The Doctrine of Separation of Powers - Report Example

The Doctrine of Separation of Powers Number Department Introduction Some argue that the separation of powers doctrine is firmly established in the UK Constitution and no further reform is needed in regards to this doctrine. Separation of Powers refers to a political theory and model of governance where the state is split into branches, with every branch being separate, autonomous and having independent powers and sphere of responsibility. In modern day democracies, the branches that make the divisions of the state are three: the legislature, the judiciary and the executive and it is for this reason that separation of powers is synonymously referred to as trias politica1. The entrenchment of separation in the UK constitution is a reality so that some argue that it is needless to make reforms to strengthen trias politica. However, I oppose this argument on several accounts, as shall be seen in the ensuing discourse. The UK Parliament held its parliamentary sovereignty until 19722. Because of parliamentary sovereignty, the UK parliament has always enjoyed sovereignty over four elements: the ability of parliament to introduce the laws it deems expedient; the inability of parliament to bind future parliaments; the ability or authority of parliament to make laws which have superiority over other forms of parliament; the mandate of the courts to use and apply laws that Parliament has made. So strong was this provision that the only checks against the sovereignty of parliament were the media, political activism and public pressure. This was in total contrast to other democracies where the Bill of Rights was left to the courts so that the courts could perpetuate them above those that have been accorded for in Parliament. This state of affairs above explains the extent to which the sovereignty of the UK Parliament was treated as sacrosanct. However, in as much as the autonomy of the UK Parliament seemed to be good and beneficial, the dynamics of international and domestic politics seem to render constitutional reforms expedient. Particularly, matters changed and the UK Parliament had to amend the constitution to fine-tune the operations and powers of parliament when the United Kingdom became part of the European Union (EU)3. What informed this decision is the fact that by joining the EU, the UK Parliament had handed over its sovereignty to Europe. The laws of the EU assumed precedence over UK’s and other states’ Acts of Parliament. Nevertheless, it is also true that in legal matters that fell outside the EU Law, UK Parliament realizes back its supremacy and autonomy4. This state of affairs is exemplified when UK Parliament resumed its autonomy and sovereignty in light of the European Convention on Human Rights, upon the introduction of the Human Rights Act of 19985. Therefore, to argue that because the UK Constitution totally and explicitly captured the doctrine of separation of powers so that there is no need for constitutional amendments is to advance an error. The error in this case is the failure to appreciate the fact that politics comprises both domestic and international affairs6. Constitutional amendments have been made over the last ten years, in order to: bolster the checks and balances; and to eradicate any room for abuse of powers. This development saw the passing and ratification of the Constitutional Reforms Act 2005 (the Act) and is a culmination of the efforts that had been exerted by William Hague as the opposition leaders of the time and Gordon Brown, the immediate former Prime Minister. In this Act, the separation of powers is strengthened by having the functions, powers and responsibilities of the Lord Chancellor modified, with the ultimate intention of having provisions relating to his office functions more elaborate. Resultantly, the Lord Chancellor’s role radically changed so that the occupant of this office can either come from the House of Commons or Lords7. The UK began to realise judicial independence as was enshrined in the UK constitution for the first time. Other key reforms that were made are: the allowing of ministers duty to uphold and safeguard the independence and autonomy of the judiciary; introduction of the office of the Lord Chief Justice; the enshrining in the constitution and the introduction of the new independent Supreme Court which has its own unique and separate system of appointment; and the introduction and constitutionalisation of a budget and separate and exclusive building and premises which also abolish the appellate jurisdiction