Separation of Powers in the UK - Essay Example

Separation of Powers in the UK Introduction In the UK, separation of powers has been implemented whereby the branches of the state, that is, the legislature (parliament), the executive (government) and the judiciary functions independently. In the history of UK, separation of powers was intended to preserve liberty of the state and prevent despotism whereby one body has more power than the other two bodies. In State and Federal governments the principle of separation of powers is supposed to apply to the three branches of the state’s government. History of separation of powers in UK In Montesquieu’s doctrines, in the “Spirit of Laws,” tyranny in the state arises when accumulation of powers occurs in one of the three branches (Turpin and Topkins 2012, p. 126). For example, if the parliament has more control over the others, there will be instability in the government. There has been the development of the UK government in achieving balance between the government and the parliament through application of the principle of separation of powers. In 1998, the Human Rights Act was launched by the parliament requiring consideration of the European Convention of Human Rights by the judiciary. Recently, the Constitutional Reform Act 2005 was geared towards separation of powers through the judicial reforms. The Act required abolishment of the offices of the Lord Chancellor and establishment of a Supreme Court of UK without the consent of the judiciary at that time (Masterman 2011, p. 34). Following the development in separation of powers in the UK government, the three branches function independent of each other. The current UK government constitutes of the legislature whose role is to pass laws and supervise their implementation, the executive, whose role is to implement laws, and the judiciary, whose role is to administer justice by ensuring compliance to the laws. The Legislature The Parliament of the UK comprises the House of Commons, the House of Lords and the Crown. The main roles of the Parliament include passing laws and following their implementation by the executive, the Government (Madgwick 1991, p. 23). The Parliament in conjunction with the Government played a great in the implementation of the Constitutional Reform Act 2005 that resulted to the establishment of the Supreme Court following the abolishment of the Lord Chancellor’s powers that undermined separation of powers. The Act dismissed the Lord Chancellor as the Speaker of the House of Lords, an effort towards separation of powers. The Parliament is privileged as it is granted the freedom to speech. It is unconstitutional when the courts interfere with the Parliament’s freedom to debate. The UK Parliament ought not to criticize the decisions made by the judiciary (Masterman 2011, p. 35). The separation of powers between the legislature and the executive has gradually developed from the history up to the current times. In Montesquieu Spirit of Laws 1748, he stated that the unification of the executive and legislative powers will lead to loss of liberty. No way can one institution exercise the powers of the other institutions and expect national liberty (Turpin and Topkins 2012, p. 127). In the House of Commons (Disqualification) Act 1975, efforts geared towards the reduction of the executive control over the legislature included the regulation of the number of cabinet ministers who sit in the House of Commons. Also, the Parliament has the power to dismiss the Government officers from their offices. The Parliament is independent in holding their debates and, as a result, passing laws to be executed by the Government. There have been aspects of Government control over the Parliament in history. However, the recent formation of the Backbench Business Committee in 2010 has enabled the Parliament to operate well without the executive controls (Carolan 2009, p.40). The cabinet ministers in a parliamentary debate tend to control agendas and this is an aspect of how the Government controls the Parliament. The Committee targets in allocation of time for debates ensuring that minimal controls over the Parliament arises from the cabinet ministers. The Members of the Parliament are democratically elected by the public and, therefore, they are entitled to holding debates on issues affecting the public without the domination from the government (Rush 2005, p.24). The Executive In the UK, the Government and the Crown, in inclusion of the Prime Minister and Cabinet ministers constitutes to the executive, Government of the state. Separation of powers arises because some members of the Government are also members of the Parliament. The executive and the legislature are closely related in their functioning since the Prime Minister and some of his or her ministers are Members of the Parliament. The Parliament formulates laws to be implemented by the Government. The separation of powers between the legislatures (the Parliament) and executives (the Government) allows smooth operations in the entire body. For example, the Parliament may delegate powers to the Government to correct small technical particulars in the already formulated laws (Madgwick 1991, p. 25). Presence of the executive in the Parliament ensures that the laws passed follow the right procedures in accordance to the Constitution. Majority of the cabinet ministers in the Government sits in the House of Commons, a constituent part of the Parliament, and, therefore, the Government ensures that right procedures