Theory Separation of Power as Promulgated in the UK Constitution - Essay Example

INTODUCTION: The origin of the theory of the separation of powers s back to the ancient days of Aristotle. Since then political have recognized the three fold distribution of governmental functions or powers. They are: 1) the law-making or legislative power; 2) the law-enforcing or executive power; and 3) the law-adjudicating or judicial power. Each of these powers is exercised by its own department or organ of government. In the British law also the theory of separation of power has great importance in the constitution of Britain. Montesquieu was the first writer who expounded this three0fold division as a theory of separation of powers in order to safeguard the rights and liberty of the individuals. (Barendt, Eric, 1997) Montesquieu theory was based on the conditions of his own time. He was from France and at that time France was ruled by a Tyrant King. He saw people in his country in deplorable condition as a result. On the other hand, he visited many countries where people enjoyed great freedom and liberty and concluded that their happiness was a result of separation of powers in the government of those countries. He presented his doctrine of separation of powers in his famous book, The Spirit of Laws in 1748. In his book he explained his theory in the following words;- "In every government there are three sorts of power: legislative, executive and judicial. The liberty of individual requires that neither all these powers nor any two of them should be placed in the hands of one man or one body of men. When the legislative and executive are united in the same person or body of person, there can no liberty, because apprehension may arise that the king, who is also the law-make might end up making and enforcing law in a tyrannical manner. He further stated that if the judicial power is joined with the legislative power, the life and liberty of the people would be exposed to arbitrary control, for the judge would then be the legislator and would interpret laws as he pleases. If the judicial power is joined to the executive power, the judge might behave with violence and oppression and, there would be an end of everything if the same man or the same body, were to exercise those powers that of enacting law, that of enforcing them and of trying the cases of individuals. Many English writers and thinkers imitated him in their own way and we can see the perfect example of the doctrine of separation of powers in England. The English jurist, Blackstone, expressed the idea of separation of powers in the following words: "Whenever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty. In Britain also, there are various authorities who hold some degree of power but not absolute power. These authorities are: Royal Crown, Parliament, Prime Minister and his cabinet, judicial system of Britain. All these constitute different forms of powers, which we are going to discuss in the later part of our essay. The powers that are held by the Royal Crown are contained in a body of laws known as "Royal Prerogative". These are actually formal powers that are granted to the Britain's Royal Crown in the executive and British politics. However, one must remember all the time that even these powers are not absolute powers and are checked by many limitations upon them. The following powers are given to the Royal Crown, and if we analyze them in detail, we will find out that the principle of separation of powers even apply to the Royal Prerogative. For example, The Queen reigns over Britain and chooses and dismisses the Primer Minister. However, she cannot choose just anyone for the post of Prime Minister, but only after the election are held, only then she could choose the leader of the party securing majority in the party as the Prime Minister of Britain. This law limits her powers that she cannot own on her own accord but instead she only acts on the accord and willingness of general public. In theory, the Royal Prerogative gives the right to choose ministers to the Royal Crown, but in reality it is the Prime Minister who chooses people for these important posts and only the Order of Garter is to be given by the Royal Crown. Royal Prerogative also gives the right of dissolving the parliament to the British monarch, but for that the monarch has to be advised by the Prime Minister. Thus all the above discussion tell us that the Royal Prerogative keeps necessary checks on the British monarch and distributes the powers between the British Parliament, Prime Minister and the Royal Crown effectively, on the basis of theory of Separation of Power as promulgated by Lord Montesquieu. Another body in Britain that shares the power with other institution is the Privy Council. In Britain Privy Council is also known as Her Majesty's Most Honorable Privy Council. The function of this council is to exercise executive power by making Orders in Council. It is also used to grant Royal Assent to the laws passed by the British Parliament. So, one can again see that Royal Assent is a necessary requirements to the laws that passed by the Parliament which again restricts the powers of the British Parliament and again displays the system of Separation of Power in the British Parliament. Another important source that holds power is the judicial system of Britain. This system has gone through many changes to make it transparent and to make sure that it also displays the same degree of separation of power as the other important institutions of the UK. Peter Fitzgerald (2003, pp. 3-7), states that in 2003, it was decided that a new supreme court would replace the old system of Office of Lord Chancellor. These changes were aimed at separating the judiciary in the