The Doctrine of Separation of Powers - Essay Example

Separation of Powers in the Constitution The doctrine of separation of powers is central to any constitution; and it prevents concentration of power. The latter would result in an absolutist government or authoritarian rule. The concentration or fusion of power and overlapping of functions ultimately leads to autocratic rule. The doctrine of separation of powers ensures the absolute separation of power and the independent operation of each branch of government, free from the interference of the other branches1. These two extremes occur, due to the fusion or distribution of power. The UK adopted a constitution that proved to be a compromise of these two extremes. It has claimed that its constitution is a mixed or balanced constitution. However, there is considerable overlapping and commingling of the functions of the various branches of the government, in the UK. In addition, the UK does not have a written and codified constitution, which is in the form of a single document2. In the absence of such a constitution, it is difficult to define and identify the role, power and boundaries of each branch of government. It has been contended that a doctrine of separation of powers, could prevent governance. Nevertheless, the separation of powers is justified; and the separation of the judiciary from the legislature and executive, is indispensable. The 18th century jurist, Montesquieu had emphasised that the different organs of the government must act independently of each other and that there should be no interference from the other branches. Moreover, no branch of the government should undertake the functions of any other branch. This maxim has been formally recognised by most of the written constitutions. The UK constitution does not recognise this crucial doctrine; and instead of a separation of powers, the UK favours the unity of powers3. This constitutes a manifest reversal of Montesquieu’s doctrine. Specifically, this notion came to the fore, in the days of Aristotle and is also to be found in the literature of John Locke. The concept of separation of powers deals with the distribution of power between three branches of governmental function. These are the executive, legislature and judiciary4. Separation of powers is of great significance in a democracy. Thus, the legislature is endowed with monopolistic power over the making of laws. Similarly, the judiciary enjoys a monopoly over the interpretation of the law; whilst the executive is bestowed with a monopoly over the administration of law. On the basis of this formal understanding, the founders of the constitution had stressed upon the separation of powers, between the legislature, executive and the judiciary. However, Dicey had paid greater attention to the role of judges5. The separation of powers ensures that each branch of the government discharges its duty, within its powers. The government is the executive, the Parliament is responsible for the legislative function and the courts perform the judicial function. The power wielded by these three governmental organs has to be separated, and each branch has to function independently from the others. Such an arrangement would safeguard liberty and promote the optimal functioning of the government. The unity of power or the fusion of these functions would endanger liberty. Moreover, this would lead to the concentration of power with one of the branches of government. This is turn, would deprive individuals of their rights; and have a negative impact on the role of government6. The Westminster model of parliamentary government envisages an amalgamation of the legislative and executive powers. It constitutes the converse of the theory of separation of powers; because, the members of the political executive will also be members of the legislature7. Hence, the theory of integrated government can be understood as the extent to which there is such blending, and not on the basis of the extent of separation. The concepts of mixed government and the separation of powers are founded on restricted governmental access to the state, depicting danger to liberty, instead of favourable collective action. Despite the absence of the notion of separation, Vis – a – Vis the functioning of the legislature and the executive, it is very much in evidence, as far as the maintenance of the law and the judiciary are concerned8. The concept of judicial review was developed, in order to monitor the lawfulness of the acts of the administration. It was not aimed at supervising primary legislation. This challenges the manner in which the law of the land is administered and implemented, rather than contesting the legislative supremacy of Parliament9. Since the past three decades, judicial review made swift strides. This was accompanied by the penchant of the courts to address important and controversial political concerns. Some of the contentious issues, dealt with by the judiciary, are deportations, immigration, nationality, and public schemes, such as social security, child support and compensation for criminal injuries. Such judicial activism has catapulted the judiciary to the vanguard of political debate10. The judges, who undertake Judicial Review in the UK, are likely