are followed in passing laws. The Parliament cannot be dominated by the Government since the Parliament retains the powers to rule out executives from their operations in their offices. Additionally, the number of the cabinet ministers who sit in the House of Commons is regulated in order to minimize the possible controls over the Parliament by the Government (Rush 2005, p.25). The Judiciary In the UK, the Judiciary comprises the court of law’s judges, judges of the tribunals and the magistrates in magistrates’ courts. The division of powers between the Judiciary and the other branches of the state administration has been evolving in history and even today (Madgwick 1991, p. 26). The judiciary and the Parliament have separate powers as according to the House of Commons (Disqualification) Act 1975 that requires judges not to stand for elections to the Parliament. The judges ought to ensure that the parliamentary proposals are implemented by the Government in accordance to the constitution. The courts shall not issue orders to the Parliament for their practice of exercising the freedom of speech in their debates. The High Court judges have life tenures, and, therefore, protected from executions since they are independent in their operations. However, if a judge does not comply with the law, a resolution from both the House of Commons and that of the Lords can dismiss the judge from office. To some extent, the judiciary is subordinate to the legislature since judges ought not to defy the Acts of Parliament. However, the partnership between the judiciary and the Parliament has made it possible for the judiciary to make laws (Rush 2005, p.27). For example, the Human Rights Act 1998 gives the courts, the power to incorporate the European Convention on Human Rights in their rulings. The Constitutional Reform Act 2005, the Parliament in conjunction with the legislature reformed the judicial system, an effort in separation of powers in UK. The Supreme Court was created where the Lord Chancellor was replaced by the Lord Chief Justice. Before the judiciary reforms in 2005, the Lord Chancellor contributed to the fusion of powers since he or she was the Speaker of the Lords, a member of the Cabinet and the head of the judiciary. The Act achieved separation of powers because today, the House of Lords have their own elected Speaker and the chief of the judiciary is not the Lord Chancellor but the Lord Chief Justice (Masterman 2011, p. 36). The judiciary is independent of the Government, whereby the implementation of laws is checked by the judges without the interference from government officials such as the Prime Minister, Cabinet ministers and the heads of state corporations. However, there have been violations of the principle of judicial independence. For example, in 2004, some state officials proposed detention of terrorists in prisons without charges from the court. Detention of such criminals was an attempt of passing a political judgment by the executives rather than a judiciary judgment from the courts. In the Constitutional Reform Act 2005, the Parliament and the Government achieved their target of abolishing the offices of the Lord Chancellor without his consent. As a result, the Supreme Court was created and the Lord Chief Justice replaced the Lord Chancellor. Before 2005, the powers in the government were combined because, for example, the Lord Chancellor was a participant in the three branches. The functioning of the executive (Government) achieved in 2005 is effective up to date. The legislature (Parliament) debates on the matters arising from the public, then the executive (the Government) implements those laws. The judiciary ensures that the government operations in implementing those laws are in accordance with the Constitution of the UK. However, the domination of the Government in the Parliament has occurred leading to the recent creation of the Backbench Business Committee in 2010 aimed at minimization of the executive controls over the parliamentary agendas. In the UK, today, the judges are not elected to Parliament and, therefore, there is minimal control of the parliamentary debates In conclusion, it is evident that the separation of powers has gradually evolved from the times of Montesquieu in 1748 up to the recent creation of Backbench Business Committee in 2010. The division of powers between the judiciary, the Government and the Parliament has resulted to devolution of the UK government, for example, the creation of the Supreme Court in 2005. In the Spirit of Laws by Montesquieu in 1748, he ascertains that the fusion of powers between the three branches of government results to tyranny and loss of liberty of a state or federal government. A breakthrough was realized in 1998 in the Human Rights Laws Act when the judiciary was granted the power to incorporate the European Convention of human Rights in their rulings against the executives. . References List Carolan, E. (2009). The new separation of powers: a theory for the modern state. Oxford, Oxford University Press. P.40-45. Madgwick, P. (1991). British Government: The Central Executives Territory. Hemel Hempstead, Philip Allan. P.23-29. Masterman, R. (2011). The Separation of Powers in the Contemporary Constitution. Cambridge, Cambridge University Press. P.33-40 Rush, M. (2005). Parliament Today. Manchester: Manchester University Press. P.20-30 Turpin, C. and Tomkins, A. (2012). British Government and the Constitution (7th ed). Cambridge, Cambridge University Press. P.126-130 Read More