Separation of Powers between the Three Branches of Government - Essay Example

Separation of Powers between the Three Branches of Government Eric Barendt: “The separation of powers should not be explained in terms of a strict distribution of functions between the three branches of government, but in terms of a network of rules and principles which ensure that power is not concentrated in the hands of one branch.” Critically discuss the extent to which the UK constitution guards against excessive concentration of power. Separation of powers is basically a contemporary concept but it had its beginnings as far back as Aristotle in the early late 4th century B.C. Aristotle divided the functions of the government into deliberative, magistracy and judicial - functions which today have their equivalent in the executive, legislative and judicial. It was however, Charles Louis de Montesquieu who clearly defined the three branches of government and laid down the basics of the concept of separation of powers. Some countries being underpinned by the concept of separation of powers, like the United States, have written constitutions that clearly laid out and allocated the various powers and functions of the government to the different branches (Barnett pp. 105-106). This is not so with the United Kingdom. The UK Constitution does not consist of a single, written document but rather of various uncodified laws scattered in several documents like statutes, court decisions and treaties and unwritten ones like customs and conventions. A strict separation of powers normally divides separate powers and functions and allots them to the three branches government: the executive; Parliament, and; the judiciary. In the UK, the components of the three branches of governments usually share powers held by other branches in a mixed government fashion. Eric Barendt, however, author of the book Separation of Powers does not believe that UK necessarily has a weaker constitution because of this disparity. He believes that “the separation of powers should not be explained in terms of a strict distribution of functions between the three branches of government, but in terms of a network of rules and principles which ensure that power is not concentrated in the hands of one branch.” The Chief British Institutions: Their Powers and Functions The UK government, like other democratic governments, has three major institutions, all exercising various functions and powers and sometimes sharing the powers of the other branches: the executive, the legislative and the judiciary. The executive department is made up the Crown and the central government, the latter of which is composed of the Prime Minister and his/her Cabinet Ministers. The central government is accountable to Parliament, which can choose to dissolve it and force a new election of a new set of officials if it believes that circumstances warrant it. The members of the central government must, however, all come from the elected members of the House of Commons. This branch of the government is tasked with the formulation of government policies and the execution of laws. Attached to this branch is the civil service, armed forces and the police (Public Law p 45). Parliament, on the other hand, primarily exercises legislative functions and includes the House of Commons, the House of Lords, and also the Crown. As far as legislative powers are concerned, the House of Commons holds a superior position. Its members are elected by the people of the different legislative districts as their representatives once in every five years. The House of Lords constitute life peers appointed by the Crown, Archbishops and Bishops of the Church of England as well as a minority of hereditary peers. It used to be that some members of the House of Lords also performed judicial functions but a reform law in 2005 now forbid Law Lords to sit in Parliament ((Public Law p 45). The judiciary performs judicial functions, that is, to interpret the law according to Parliament intent. It includes judges from all courts of law, tribunals, and the magistrates’ courts. It is also tasked with the development of common law but is prohibited from challenging the validity of Parliamentary acts in enacting laws. Contemporary Doctrine: Partial Separation of Powers There is however, an emerging contemporary doctrine of separation of powers which does not necessarily espouse the isolationism of the different organs of the government. On the contrary, the modern view of this doctrine sees this arrangement as rather unworkable, especially if applied to the British form where Parliament dominates the government. Rather, this concept gives importance to interplay among the various organs to prevent legal and constitutional deadlock. For example, the executive may propose to Parliament certain legislations, which the latter may approve and pass into law and once passed, the judiciary moves to uphold (Barnett 107). An advocate of this contemporary concept of separation of powers is Eric Barendt who does not believe that the concept’s underpinning is the strict allocation of powers among the three organs of the government. Rather, Barendt believes that its major function is to prevent the concentration of powers in one or few individuals, which can result into tyranny. The implication of this view is that it is not important that powers are necessarily lodged in the most suitable organ, but shared so long as the end effect engenders harmonisation and prevents the tyranny of any branch. Barendt cites administrative bodies as examples, pointing out that their functions may range from the executive, legislative to the judicial, many, in fact, exercising two or more of these functions at the same time. Yet, the exercise of more than one power is what makes these bodies efficient and functioning. This is an ‘anomaly’ most observable in the United States, yet the US government is not seen as contemplating of abandoning it because this arrangement serves a very good purpose. In the UK, this phenomenon is more evident only, according to Barendt, with local authorities who normally discharge all three functions (Fenwick & Phillipson pp. 104-105). Barendt believes that a strict interpretation of the doctrine is not practicable. If it were, an