The Separation of Powers - Essay Example

Topic: The Separation of Powers Style: MLA Language Style: English (U.K Pages: 10 Answer: The separation of powers is constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. It is a doctrine, which is fundamental to the organisation of a state-and to the concept of constitutionalism - in so far as it prescribes the appropriate allocation of powers, and the limits of those powers, to differing institutions. In any state, three essential bodies exist: the executive, the legislature and the judiciary1 [Constitutional and Administrative Law Pg 105] . The essence of the doctrine is that government power should not all be concentrated in the hands of one person or body. The legislative or law-making function, which is the enactment of rules for the society. The executive or law-applying function, which covers actions taken to maintain or implement the law, defend he state, conduct external affairs and administer internal policies. Finally came the judicial or law enforcing function, which is the determining of civil disputes and the publishing of criminals by deciding issues of fact and applying the law. The three functions of government should be carried out by separate persons or bodies and that each branch of government should only carry out its own function. For instance, the legislature, executive and judicial branches should have equal status so each could control the excessive use of power by another branch2[Constitutional and Administrative Law Pg 105]. The doctrine of separation of powers has been attributed to Aristotle3. However, the clearest exposition of the doctrine can be found in the France writer Baron de Montesquieu's De L'Esprit des Lois (The Spirit of the Laws) [1952]. In order to answer this question it is necessary to discuss about the executive, the legislature and the judiciary, the relationship between executive and legislature, legislature and judiciary; executive and judiciary. To attempt to answer this question it is also necessary to discuss the effect of the Constitutional Reform Act 2005 upon the separation of powers. The Constitutional Reform Act 2005 which received Royal Assent on 24 March 2005. The Constitutional Reform Act modifies the office of Lord Chancellor and makes changes to the way in which some of the functions vested in that office are to be exercised. Part 2 of this Act modifies the office of Lord Chancellor and provides for the future exercise of certain functions of that office and for continued judicial independence4. [Constitutional and Administrative Law Pg 109] The Executive: The Executive may be defined as that branch of the state which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of executive. The Prime Minister, Cabinet and other ministers, for the most part, are elected Members of Parliament. In addition, the Civil Service, local authorities, police and armed forces, constitute the executive in practical terms. The legislature: The Queen of the parliament is the sovereign law making body within the United Kingdom. Formally expressed, parliament comprises the Queen, the HL and House of Commons. Parliament is bicameral, that is to say there are two chambers, each exercising a legislative role-although not having equal powers-and each playing a part in ensuring the accountability of the government. The judiciary: The judiciary is that branch of the state which adjudicates upon conflicts between state institutions, between state and individual, and between individuals. The judiciary is independent of both parliament and the executive. It is the prime feature of judicial independence which is of prime importance both in relation to government according to law and in the protection of liberty of the citizen against the executive. As Blackstone observed in his Commentaries that the administration of common justice be in some degree separated both from the legislative and from the executive power. [Constitutional and Administrative Law Pg 107] On the other hand, the US Constitution is perhaps the most prominent example of how this works in exercise. Like UK there are three functions of government: executive to promulgate laws and oversee administration of the state; legislature to make laws and scrutinize the executive's work; judiciary to apply and interpret the laws of the land. These theories were adopted and developed by James Madison and incorporated in to the Constitution of the USA in 1987, which still remains a classic example of an attempt in implement the separation of powers. It is clear that the types of constitutional control by checks and balances differ in different constitutions5. [Studies in Constitutional Law Pg 35] It is necessary to evaluate the manner and extent to which separate functions are allocated between the differing bodies and kept separate. The relationship between the executive and legislature: It is argued that although all members of the executive, government ministers, are also members of the legislature, these two groups are not identical. There are just over a hundred ministers, but they are greatly outnumbered by 'ordinary' members of the legislature amongst the 659 MPs and 700 or so lords. The executive does not have complete control over the legislature, as even MPs of the governing party do not always do as they are told. The legislature can also hold the executive to account by means of debate, oral and written questions and the system of select committees. Now the question arise to what extent the same persons or bodies form part of both the executive and legislature. Parliament provides the personnel of government, minister of the Crown, including prime Minister, must be members of either House of parliament. Lord Hailsham, the Lord chancellor in the 1979-87 parliament asserted that the current electoral process which generally but not invariably, returns a government with a large majority of seats in parliament, contributes to what extent he termed an 'elective dictatorship' that is to say, a situation in which the executive controls the legislature. Procedural mechanisms of parliament avoid an actual or potential abuse of power by the executive6. [Constitutional Law of the European Union] The House of Commons Disqualification Act 1975 preserves the separation of powers between the executive and legislature by providing that certain categories of people are disqualified from holding parliamentary office7.