Separation of Powers in the UK - Essay Example

Separation of Powers in the UK Introduction Elliot (2001 p. 16) argues that a constitution is not a government act, but an act by the people that constitute a government. He consequently compares a government without a constitution to a power without light. A constitution is a set of fundamental political principles with the basic purpose of controlling the government organs. A number of people criticise the UK constitution because of its uncodified structure. This structure makes it a mix up of court rulings and disseminates statutes enhanced by extra-legal conventions and practices. However, these statutes help in establishing boundaries that ensure the state rulers do not cross and compromise with the states’ basic rights. There is a need for separation of power both philosophically and practically in order to exercise the constitution (Krotoszynski 2011 p. 234). In the UK, the policy of separation of powers involves separating in person and task the principle establishment of state including executive, legislature, and judiciary. This separation of powers helps in safeguarding the tyranny and liberties. This approach means that the three branches have independent power, and none may exercise the other’s powers, and no person can be a member in two branches. Unlike the United States, that closely adheres to a separation of power, in the UK, the powers of the government, Parliament, and the courts tend to remain closely intertwined. It is clear that the executive and legislative powers seem fused. A study by Elliott (2001 p. 26) shows that the implementation of the European laws like the Human Rights Act 1998 continue raising questions on separation of powers in relation to this constitutional change. Some researchers feel that issues decided by the ministers earlier will now have the courts to decide. The executive in the UK includes the Government and the Crown, prime ministers, and the cabinet ministers, and they formulate and implement policy. On the other hand, there is the Crown, House of Commons, and the House of the Lords composing the Legislature. Lastly, the judiciary includes the judges, courts, and the members of staff (Lord Phillips of Worth Maltravers 2011 p. 6). Integration of power in the UK particularly involving the executive and legislature presents effectiveness and constancy. Integration also increases effectiveness above conceptual interest of autocracy. A good example is the Prime Minister leading both the executive branch and directing the lead party in the legislature. This approach gives the executive branch more freedom of action than any president does does enjoy in a government practicing presidential system. In addition, through drafting secondary or delegated legislation, parliament can delegate law-making powers to the government. This practice liberates the parliament from analysing small technical particulars, and maintains the protection of parliamentary approval. In addition, Vernon (2006 p.42) argues that the executive’s presence in parliament sometimes enhances the scrutiny as long as they follow the right procedures. A good example is during question time, which can be a powerful procedure that sees the minister thrown right to the legislature. The common law plays a vital role in developing the constitutional law, while setting precedence that is still in practice. During the wartime destruction, the war Damage Act in Burmah Oil Parliament saw the overriding of the House of Lord for compensation. This scenario represents a parliamentary supremacy in relation to change of constitution. Another example is the exclusion of Del Roy as a monarch led by Sir Coke from being the judge. After the invasion, the kings had no authority to give verdicts in regards to administration, and court of justice exclusively resolved the causes. The case of Enrick V Carrington represents the first pillar as earlier mentioned with the secretary of state issuing an unlawful warrant. According to Lord Halifax, the secretary of state had no right to go through a person’s private letters. He argues that if it were lawful then no man would endure living in UK. Gordon Brown, a former Prime Minister, argued that the UK was able to persuade parliament to put the banking reforms through while financing them as a rescue. He noted that the process took much shorter time compared to the Americans who took months due to separation of powers. The House of Commons (Disqualifications) Act 1975 restricted the number of remunerated ministers sitting in the commons in order to stop the executive from scheming parliament. In addition, the legislation government branch has the formal power to dismiss executive officers from office. Recent changes included allocation of debate time as an aspect of executive’s control over the legislature. According to the constitution, the judges remain subordinate to parliament. Dunning asked the courts to fill the legislation gap, and this faced rejection. This rejection saw Lord Simonds comment that it was a naked usurpation of the legislative function under disguised interpretation. In another case, Hunting Act 2004, the House of Lords questioned the relationship between the rule of law and parliamentary sovereignty where constitutional fundamentals seemed at risk. Currently, the UK’s domestic law incorporation of the European community law continues raising questions. Lord Bridge argues that the UK statute may not apply in cases where it conflicts the European Community Act 1972. However, the Human Rights Act 1998 allows the court to rectify the inconsistency in an incompatible statute with the European Convention on Human Rights (Jeffrey & Oliver. 