The Operation of the Doctrine of the Separation of Powers - Essay Example

How far does the current United Kingdom system demonstrate the operation of the doctrine of the separation of powers? The theoretical for justification for the separation of powers centres on its fundamental importance to the operation of democracy. The principle of separation of powers 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” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely2”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power. With regard to the UK position, the doctrine of the separation of powers has traditionally been limited and criticised for being somewhat unclear in comparison to other democracies3. Nevertheless, it has been commented that the doctrine does in fact influence everyday operations of the executive, legislature and judiciary4 and Barnett argues that “Separation of powers…… runs like a thread throughout the constitution of the United Kingdom5.” Nevertheless, in the UK there has not been a clear separation of the branches of the state6, but rather a fusion. For example, the executive clearly carries out legislative functions and a prime example is the Law Commission. Although the Law Commission Act 1965 clearly requires the Commission to be “independent7” in reviewing law reform, its committee members are appointed by the Lord Chancellor who also grants prior approval to projects that the Law Commission will review. Additionally, the judiciary obtain their power from the Crown and there is a distinct overlap of functions between the powers, which should be separated for the effective application of the separation of powers8. 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 undertook what was propounded as the “biggest constitutional shake up for years9” and asserted determination “to put the relationship between Executive, Legislature and Judiciary on a modern footing, respecting the separation of powers between the three10.” Official debate regarding this pledge culminated in the implementation of the Constitutional Reform Act 2005 (the Act), which was approved by both Houses on March 21, 2005, receiving Royal Assent on 24 March 2005. 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. The classic statement underpinning the necessity for separation of powers was made by Montesquieu:11“Again, there is no liberty if the power of judging is not separated from the legislative and the executive12”. However, as mentioned above, 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 Parliament13. Furthermore, the Executive actually sit as members of the central legislative body of the House of Commons, effectively resulting in Executive domination of Parliament14. This is further compounded by the fact that as regards Parliamentary sovereignty, constitutional convention dictates that Parliament has ultimate authority over all affairs of government15, which again undermines the separation of powers. Moreover, the concept of law reform is often intertwined with policy in practice and is reactive to social, political and economic factors. Indeed Eddey & Darbyshire comment that “New Governments want to make their mark16” 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. This in itself questions the efficacy of law reform shaped by political agendas, which was symbolised by MP David Davis’ dramatic resignation from his seat and attempt to fight a by-election over the issue of Labour’s proposed extension of detention without trial. It had been commented that 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,17 Law Lord, head of judiciary18 and a member of the House of Lords in its legislative capacity19. Accordingly, “the traditional British disregard for the separation of powers was personified by the Lord Chancellor”.20 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 Act are complied with, legislation can effectively be passed without the approval of the House of Lords. Additionally, the Parliament Act 1949 further signified a reduction in the power of the House of Lords by reducing the timeframe within which it could delay bills from two years to one. 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”.21 This was expressly acknowledged by John Major’s response on the Modernisation of Parliament22 where he asserted that “the main reform we need to change is the relationship between Parliament and the Executive, which has become imbalanced over the past 20 years23”. John Major further emphasised the problem of majority reform. 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 constitution24. The other instrumental factor was concern that the historical fusion blurring distinctions between legislature, judiciary and executive was potentially in breach of the European Convention on Human Rights (ECHR). A prime example of potential conflict is the ECHR provision in Article 6 which stipulates that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. 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 three25”. 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. The Supreme Court is again symbolic and certainly welcome in transferring judicial duties outside the legislature carrying “a badge of independence and neutrality26”, thereby rendering the notion of independence a closer reality. However, it is understood that after lengthy consideration, the new court will preside at Middlesex Guildhall in Parliament Square, Westminster and the building is expected to open in 200927 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. The third significant provision of the Act is the introduction of the Judicial Appointments Commission (the Commission), which is now responsible for selecting judges in England and Wales. Previously, judges were appointed by the Lord Chancellor, which compromised political independence. Taking the power from the Lord Chancellor into the decision of an independent commission was a much needed move towards transparency in selection procedures which is fundamental to the separation of powers doctrine. The Commission launched its new system to select High Court judges on 31 October 200628 with the requirement that candidates submit a nine page application form. The Commission’s system officially claims that appointments are to be made on the basis of merit solely29. However, although the Commission is made up of a mixture of professional, judicial and lay members, the presiding Chairman of the Commission 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, it is also arguable that being a member of the House of Lords directly contradicts the purpose of the Commission as a symbol of the preservation of separation of powers, especially when the Executive and Legislature is in fact the presiding Chairman in charge of judicial appointments. 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 precision30. 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 basis31. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary32. 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 reform33, 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 Executive34. 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 three35. 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 curtailment of the Lord Chancellor’s powers and the reform of the House of Lords was a much needed improvement to the current system of law reform and judicial law making. However, any effective law reform is dependant on effective enforcement. As such, it is questionable whether the Judicial Commission adequately addresses the previous problems associated with the Lord Chancellor’s power. The fact that the Chairman is also a member of the House of Lords is disappointing in light of the purpose of the Act. Furthermore, the Act missed an opportunity to address the “channels of communication” between the three organs and it remains to be seen how far the Act will go to improve the doctrine of the separation of powers in practice. 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