court may be premature particularly in light of the Act’s introduction of the Judicial Appointments Commission (“the Commission”), which is now responsible for selecting judges in England and Wales. However, the Commission’s presiding Chairman is the Right Honourable Baroness Prashar CBE, who is a member of the House of Lords, which raises the same potential problems of fusion of powers discussed above. Furthermore some critics have highlighted other shortcomings of the Act in improving the separation of powers. A. Le Sueur comments as an initial observation that these reforms are robust and lack precision24. As such, Le Sueur argues that this lack of clarity weakens the constitutional basis for the provisions. The inherent difficulty in any “constitutional” reform in the UK is that due to the lack of a written constitution, it is arguable that any such provisions lack constitutional basis25. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary26. This reasoning suggests therefore that the lack of precise definition regarding boundaries of judicial power, it is effectively impossible to change their powers through constitutional reform27, which again undermines separation of powers. A further lacuna in the Act is the failure to address the “channels of communication” between the three organs of state and in particular the relationship between the judiciary vis-à-vis Parliament and the Executive28. The boundaries, extent and nature of formal communications between the three organs are not addressed anywhere in the Act. Conversely, the concept of the separation of powers implies a principle that the powers of each body should be held accountable to others however this is weakened by the Act’s silence on formal channels of communication between the three29. Therefore, whilst the Act is clearly a welcome move in recognising the need for the UK to redress the inconsistencies and internal contradictions in the previous application of the separation of powers, the lack of a written constitution inherently makes any “constitutional” law reform problematic however the importance of the Act in recognising the need to preserve separation of powers must not be undervalued. Nevertheless, it is submitted that the Act raises issues as to whether Britain needs a wider debate on its constitution in general before it can move forward with an adequate application of the separation of powers. Bibliography H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. Penny Darbyshire, & K.J. Eddey., Eddey and Darbyshire on the English Legal System. (7th Edition Sweet & Maxwell 2002). A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). Rebecca Huxley-Binns., & Jacqueline Martin(2005). Unlocking the English Legal System Hodder Arnold. A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Leyland., & Papworth (2006) Textbook on Administrative Law. Oxford University Press. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Montesquieu., “The Spirit of Laws” (1748) reported (2002) Prometheus Books, pp.19-28. Lord Steyn in Ministerial Speech, Constitutional reform: strengthening democracy and rights (2004). Le Sueur., A., (2005). Judicial Power in the Changing Constitutions: In Jowell & Olive )(Eds.). The Changing Constitution, Chapter 13. H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Lord Woolf., (2005). Singapore Academy of Law A, Constitutional Protection without a Written Constitution. Lord Woolf., “The Rule of Law and a Change in the Constitution”. (2004) 63 (2) Cambridge Law Journal. D Woodhouse., “The Office of Lord Chancellor” (1998), Public Law p.607. Legislation Constitutional Reform Act 2005 Law Commission Act 1965 Parliament Act 1911 Parliament Act 1949 Supreme Court of Judicature Act 1875 European Convention on Human Rights. Read More