administrative body performing multi-functions would be subject to supervision and regulation of the different organs of the government. If it were performing quasi-judicial functions, for example, and a strict imposition of the pure strain of the doctrine is imposed, the implication is it will be made subject to judicial imposition and supervision whilst at the same time under the control of the executive branch. On the other hand, if such an administrative body were to partially perform legislative functions through the issuance of rules and regulations, the implication is that it would have to be subjected to the legislative supervision if the pure doctrine of separation of powers is to prevail (Fenwick & Phillipson p. 105). The Extent to Which UK Constitution Guards against Excessive Concentration of Powers According to Hilaire Barnett, there are three models of constitutional powers: “(a) absolute power residing in one person or body exercising executive, legislative and judicial powers: no separation of powers; (b) power being diffused between three separate bodies with no overlaps in function or personnel: pure separation of powers, and; (c) power and personnel being largely – but not totally – separated with checks and balances in the system to prevent abuse; mixed government and weak separation of powers” (p. 107). A scrutiny of the UK Constitution would reveal that it is patterned after the third model in which there is no clear-cut separation of powers because some officials of one organ of the government also serves in another or one organ also exercises functions of another. A strict interpretation of the doctrine of separation of powers requires that the three main governmental organs – the executive, judiciary and the legislative – are separate and distinct from each exercising powers especially allocated to them by the constitution exclusively. The underpinning of this, according to Montesquieu is “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty … Again there is no liberty, if the power of judging is not separated from the legislative and the executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression” (Fenwick & Phillipson p. 103). In this sense, the UK brand of separation of powers does not fall squarely with this model considering the evident overlapping exercise of powers such as that of Crown which performs both executive and legislative functions, the House of Lords which functioned both as legislators and judges prior to the 2005 and the Lord Chancellor who likewise exercise all functions of the government prior to 2005 and in several other instances of government institutions with overlapping functions and powers (Public Law p. 45). To a certain extent, the British Constitution is a product of practical experience and history and therefore does not largely conform to established set of theoretical doctrines. Thus, unlike other constitutions, there are no fixed set boundaries of rules and powers to be exercised exclusively by one organ or institution of the government. As a matter of fact, Bagehot described the Westminster type of government as “the close union, the near complete fusion, of the executive and legislative powers” which is connected to each other by the Cabinet which is a “combining committee – a hyphen which joins, a buckle which fastens, the legislative part of the State. In its origin it belongs to one, in its functions it belongs to the other” (cited Wright 45). The fact, however, that there is a blurred distinction of functions of the different organs of the UK government does not make it less efficient than the others nor does the supposedly weak system of separation of powers inherent as a consequence of this type of Constitution opens it to the specter of tyrannical rule as is wont to happen to systems whose weak separation of powers result in poor checks and balances. On the contrary, it is the mixed nature of UK constitutional government that serves as deterrence against the specter of tyrannical rule because it is founded on the belief of limited government where members of different institutions closely associate with each other engendering harmony and preventing others from total control of one branch of the government (Pollard et al p.45). The UK Constitution, despite its non-conformism to the universal theory of pure separation of power by not allocating powers and functions clearly in one organ and on the contrary allowing different institutions to share powers and functions, is nevertheless serves the major objective of the doctrine: the deterrence of tyrannical rule through effective checks and balances. It does this through a different perspective, one that incorporates practical experience and practices. Nevertheless, in 2005, the government through Parliament passed a legislation that would strengthen the function of checks and balances by even more streamlining the governmental system. The Constitutional reform Act of 2005 is considered an important measure because it places governmental organs in clearer perspectives especially the judiciary. The measure includes provisions that ensure the independence of the judiciary from both the legislative and the executive by strengthening its independence, curtailing the powers of the Lord Chancellor by firmly placing the position more towards the executive than in the judicial and reinforcing the administrative aspect of the judiciary by placing at its head the Lord Chief Justice in England and Wales (Flinders et al p. 248). Works Cited Barnett, Hilaire. Constitutional and Administrative Law. Routledge, 2002. Fenwick, Helen & Phillipson, Gavin. Text, Cases & Materials on Public Law & Human Rights. Routledge Cavendish, 2003. Flinders, Matthew & Gamble, Andrew & Hay, Colin & Kenny, Michael. The Oxford Handbook of British Politics. Oxford University Press, 2009. Pollard, David & Papworth, Neil & Hughes, David. Constitutional and Administrative Law: Text with Materials. Oxford University Press, 2007. Public Law, Chapter 4: The Separation of Powers. University of London External Program http://www.londonexternal.ac.uk/current_students/programme_resources/laws/subject_guides/public_law/public_ch4.pdf Wright, Anthony. The British Political Process: An Introduction. Routledge, 2000. Read More