Separation of Powers in the U.K

Published: 2019-10-10 06:30:00
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In the United Kingdom (U.K), the doctrine of the separation of powers is not entrenched in the constitution in absolute terms. As many ties in the application of the law have been seen, there is a major overlap when it comes to the functions of the organs of the state and the people work in them (Vibert 2007, p. 29). However, it does not necessarily mean that there is a lack of oversight when it comes to strategies aimed at mitigating abuses of power. In the U.K, there is a system of checks and balances performing this function. Separation of powers is an essential ingredient in democratic governments as it is wise to have powers distributed across the various functions of government. The legislature, the executive, and the judiciary should influence one another in the functioning of state (Barnett 2002, p. 8).

The U.K does not have a written constitution as it was mainly developed through the evolution of common law. It is this factor that has led to some scholars arguing that the nation does not have a formal separation of powers. Montesquieu first came up with the concept of the separation of powers back in the 17th-century after observing the British system in operation. He noted that the best way of avoiding tyranny in a state was to create a clear distinction among the three organs of the government as listed above (Barnett 2002, p. 21). In evaluating the principles exhibited by the doctrine of the separation of powers, three main things emerge. Firstly, the doctrine could mean that the same persons should not be found in more than one of the three entities of governmental operations. Secondly, it could also mean that these entities should be kept separate to the extent that there should be no interference from each other. Lastly, one can also reason that these entities should not be in a position to exert influence and power over the other entities. For this reason, the doctrine of separation implies that the three organs of government should be able to function independently in their individual spectrums as defined by the constitution with as minimal interference from each other as possible (Barnett 2002, p. 43).

Looking at the current structure of the U.K government, there is a case to be made for overlapping functions playing themselves out about the executive and the legislature. The cabinet members who are part of the Executive are also members of the House of Commons or Lords which represents the Legislature. Legislative power in the U.K is held by the parliament, which is in essence composed of three main parts, including the Monarch, House of Lords, and the House of Commons (Vibert 2007, p. 51). While the Monarch only has nominal powers, the House of Commons together with the House of Lords possess the power to determine the laws of the land. The Monarch is usually required to listen to the advice of the Prime Minister, who is in turn tasked by the members of parliament. In evaluating the structure of the parliament, the House of Commons is superior to the House of Lords when it comes to the creation of laws (Barnett 2014, p. 21). However, there is a dilemma created by the fact that the House of Lords is mainly comprised of unelected hereditary peers as well as life peers who have been appointed by the Archbishops and Bishops of the Church of England as well as the Crown. The first overlap of the functions of the U.K government is already manifested in this regard. The Monarch has considerable ability to influence the Legislature despite the House of Commons being superior to the House of Lords when it comes to the creation of laws in the nation (Drewry 1980, p. 31).

The connection between the Crown and the Executive is also conspicuous in nature since the convention goes that the Executive consist of the Crown and the government. In the U.K, the Executive takes the form of the Prime Minister, the Cabinet of Ministers, and the Civil Service. The Executive is tasked with formulating and executing government policies while being accountable to the parliament in the process (Harris 2015, p. 33). According to the U.K constitution, the government is mainly elected from the Members of Parliament who can be found in the House of Common or the House of Lords. Such an arrangement leaves question marks on the integrity of these government functions. The Crown can determine the composition of the House of Lords, and these same individuals can also be part of the Cabinet. Such a scenario creates overlapping functions in the U.K government since the same group of individuals can be found in the organs of government (Barnett 2014, p. 12).

A good example is seen in the case of McGonnell v U.K (2000) 8 BHRC 56 (Harris 2015, p. 24). In this case, it was brought out that the functions of government should be separated since an individual was found to be in the Executive, Judicial and Legislative positions. Sir Graham, the Bailiff of Guernsey, had to justify the constitutional validity of his roles as outlined by the government appointments. The case was brought by the Court of Appeal and the ECJ rule that his role as part of the Executive raised doubts with regard to his impartiality since he also had the ability to determine the applicants planning to appeal. A similar example is also cited about Lord Chancellor, who acts as Speaker of the House of Lords, thus presiding over the legislature (Persson, Roland, and Tabellini 1997, p. 1180). Additionally, he also holds a judicial position being a Senior Appellate Judge, while at the same time, sitting in the House of Lords Judicial Committee. The Lord Chancellor also holds and Executive position as a Cabinet Minister. It is this scenario that points the fact that the separation of powers in the U.K is practiced, but in a weak form (Drewry 1980, p. 44). However, the position of Lord Chancellor was revisited through the Constitutional Reform Act 2005, and he was effectively removed from the Judiciary. Simultaneously, he does not act in his former capacity as the Speaker of the House of Lords, and there are measures instituted to ensure Lord Chancellor is not a part of either the House of Lords or the House of Common (Barnett 2014, p. 54).

