The Doctrine of Separation of Powers - Report Example

The Accuracy of Howard’s Comment Regarding the Doctrine of Separation of Powers under the UK Constitution The concept of separation of powers is a critical part of any constitutional law1. The concept of separation of powers holds that the executive, legislature, and judiciary should operate independent of each other. However, the concept of separation of powers allows for each to play an oversight role to ensure that no abuse of powers by any branch of the government occurs. For instance, although the legislature is concerned with making laws, the judiciary can play an oversight role to ensure that the laws passed by the legislature are constitutional. The United States codified constitution is a critical example of a constitution that is built on the concept of separation of powers. According to the U.S. constitution, the government is divided into three branches, namely the executive, legislature and the judiciary all of which functions independently of each other, though under supervision of each other to ensure no abuse of powers2. In fact, the main basis of separation of power doctrine is that it helps protect the liberty and democracy in a country. Nevertheless, there has been a strong debate as to whether or not the concept of separation of powers is embodied in the U.K. constitution. One such person to bring the issue into the debate is Montesquieu, who is widely regarded as the father of the doctrine of separation of powers. After studying the U.K. constitution for many years, Montesquieu argued the U.K. constitution does not operate on the concept of separation of powers; rather it is a fusion of the three arms of the government. This document seeks to evaluate the accuracy of Howard’s comment that the constitution of the U.K. is only a fusion, not separation of powers. In so doing, the document will start by explaining the meaning of the concept of separation of powers and its importance in order to understand how the constitution of the U.K. operate in practice. The constitution is certainly the most powerful tool that defines how a country is government. No country, whatsoever, can function effectively without constitutions that govern the conduct of leaders and citizens. However, regardless of how good a constitution might look on paper, leaders can easily abuse their powers and curtail the liberty and democracy power is concentrated in the hands of a few. For instance, while studying the French constitution, Montesquieu, the father of the doctrine of separation of powers observed that, since the French Monarch had allowed too much power, this created room for rampant corruption of government officials and oppression of the citizens. Therefore, to prevent this, Montesquieu proposed the introduction of a model which ensures that the power to run a country is divided equally to three arms of the government, with each operating independently and exercising checks and balances to prevent abuse of powers3. The three arms of the government that Montesquieu identified include the executive, legislature and the judiciary. In this regard, Montesquieu proposed that, whereas the executive should perform its role of ensuring day-to-day administration and enforcement of laws, the legislature should perform the role of making laws while the judiciary performs the role of ensuring that the people abide by the laws. Montesquieus theory, therefore, required that the three arms of the government should be entirely separate from each other in terms of their responsibilities and personnel. Accordingly, for there to separation of powers, no single personnel in one branch of the government should be allowed to work in more than one arm of the government at the same time4. Similarly, no single arm of the government should be allowed to perform the work of the other. Therefore, in Montesquieu views, no single arm of the government should be allowed more powers than the others to ensure that there are checks and balances, thereby preventing abuse of powers. For instance, whenever the executive acts in contravention of the law, the judiciary could restrain it. Alternatively, in the event that the legislature passed unjust laws, the executive would be there to ensure that the law is not implemented by either returning it for amendment or refusing it in totality. The United States constitution is often used as constitution of reference when illustrating the doctrine of separation of powers. The U.S. Constitution created three arms of government, namely the executive, legislature and the judiciary all of which function independently of each other. However, the three branches observe checks and balances to ensure that no single branch abuses its powers. For instance, the U.S. Congress, which is the legislative arm normally, makes laws, which are implemented by the executive. However, in the event that the Congress passes unjust laws, the executive has the power to refuse implementing the law5. Citizens can also move to court to challenge the constitutionality of the law. Similarly, the executive, though function independently cannot act ultra vires without its actions being checked by the Congress and the judiciary. Additionally, the U.S. constitution does not allow any personnel to work in more than one branch of the state. This begs the question whether or not the U.K. constitution adheres to the doctrine of separation of powers or it is merely a fusion as noted by Howard. Certainly, from close analysis of the U.K. constitution, it becomes clear that there is no separation of powers in the constitution of the U.K. Evidence shows that there are many incidences of overlap of both personnel and roles between the government and the parliament as observed by Howard6. Precisely, separation powers are not and have never been part of the U.K. constitution. Although the U.K. government has made certain amendments to ensure that there is a separation of powers between the three arms of the government, evidence still shows that there is still an overlap between the government and parliament both in terms of personnel and function. The Human Rights Act of 1998 was seen by many, including academicians and scholars