United Kingdom from executives and legislative powers. This would channel a safe distribution of power in different institution of the United Kingdom. It would further enhance the trust that people will now have in the smooth running of the political system of the UK and to make sure that no law detrimental to the aspirations of the people, meant to exploit people would ever be implemented as it will have to go through a review under more cautious system. This shows that the Royal Crown does not have the absolute power but they can accord only on the advice of the Prime Minister and his cabinet. Similarly, Prime Minister and Cabinet do not form independently but they have to be approved by the parliament through voting. This means neither authority holds absolute power but all the authorities constitute the full power or absolute power. After the parliament chooses the Prime Minister, a cabinet is chosen who are given authority over particular issue or government departments. However, they are assessed by the parliament and they have to report to the parliament before taking any major decision. The people who are included in the cabinet are called ministers and are given charge of a specific portfolio, which can be a particular issue or they are made responsible for a governmental firm or institution as discussed above. (George Jones & Joshua Rozenberg June 13, 2003) In order to assess the performance of these ministers and to make sure that they are not abusing their power, a convention of ministerial responsibility was established in the nineteenth century. This convention is a part of uncodified constitution of the UK legal system. It holds the minister accountable to the public and parliament of the UK. It provides that there are four responsibilities of a minister: 1) They have to explain their actions and policies to the parliament. 2) They have to apologize in front of the parliament for any error they make. 3) They have to take remedial actions for things which are not going according to the plan. 4) Since they are responsible for a department or an issue, if the performance of department keep deteriorating, they have to resign as a final resort. The doctrine of ministerial responsibility is a part of the theory of separation of party, where not even the minister has absolute authority over his designated department. He is responsible to enlighten the parliament and public about his actions. He is not only responsible for his personal conduct but also the conduct of his department (in terms of its performance) and the actions of the officials working in that department. If he is unable to appease the parliament of his actions, he may be asked to resign. In the recent years, many developments took place in the doctrine of ministerial responsibility to make sure that ministers do not abuse their power and continue to work for the welfare of the citizen of Britain. In 1992, a guidance notes for the ministers was published, which is titled "Question of Procedure for Ministers (QPM).This document prohibits the ministers from misleading the parliament of public and to correct any erroneous statement that has been made at the earliest opportunity. The other major development that took place in the doctrine of ministerial responsibility was the publication of Nolan and Scott report. This report interpreted this convention in the following points: 1) Ministers have a responsibility to the parliament and should not mislead it. 2) They should give correct and accurate information to the parliament. 3) They should be open to the parliament and should not refuse to give any information, that is been asked for. If we analyze the doctrine of ministerial responsibility, we will that British Law is pervaded with the conventions that aim to give priority to the welfare of its citizen. It has been established from the above discussion, that the welfare of citizens is based on the separation of powers. The convention of ministerial responsibly also separates the absolute powers from the ministers and makes them responsible to the parliament and public. It encourage them to do their job well and serve the citizen of the UK well because if they do not carry out their responsibilities efficiently, they can be removed from their position. British Constitution not only separates the executive, legislative and judicial power, but it also subdivide these power so that there is no chance that the people in authority abuse these powers in any which way. Thus, the above discussion clearly shows us that the Political System of UK is pervaded with the principles of "theory of separation of powers" as promulgated by Lord Montesquieu and his predecessors. In short, one can clearly see the transparency, equity and balance of the system, which has given a great degree of the stability to a region full of diverse cultures and people. Reference List 1. George Jones & Joshua Rozenberg June 13, 2003. Blair Casts Aside Legal History in Radical Reshuffle, DAILY TELEGRAPH (London), 2. Frances Gibb, June 14, 2003 Three Years' Grace for Title of Lord Chancellor, TIMES (London) 3. Lewis F. Abbott.2006. British Democracy: Its Restoration & Extension, ISR/Google Books 4. Barendt, Eric,1997, Is there a United Kingdom Constitution, Oxford Journal of Legal Studies (vol. 137) 5. Peter L. Fitzgerald, (2003). Constitutional Crisis over the Proposed New Supreme Court. Research Report. 6. Human Rights Act, 1998, c. 42 (Eng.). 7. 5. Northern Ireland Act, 1998, c. 47 (Eng.); Scotland Act, 1998, c. 46 (Eng.); 8. Government of Wales Act, 1998, c. 38 (Eng.). 9. 6. House of Lords Act, 1999, c. 34 (Eng.). 10. EVIDENCE, supra note 2,June 30, 2003,Question No. 56 (comment by Mr. A.J. Beith, Chairman, Comm. on the Lord Chancellor's Dep't) Read More