2007 p. 54) Loughlin (2013 p. 6) states that Lord Neuberger argued that the freedom of speech and debate was an absolute privilege, and no court should contravene parliamentary privilege since it was unconstitutional. According to the UK constitution, no one is immune to law. The rule of the law separates into three pillars including state not interfering with personal automatism unless in a breach of the law. In addition, a person should not lawfully suffer, unless during a breach of the law. However, the Anti-terrorism, Crime and Security Act 2009 allows the government to hold suspected terrorists without charge hence contradicts the rule of law on automatism. The second pillar involves equality of the people meaning that no one is above others. However, this approach fails especially in cases where judges remain immune to legal actions as long as they are acting along the jurisdiction. The third pillar is the fact that there are no written laws and constitution codes. This rule results from judicial decisions to determine people’s personal rights in court. The separation of powers and the rule of law stay entangled in the UK. However, the constitution expects the people in power and the legal institutions to carry out intentions fairly and in accordance with the public mandate. There have been personnel overlaps between the judiciary and other organs of state although the Constitutional Reform Act 2005 saw their removal (Loughlin 2013 p. 22). The Supreme Court replaced the functions of the House of Lords, and Lord Chancellor lost his role as the Head of Judiciary in order to strength it on paper. Some judges clearly overstepped the boundaries between creativity interpretation and law making. The executive function seems to have many controls, which is dangerous because the controls in the UK constitution do not seem very effective. The statutory controls lost effects during the Parliamentary Acts of 1911 and 1945. In addition, the democratic restraints seem extremely limited the level of low public participation in elections. Gwyn (1965 p. 37) argues that the separation of powers in the UK is not effective regarding the checks and balances. The judiciary seems to bear the burden with the legislature’s failure to control the powers. Because the executive cannot ignore the legislation, the courts continue attempting in relation to separation of powers. The courts have gone a step further to separate powers related to the political realms. In the case of A and Others V Secretary of state for Home Departments, the court declared the detention without trial, which was contrary to ECHR. In this case, the government’s response intalia was creating control orders. A study by King (2009 p. 46) shows that there are other similar cases including the government’s freezing of terrorist funds and assets, and the courts continue with the trends to date. They have extended the role to ensuring government legalities especially in the National Security, which is a clear change in the defense. Conclusion Many people may argue that UK has no constitution due to its uncodified structure. The courts seem to have more power especially in relation to terrorism, thus protecting the separation of powers. The uncodified constitution seems to empower the executive excessively at the expense of parliament. The separation of power in the UK seems to play a vital role in some cases like the resolving the bank issues. The government feels that integrating some of the powers like the executive and the legislation provides efficiency and stability of the constitution hence the government. However, with a leader who lacks consensus with the conventions and practices, the government may face an unconstitutional dilemma. The Constitutional Reform Act 2005 contributed to a formal separation of power that brought about flexibility in constitutional change. References A and Others v Secretary of State for the Home Department [2004] UKHL 56 HC Deb 26 Jan 2004 : c27 BAGEHOT, (1867). The English Constitution, 67–68 5 ELLIOTT, M. (2001). The Constitutional foundations of judicial review. Oxford, Hart . ELLIOTT, M., & THOMAS, R. (2014). Public law. GWYN, W. B. (1965). The meaning of the separation of powers (The Hague: Martinus Nijhoff, 1965), p 9 JACKSON V HER MAJESTY’S ATTORNEY GENERAL [2005] UKHL 56. For a discussion, see Jeffrey Jowell “Parliamentary sovereignty under the New Constitutional Hypothesis” [2006] Public Law 562 JEFFREY JOWELL AND DAWN OLIVER. (2007). Joint Committee On Human Rights, Sixteenth Report Session 2006–7, Monitoring the Government’s Response to Court Judgments Finding Breaches of Human Rights, HL 128/HC 728, June 2007 KROTOSZYNSKI, RONALD J. (2011). ‘The separation of legislative and executive powers’ in Tom Ginsburg, Rosalind Dixon (eds) Comparative Constitutional Law, Cheltenham: Edward Elgar, p 234 KING, A. (2009). The British constitution. Oxford, Oxford University Press. LORD PHILLIPS OF WORTH MALTRAVERS, (2011) ‘Judicial independence and accountability: a view from the Supreme Court’,Gustave Tuck Lecture, 8 February pp 6– 7 LORD REID,(1983). ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law 22 McLoughlin v OBrian AC 410 LOUGHLIN, M. (2013). The British constitution: a very short introduction. MASTER OF THE ROLLS,(2004). Report of the Committee on Super-Injunctions: super- Injunctions, anonymised injunctions and open justice, p vii. See Library Standard Note 2024 Parliamentary privilege and qualified privilege Ibid, p vii, conclusion 9(i) PROFESSOR BOGDANOR VERNON. (2006). ‘Parliament and the Judiciary: The Problem of Accountability’, speech to the UK Public Administration Consortium ZUCKERMAN,(2010). Super Injunctions—Curiosity-Suppressant Orders Undermine the Rule of Law, C.J.Q. Vol. 29 134. Read More