as a game changer in the U.K. constitution. The successful passage of the law prohibited the infusion of the judiciary and the legislative arms of the government. The law effectively ensured that the judiciary and the legislature operate independent of each other and observed checks and balances to prevent abuse of powers. The case involving Council of Civil Service Unions v Minister for the Civil Service [1983] also served as a move towards ensuring separation of powers between the three arms of the government7. The ruling of the case was significant since it gave the judiciary powers to review the actions of the executive to ensure that it does not abuse its powers by acting ultra vires to the law. Although this was a right move towards ensuring the adoption of separation of powers, the constitution still allows an overlap of the function of the government and parliament, which contradicts the doctrine of separation of powers. The overlap between the government and parliament observed by Howard is seen in many instances in the U.K constitution, effectively confirming that the constitution does not adhere to the concept of separation of powers. Firstly, the doctrine of separation of powers advocated by Montesquieu requires that no single personnel in one branch should be allowed to work in more than one branch of the government at the same time. However, contrary to this, the U.K. constitution allows personnel in one branch of the government to perform duties in other branches of the government. For instance, the government ministers who are members of the executive arm of the U.K. government not only perform the executive functions, but also perform legislative functions in parliament. Additionally, the U.K. constitution also allows the government ministers to perform delegated legislations8. This contravenes the requirement of the doctrine of separation of powers as it clearly shows that the executive have the power to make laws, which should be the work of parliament, but not the executive. Similarly, the fact that the U.K. constitution allows government ministers to perform delegated legislative functions means that there is no proper checks and balances on how the government operates. In fact, the majority of U.K. legislators today are made up of government ministers through delegation of powers by parliament. The lack of separation of powers in the U.K. constitution is also demonstrated by the way the judiciary operates. Normally, the law making function is supposed to at the hands of the legislature in a constitution that allows for separation of powers. However, according to the U.K. constitution, there is an overlap in functions as courts also make laws by being allowed to develop the principle of common law. Accordingly, instead of interpreting the law and ensuring that the laws enacted by parliament are within the law, the U.K. courts also participate to a great extent in making laws9. This contravenes the requirement of the separation of power doctrine advocated by the Montesquieu. Howard’s observation of an overlap in the U.K. constitution is also true in the sense that the U.K. parliament, though responsible for making laws, is also participating to a lesser extent in performing judicial roles. The doctrine of separation of powers requires that parliament should perform only the legislative role and provide oversight to the judiciary and the executive. However, in the U.K. case, parliament also regulates its own internal affairs in addition to performing legislative roles10. The relation of the parliament’s internal affairs is supposed to be a judicial function, which is supposed to provide oversight to ensure that parliament does not abuse its powers by enacting laws, which are ultra vires to the constitution. Therefore, the fact that parliament performs some of the judicial functions is a testimony of an overlap of the functions of the different branches of the U.K. government. Under the doctrine of separation of powers, any dispute arising in a country should be solved by the judiciary as an independent body. For instance, in the U.S., where the doctrine of separation of powers is in operation, any dispute arising in the country is taken to court, which determines and solves the dispute without interference from the executive or the legislature. However, the situation is quite different in the U.K., where there is an overlap between the function of the legislature and the judiciary. The U.K. constitution grants government ministers to perform certain judicial duties, such as determining appeals in disputes arising in incidences, such as county and city planning laws11. Accordingly, this overlap of functions is a clear testimony that the U.K. constitution does not operate on the principle of separation of powers advocated by Montesquieu. Additionally, Howard’s observation of an overlap between the U.K. arms of government in the sense that the magistrates not only perform judicial functions, but also administrative roles. Under the doctrine of separation of powers, administrative roles should be performed by the government. However, according to the U.K. constitution, the magistrates have the powers to perform various administrative functions, such as issuing licenses12. This also clearly indicates the extent to which there is an overlap between the various arms of the government. In conclusion, the concept of separation of powers is a critical part of any constitutional law. Montesquieu, who strongly opposed to vesting powers in the hands of one arm of the government, advocated the development of the model that allows the separation of powers between three branches of the government. Montesquieu argued that, to prevent oppression of citizens and abuse of powers, there should be absolute separation of powers between the three arms of the government, namely the executive, judiciary and the legislature13. Unfortunately, a critical evaluation of the U.K. constitution clearly indicates that the constitution does not operate on the principle of separation of powers. As illustrated in the literature, there are many instances of an overlap between the government, parliament and judiciary in terms of personnel and functions. Accordingly, