Principle of Separation of Powers - Assignment Example

Sovereignty Question Introduction UK is one of the members of European Union (EU). The union came into existence after the Second World War to safeguard the Member countries from devastating effects of the war (Unit 6). They aimed at establishing the political, social and economic relationships to rebuild their economies. The Union also formulated laws to safeguard the human rights and establish the structure of governance (Unit 6). Their aim was to protect human rights and equality by ensuring human freedom, dignity, equality, rule of law and human rights. This study examines the sovereignty of the parliament to make laws and the extent to which the Parliament exercises this power. Principle of separation of powers The constitution establishes the three government arms of the government namely the executives, legislature and the judiciary. The legislature is the law-making body, the judiciary implementats and interprets the law while executive is involved with the application of the law (Unit 6). The executive is comprised of prime ministers, cabinet ministers, police forces, civil service, and local authorities. The government initiates legislation process and make policies to govern the country. The government recommends the passing of laws by legislature in order to effect the implementation of government policies. This practice influences the legislation process by presenting an overlap of functions of the legislature and the executive (Unit 8). This implies that the Prime Minister and ministers can influence policy making decision and application of the law on one hand while on the other hand they take part in the law-making process (Macmillan and Co., Ltd., 2005). Therefore, it implies that legislature is not the only body involved in law making process since there is significant influence from the executives. The UK has no written and codified constitution that can be termed as embodying the sovereign authority of the law. However, the Parliament is the highest law-making body in UK with authority to make and unmake the laws (Unit 3). It is neither bound by the decisions of the previous parliaments nor by those of future parliament. The national sovereignty is vested in the citizens who exercise it through their representatives (legislature) and can exercise it through referendum (Unit 6). It emphasizes that no individual or group of individuals can assume the power to exercise such sovereignty. The members of the public have equal right as provided for by the constitution including the right to participate in general elections in order to elect representatives. The constitution also outlines the institutions of the state and the relationship between the state and the individuals (Unit 13). The parliament has constitutional power to give assent to the bills in order to become laws. However, the monarch (crown) exercise prerogative powers under the common law to issue a decree that also forms part of the law (Dicey, 1902). For example, monarch has the power to appoint the prime minister who becomes the leader of the political party with majority representatives in the House of Commons. Also, the monarch has the royal prerogative to give assent to legislations to become laws. In exercise of this prerogative the crown may give or refuse to give assent to the Bill passed by the Parliament. For example, in 1708 Queen Ann refused to assent to Bill enacted by the legislature (Dicey, 1902). The crown does not require the authority of the parliament in order to exercise their supremacy. In exercise of the constitutional power, the crown must act within the confines of their constitutional mandates. As long as they do not act ultra vires when exercising their constitutional powers the decision on the crown forms part of the law (Unit 6). Therefore, the monarch’s decision in exercise of their prerogative powers is recognized as sources of law without involving the national assembly. However, the power of the monarch has eroded away over time and its place has been taken by the government representing the majority political party in the parliament (Unit 6). The elected government exercises the prerogative powers in the name of the monarch. The Prime Minister exercises prerogative powers either in their own capacity or by giving advice to the Queen according to the consitution (Unit 8). The powers include pardoning the offenders, summoning the parliament, appointing ministers, declaring wars and/ or peace, the power to form treaties, etc. However, implementation of prerogative powers does not require the approval of the national assembly hence not all laws are made by the parliament (Unit 9). The principles of UK constitution provide the constitutional framework such as the rule of law, the sovereignty of the national assembly and separation of powers (Unit 6). The process of amending the constitution is slow in order to give the citizens an opportunity to reflect on the effect of the amendment and avoid making illogical alterations of law. The procedure for making these amendments is usually difficult to implement, and only the parliament can determine when and how to make the amendments (Unit 3). However, the national assembly has no power to amend conventions. Conventions can change gradually as they become acceptable in the society and respond to cultural changes. For example in case the citizens decide that the prime minister does no longer have to be a member of the main political party in the House of Commons as is the current position of the constitutional convention this convention will change because it is acceptable by the electorates (Unit 5). This makes the UK constitution responsive and adaptive to the social changes. Therefore, even though conventions are part of the constitution they cannot be amended by the national assembly as the changes occur naturally in response to wishes of the electorate. Although constitutional conventions are recognized as understandings, habits or practices that may control the conducts of various members of the sovereign power they cannot be enforced by the court hence in real sense they are not laws (Unit 3). An example of constitution conventions is the one that states that the Prime Minister must be a member of the House of Commons. Another one is the one that requires all persons holding public offices such as the Prime Minister and the ministers to uphold the constitution, the convention that the state ministers are individually and collectively responsible for their actions. The ministers can be individually accountable for their failure in their respective departments while they are collectively responsible to their membership of the cabinet (Unit 8). The consequences of failure by the ministers are the ultimate resignation or removal from their office. For example, in 1954 Sir Thomas Dugdale the then Minister for Agriculture resigned because he was personally held accountable for mismanaging his department. On the other hand, the state ministers are expected to speak positively about the government that they represent and promote stable and functioning government. In case they fail to do so they can be compelled to leave the office, or otherwise they be relinquished of their powers (Macmillan and Co., Ltd., 2005). However, it is worth noting that in case of breach of constitutional conventions there is no court action hence only the Prime Minister can demand the resignation of a minister. The breach may attract sabotage to re-elect the political parties, public protests and social disorders with the intention