[Constitutional and Administrative Law Pg 121] The government irrespective of the size of its majority of seats in parliament is dependent upon parliament for its continuance in office. The loss of a vote of confidence on a matter of a policy control to a government's programme will cause the government to fall, as occurred in 1979 when the Labour Prime Minister, Mr James Callaghan, was forced to seek dissolution of parliament and call a general election. Question time and debates in parliament ensure the accountability of government to parliament. The administration of the state is scrutinised by a system of Select Committees in parliament with wide powers of inquiry. In addition to checks within the House of Commons, the House of Lords may cause has the power to amend and delay non Money Bills for approximately a year before the Bill can receive the royal assent under the Parliament Acts 1911 and 1949. Finally, the electorate, in edition to its role in a general election, can also express its displeasure with government policies during a parliamentary term at by-lections and local government elections8. [[Constitutional and Administrative law] Delegated legislation or secondary legislation rises important relating to the separation of powers. The principle justification for the delegation of such law making power is efficiency. In any parliamentary year, some 60 to 70 Acts of Parliament will be passed. The volume of delegated legislation, however, may amount to some 2000 statutory instruments per year9. [The Court of Justice and the Legal System] The implication of delegated legislation in constitutional terms is that a legislative function being exercised by the executive and not parliament. The delegation of law making power is a necessity given the heavy legislative programme and the modern complexity of legal regulation. Parliament may delegate lawmaking powers to the government through powers to draft subordinate or delegated legislation. The purpose of this is to free Parliament from the need to scrutinise every technical rule contained in legislation and to enable the government to draft the detailed rules. It is however raise question about the separation of powers between the executive and legislature10. [The Court of Justice and the Legal System] The relationship between the legislature and judiciary: It has been accepted that judges filled the gaps left by rulers, by using their discretion11. Austin accepted the efficacy of legislation by judges and he said: "I cannot understand how any person who had considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator." Parliament is the supreme law making body and judges interpret legislation. Judiciary is subordinate to parliament. Constitutionally they have no power to question the validity of legislation (Pickin v British Railway12). Judges duty is to interpret statute and this raises the question of whether they make law. The Human Rights Act imposes a duty on the judges to interpret legislation as far as possible in a manner to make it compatible with Convention rights and where it is not possible they will issue a "declaration of incompatibility" but cannot declare an Act of Parliament invalid. The effect of this is to preserve both the supremacy of Parliament and also the separation of powers. The development of common law also raises the issue of judicial law making. In Burmah Oil v Lord13 Advocate, the government being dismayed at the implications of the House of Lords' decision passed an Act to nullify the decision retrospectively .However, in Pepper v Hart the House of Lords concedes the limited right to resort to Hansard as an aid to interpretation. However, it should be remember that Parliament may at any time overturn a judicial decision thereby preserving its sovereignty. Compare this with Donaldson MR in R v H.M. Treasury ex prate Smedley14 held "It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so. ..." The main desire of the courts is to give effect to the doctrine of the Parliamentary Sovereignty and to interpret the rule of Parliament. Therefore, any decision that a court makes can be changed or undone either for the future or even retrospectively. After adopting the HRA 1998 and The European Communities Act 1972, the courts now have the power to interpret statutes in a manner compatible with the Act or if that is not possible to recommend that Parliament change the legislation15. [Constitutional Law of the European Union] The relationship between the executive and judiciary: Judicial independence from government is a key requirement of the separation of powers. The judicial function is to interpret Parliament's intention as expressed in legislation and to ensure through judicial review that any delegated legislation is consistent with the scope of power