of the Law Lords or the House of Lords8. The Act specified that starting from 2009 onwards, the House of Lord’s Appellate Committee was to be transferred to the Supreme Court9. The Supreme Court was to be made up of the twelve Justices sitting in the Supreme Court10. The Supreme Court judges are to neither sit nor vote in the House of Lords or ascend to the House of Commons as long as the transfer of the judges’ functions and personnel have not been brought into effect. To this effect, the appointments to the British and the rest of the UK Supreme Courts are made by the monarch at the advice of the British Prime Minister11. The selection process takes place before the submission of nominations for royal approval. Again, the selection process is conducted by an ad hoc Selection Commission which consists of five officers. Senior judicial officers are to help the Lord Chief Justice as part of the commission. The proposals that the commission makes are then relayed to the Lord Chancellor who: mentions the names to the Premier; may decline the names presented if the candidate is deemed unsuitable; or may require the Commission’s further consideration and review12. The Act was the rationale behind assigning the doctrine of separation of powers legal and practical operations more effect and clarity. The Act sought to distinguish the functions that are to be discharged by the staff serving in the House of Lords, the legislature and the judiciary. To ensure that this took its course, it was created for the Supreme Court in the UK to replace the House of Lords’ Appellate Committee by ejecting from the judicial process, the Lord Chancellor13. Prior to the passage of the Act the Lord Chancellor, the head of the judiciary and the Speaker of the House of Lords were political appointees, as members of the cabinet14. The Lord Chancellor was mandated to take part in judicial proceedings as the senior judge, though he was not allowed to adjudicate over cases that were political in nature or cases that involved the government as a senior judge. This state of affairs undermined the independence of the judiciary and the legislature, especially since the Lord Chancellor had the right to appoint all the judges15. This affair above was opposed to the doctrine of Separation of Powers since the Lord Chancellor played roles that pertained to all the three state organs until the Act removed the Lord Chancellor from office for the Lord Chief Justice16. To this extent, the Act also provided that the House of Lords would from then henceforth elect its own speakers from among its members. References Bateman, Will. Legislating against constitutional invalidity: constitutional deeming legislation, 34 SLR [2012] 4, 721 Cameron, A. Maxwell and Falleti, G. Tulia. Federalism and the Subnational Separation of Powers. 35 Publius [2005] 2, 245 – 271 Congleton, Roger D. On the inevitability of divided government and improbability of a complete separation of powers. 24 CPE [2013] 3,177 - 198 Conway, Gerard. Recovering a Separation of Powers in the European Union. 17 ELJ [2011] 3, 304 - 322 FIKFAK, Veronika. International Law before English and Asian Courts: Finding the Judicial Role in the Separation of Powers. 3 AJIL [2013] 2, 271 Fox-Decent, Evan. Contextual constitutionalism after the UK Human Rights Act 1998. 62 UTLJ [2012] 1,133 - 150 Hazell, Robert. The Continuing Dynamism of Constitutional Reform. 60 PA [2007] 1, 3 Hicks, M. Bruce. Advice to the minister of democratic reform: Senate reform, constitutional amendments, fixed election dates, and a Cabinet Manual, 21 C.F. [2012] 2, 23 Johnston, Angus and Nanopoulos, Eva. The New UK Supreme Court, the Separation of Powers and Anti-Terrorism Measures, 69 CLJ [2010] 2, 217 – 220 Laborde, Cécile. Political Liberalism and Religion: On Separation and Establishment. 21 JPP [2013] 1, 67 - 86 Masterman, Roger. Juridification, Sovereignty and Separation of Powers. 62 PA [2009] 3, 499 – 502 Morauta, James. Three Separation Theses. 23 LP [2004] 2, 111 - 135 Saporiti, Alejandro and Streb, Jorge M. Separation of Powers and Political Budget Cycles. 137 PC [2008] 1/2, 329 – 345 Tropina, Tatiana and Whalley, Jason. Functional separation within the European Union: debates and challenges. 27 TI [2010] 3, 231 – 241 Tushnet, Mark. The political constitution of emergency powers: parliamentary and separation-of-powers regulation. 3 IJLIC [2007] 4, 275 – 288 Walker, Robert. The New Supreme Court and other Changes in the Justice System; New Supreme Court and Changes in the Justice System; Lord Robert Walker. 6 LIM [2006] 4, 292 Read More