to create political pressure to compel the minister to take his or her responsibility (Unit 8). Although conventions cannot be enforced in the court of law, nevertheless they form a significant part of the UK’s constitution framework. In addition, conventions get significant backing from the constitutional principles. The constitutional statutes are the uncodified constitution of UK which is Acts of the Parliament. For example, the Bill of Rights 1706, the Act of Union with Wales 1689, Parliament Act 1918, Union with Ireland 1852, Reform Acts 1911, Human Rights Act 1998, Scotland Acts 1998, Government of Wales Act 1999, Greater London Act 2000, Freedom of Information Act 2005, Constitutional Reform Act 2006, Government of Wales Act 2009 and Supreme Court Act among other Acts (Unit 5). The constitutional statutes are intended to provide a stable constitutional framework. Therefore, not all Acts of the Parliament are recognized as constitutional statutes. The parliamentary sovereignty grants Parliament the supremacy to repeal in order to amend the law. The parliament can enact a new law in order to repeal the previous act in case of ordinary laws. However, if the issue involves constitutional statutes such as Government of Wales Act or European Communities Act this cannot be achieved through a repeal of the Act (Unit 5). A more substantive process may have to be involved that includes a wider representation of the views of the electorates (Unit 6). A recent example is the case was debate about the UK’s membership of the EU and the devolution process. The UK held a referendum to include the views of the citizens before they took the decision to join the EU and devolve the government functions. The Parliament opted to involve the electorates in constitutional matters as an implication of the seriousness with which the constitutional statutes are created and enacted. Therefore, although the parliament is the supreme law making bodies some more serious matters touching on the constitution statutes must be implemented through majority votes in order to offer the electorates to exercise their voting power as well as protect the constitution from unreasonable alterations (Unit 5). Involving the citizens makes the process of constitutional amendment more tedious and creates time for the citizens to explore all possible effects of the amended laws before they could actually implement the changes. Judiciary is the arm of government responsible for the interpretation of the law in order to give it meaning. Although the legislature is charged with the responsibility of creating laws they may not be able to come up with meaningful laws (Macmillan and Co., Ltd., 2005). For example, they hold elective positions and may not necessarily have the legal capacity to draft the law. Also, the parliament may not have adequate time to discuss all the bills before passing them into law. In order to avoid numerous errors that would lead to delayed interpretation of the law by the court due to various amendments that may be involved, the government hire competent lawyers to draft the bills before presenting them to the parliament for debating (Macmillan and Co., Ltd., 2005). Therefore, the involvement of hired lawyers in drafting of law and recommendations for amendments by the judiciary deprives the parliament of its autonomy as the only law-making body. The judges are mainly at the center of the court case hence they are involved in making of common law. They do so by interpreting the statute or by developing the rule in the absence of the statute. In order to achieve this judges use judicial precedent or application of the previous cases and modifying where appropriate to solve disputes amicably. Another criteria used by judges is the application of the legal principle that were previously established and apply them in the fact before them (Unit 13). For example, in the case of Broome v Cassell [1971] 2 QB 254, Lord Denning persuaded the appellate judges to divert from the decision made in a similar case of Rookes v Barnard [1964] AC 1129 on sis that the decision in the latter case was made per incuriam. The use of judicial principle has offered flexibility for varying the law in accordance with the case at hand. These modifications do not require the assent of the Parliament. As observed in the case of Donoghue v Stevenson [1932] AC 562, judges exercise some liberty and use logical reasoning when deciding on various cases. The application of law must protect the human rights and ensure equality for all citizens in order to achieve the goals of EU. Civil laws are also recognized as a source of law in UK. However, civil laws such as the law of tort have been developed through case law (Unit 5). The judiciary gradually develops civil laws such as the tort of negligence that are accepted as sources of law in UK. These laws are made without the approval of the national assembly hence it can be argued that the parliament is not the sole source of laws in UK. In summary, Parliament has the supremacy of making law in UK. It enjoys the sovereignty as the people’s representative to ensure equality for all and protect the rights of the citizens. However, Monarch enjoys the prerogative powers to make certain legal decisions without the approval of the parliament. There is an overlap of powers between judiciary, executives and legislature which results in the influence of law making the decision of the legislature. Furthermore, judges have the liberty to interpret the law and recommend changes that can influence the autonomy of legislature. Question 2 The completion of this assignment involved various approaches. The first approach was to examine the formation of the European Union and intention of the union. The Union aimed at protecting the rights of the citizens and empowering them socially, politically and economically. However, in order to ensure the rights are protected adequately the EU had to come up with laws defining rights and powers of the government structure (Unit 9). The law gives powers to various organs to perform their functions. The assignment focuses on functions of various arms of the government as far as law making is concerned. Another focus was on how various organs interact with each other. This process provides information on how the parliament is implementing its mandates of law making (Unit 9). Furthermore, it examines the functions of the judiciary to establish how they protect the rights of the citizens through interpretation and application of the law. Where necessary judiciary will recommend an amendment to ensure the rights of the citizens are not violated. The study examined sources of civil laws as part of the laws of the UK. Also, it examines the power of judges to make decision based on study of case laws. However where the court is convinced the previous judges acted unfairly they can divert from previous ruling as guided by the principle of the rule of law. To achieve the learning objective, I did follow the instructions step by step and obtained specific information that relates to expected outcome. Bibliography Broome v Cassell [1971] 2 QB 254 Dicey, A.V. (1902) Introduction to the Study of the Law of the Constitution, 6th ed, London, Donoghue v Stevenson [1932] AC 562 Unit 3: The UK constitution Unit 5: How statute is interpreted and applied Unit 6: Sources of law — common law Unit 8: An introduction to the European Union Unit 9: Human rights Unit 13: Judicial reasoning and politics Rookes v Barnard [1964] AC 1129 Macmillan and Co., Ltd., 2005, Adamant Media Corporation, (facs, edn). pp. 37–8. Read More