to discuss the constitution, on account of their exposure to European law. Such familiarity is on account of having dealt with EU and ECHR cases11. It is commonplace for social issues to create a serious rift between the judiciary and Parliament. On occasion, the judiciary has been seen to retreat from its original stance on some issue. At such times, the judiciary has been known to recommend decision by political involvement12. On such occasion s, the courts have not been hesitant to activate the argument relating to the separation of powers. Separation of powers prevents the concentration of power with any one branch of government. It also prevents interfere by one branch with the functioning of the other branch. In cases relating to civil liberties, the judiciary is justified in insisting that the executive procure the sanction of the legislature, prior to depriving an individual of civil rights and liberties13. The British Constitution requires the Prime Minister, his cabinet ministers and other ministers to be members of either the Upper of Lower House of Parliament. The Lord Chancellor exemplifies such fusion of powers. He is not only a cabinet minister, but also a member of several cabinet committees. Thus, the Lord Chancellor constitutes an important member of the executive14. Although, separation of powers was a notion that had originated from British practice, there are several significant situations, wherein, there is a fusion of powers. With the advent of the Supreme Court in the UK, from October 2009, there has been a marked increase in the clarity of constitutional dispensations. Specifically, the judiciary has been significantly separated from the legislature15. The Supreme Court has taken over the judicial role of the Law Lords. This is a positive step towards the Separation of Powers. In R v Lord Chancellor ex p Witham the decision of the Lord Chancellor to abolish fee exemption and remission in the High Court had been disputed16. It was held by the Court that the decision of the Lord Chancellor was unlawful. This case serves to illustrate the inherent conflict of interest, associated with the role of the Lord Chancellor in the judiciary, executive and legislature17 .Moreover, the court ruled that individuals had a constitutional right to access the courts; which could not be abrogated by the executive, in the absence of explicit authorisation by Parliament. However, with the recent constitutional reform, the Lord Chancellors role has been mitigated and this has engendered a clear distinction between the executive, Parliament and the judiciary18. A constitution has been proposed for the entire European Union, and this requires judicious reflection on several issues. Some of these are, the supremacy of the House of Commons; and the presence of a civil service system that is independent, unbiased and whose members are appointed purely on the basis of merit. Furthermore, the UK engenders different approaches towards international law and its obligations to make its domestic law conform to international treaty obligations19. The British Constitution owes its origins to customs, precedents, and Acts of Parliament. Thus, it is a complex framework, wherein those who exercise power have to perform20. In addition, there is no codified or written constitution, in the UK; and there is an absence of technical classification that would differentiate between ordinary and constitutional law. The UK is distinguished by a tradition, whereby there is a modicum of restriction on the House of Commons to formulate laws. Furthermore, there are several Parliamentary select committees that have the wherewithal to garner evidence and make the government of the day, accountable for its activities21. There is no single written document, which can be termed as the constitution of the UK. This constitution is derived from various elements, which are available in different areas. The British constitution developed through tradition and as a consequence it is asymmetrical. Despite the passage of many years, there had never been an endeavour to collect at one place, the different rules and conventions, which constitute the constitution. Bibliography Collins, M., 2000, As Level Law, Routledge Cavendish Dyzenhaus, D., 2004, ‘The genealogy of legal positivism’, Oxford Journal of Legal Studies, 24(), Pp 39-67 Fenwick, H., & Phillopson, G., 2003, Texts, cases & material on public law & human rights, Routledge Cavendish. McEldowney, J., 8 September 2003, The effects of the proposed European Constitution, Retrieved 1 March 2010 from http://www.parliament.the-stationery-office.co.uk/pa/Idselect/Idconst/168/16809.htm Ministry of Justice, Supreme Court, 21 August 2009, Retrieved 1 March 2010 from http://www.justice.gov.uk/about/supremecourt.htm Pilkington, C., 1999, The Politics today companion to the British Constitution, Manchester University Press R v Lord Chancellor ex p. Witham (1997) 2 All ER 779 The Lord Chancellor, 13 November 2009, Retrieved on 1 March 2010 from http://www.parliament.uk/about/how/principal/lord_chancellor.cfm Watts, D., 2006, British government and politics: a comparative guide, Edinburgh University Press Wright, A., 2000, The British Political Process: an introduction, Routledge Read More