granted by parliament. The rule of law requires that judges ensure the legality of government action and this function could not be fulfilled if the judges 'independence was in doubt. In M v Home Office16 the judges impose self restraint on the areas of power which they regard themselves as competent to review. In order to protect judicial independence and appropriate separation of powers the judges will rule that such matters are for the executive to decide (Council of Civil Service Unions v Minister for the Civil Service 1985). [In Search of a Theory of State Liability in the European Union] Before the Constitutional Reform Act 2005, the office of the Lord Chancellor spans the major institutions of the state. He is head of the judiciary with responsibilities for the appointment of judges, and is formally recognized as President. He appoints magistrates and may also refer matters to the Law Commission for investigation. He is a member of the executive arm of the government and also a senior member of the cabinet and as such may be dismissed by the Prime Minister. The Lord Chancellor also presides over the House of Lords as its speaker, thereby fulfilling a legislative role. As a member of cabinet, when acting in his capacity as a government spoke man and as a head of the House of Lords the Lord Chancellor cannot be a politically impartial figure. That's why the role of the Lord Chancellor is frequently criticised as violating the separation of powers and concentrating executive, judicial and parliamentary functions in one person. It is by convention that the Lord Chancellor will not exercise powers where the matter is involved with the government or where it is political in nature. In a very recent case of McGonnell v United Kingdom17, where the court ruled that the right of fair trial was violated by the participation in a planning decision of the Deputy Bailiff of Guernsey who was both a senior judge in the Guernsey Royal Court and a senior judge I the Guernsey Royal Court. In a Scottish case Starrs v Procurator Fiscal18, where the court held that the independence of the judiciary was impaired and hence the right of fair trial violated. 19. [Constitutional Law of the European Union, Longman] The Constitutional Reform Act 2005 imposes a duty on government ministers to uphold the independence of the judiciary and also reforms the post of Lord Chancellor. He is no longer a judge or head of the judiciary. His judicial functions are transferred to the President and he will be responsible for the training, guidance and deployment of judges and also represent the views of the judiciary. With a new independent appointment system this act establishes a new independent Supreme Court separate from the House of Lords. In order to recommending candidates for judicial appointment to the Secretary of State for Constitutional Affairs this act will establish an independent commission which will ensure the openness and transparency of the appointment system. The Lord Chancellor continues to be the government minister responsible for the judiciary and the courts system. 20[ Constitutional Law of the European Union, Longman] Role of the Lord Chancellor: The Lord Chancellor's role as a Cabinet Minister remains. He continues to be the minister responsible for the judiciary, judicial appointments, the courts and the tribunals. He is also responsible for legal aid and the Legal Services Commission, statute law reform and the Law Commission, public records and the National Archives, the Land Registry and the Northern Ireland Court Service, and the Crown Dependencies. The Lord Chancellor will continue to make appointments to senior military, civic, church and judicial offices with the Queen's authority. 21[ Constitutional Law of the European Union, Longman] The essence of the doctrine is that there should be a clear demarcation in function between the three institutions in order that none should have excessive power and that there should be in place a system of check and balances between the institutions. So it can be seen that the UK is becoming more concerned about the lack of a formal separation of powers in its constitution and is trying to do more to ensure the independence of the judiciary. A full separation of powers looks unlikely; however, as this would require the legislature to be separate from the executive, which would mean totally different way of electing a government and selecting a Prime Minister22. [Constitutional and Administrative Law Pg 125] Though theoretically it easy to say, but practically no one is quite ready for new system. However, the Constitutional Reform Act 2005 enhances the doctrine of the separation of powers that the essence of the doctrine is that there should be a clear demarcation in function between the three institutions in order that none should have excessive power and that there should be in place a system of check and balances between the institutions. Bibliography: 1. Wincott D. (1999) "The Court of Justice and the Legal System" in Cram L et al (eds), Developments in the European Union (Basingstoke: Macmillan) Pg 111-143 2. Hilaire B. (2007) "Constitutional and Administrative Law" (Cavindish Publishing Limited) Pg 105-134 3. Michael T M. (2006) "Administrative Law" (Old Bailey Press) Pg 25-42 4. Lee, I.B, In Search of a Theory of State Liability in the European Union, Harvard Law School, [ISBN 1087 221]. Pg 115-156 5. Munro, C. R. (2003), Studies in Constitutional Law, London Butterworths, [ISBN 040698434] Pg 28-50 6. Douglas- Scott, S. (2007), Constitutional Law of the European Union, Longman [ISBN 0582317177] Read More