A significant aspect of the U.K government and the entire nation itself is the fact that the judiciary can determine the laws of the land. The main function of the Judiciary is to hear upon as well as resolve the matters of law. However, the judiciary has for a long time been used to develop the laws of the land through judicial judgments. In the U.K, the judiciary mainly consists of judges in courts in addition to the individuals who hold judicial office in arrangements such as tribunals (Persson, Roland and Tabellini 1997, p. 1195). The Crown makes senior judicial appointments. While there are those arguing that the judiciary in the U.K be independent of the influence of the Executive and the Legislature, its structure proves otherwise. The ability of the Crown to determine the Senior Judges in the nation creates an overlap of functionalities in the British government. One reason cited for the independence of the judges in the U.K is the Act of Settlement 1700, which in essence stipulates that Senior Judges can only be dismissed by an address to the Crown from both the House of Lords and the House of Commons (Vibert 2007, p. 22). Such an Act provides a system of checks and balances that in essence ensure that the judges cannot be controlled by forces beyond the Judiciary (Harris 2015, p. 41).

The House of Lords has twin functions in the government since it holds both a Legislative and Judicial function. While this can result in an outcry from the activists, the judicial members of the House of Lords do not get to influence legislative matters of the House (Vibert 2007, p. 36). In similar fashion, the legislative members of the House of Lords rarely have the opportunity to determine matters on judicial cases. As such, while the same individuals may have the capacity to be in both judicial and legislative aspects of government, the House of Lords can separate itself from meddling in the affairs of both organs of government (Persson, Roland, and Tabellini 1997, p. 1179).

Drewry believes that there is no distinct separation of powers in the U.K., and the terms Legislature, Executive, and Judiciary are merely words used to describe the many things that go on in government. The reality of the situation is that the boundaries between these organs of government are indistinct since they are all functionally interrelated (Drewry 1980, p. 14). However, as mentioned before, the doctrine of the Separation of Powers can be construed to mean otherwise. In this instance, the U.K system of government can be said to have a form of the doctrine in application since the three main entities can work to create a subliminal control over each other. In the process, it can serve to ensure no one can exert too much power and control over critical processes and resources in the nation (Persson, Roland, and Tabellini 1997, p. 1182).

An example is given in the case whereby the courts have the capacity to review delegated legislation to determine whether these laws are ultra vires. The Executive can appoint judges by advising the Queen on their appointment. The Judges can also check the Legislature and the Executive as they interpret various matters of the law. An example is given of R v. Secretary for Transport, ex parte Factortame (No.2) [1991] 1 AC 603, whereby the House of Lords determined that it could suspend an Act of Parliament if it conflicted with the European Law (Harris 2015, p. 18). In this instance, it can be deduced that the Judiciary relied on another power in the European Community to keep track of the activities of the Legislature and the Executive (Manin 1984, p.29). However, in looking at the recent referendum to pull out of the European Union, it presents another dilemma on the ability of the Judiciary to rely on European Law to counter breaches that may have been performed by either the Judiciary or the Executive.

Another issue is the fact that the legislature is already dominated by the Executive, thus undermining the doctrine of the separation of powers. In the U.K, the government is formed by the leader of the party that wins the most seats in the House of Commons. As such, the government cannot be established unless a clear majority is identified. The lack of a clear majority would result in a joint coalition government (Vibert 2007, p. 33). From this arrangement, one cannot deny the fact that the legislature can be placed under intense pressure from the Executive to propagate its interests. While a coalition government may result in less dominance by the Executive when it comes to legislative matters of the House, a clear majority presents another problem as it would mean that the government essentially controls the House of Commons (Persson, Roland, and Tabellini 1997, p. 1176).

While there have been considerable changes to the U.K legal landscape with regards to the functioning of the three organs of government, there are clear gaps that can effectively create ambiguities on the roles and responsibilities. The Constitutional Reform Act of 2005 enshrined the judicial independence in a clear and identifiable law. The establishment of the New Supreme Court brought about a complete separation between the upper house of Parliament and the senior judges. However, other changes still need to be made with regards to the relationship between the Executive and the Legislature. The role of the Monarchy is also influential in the determination of various functions of the government. As Drewry described it, the distinction between the three organs of government is merely a formality to describe the way things are done in the U...

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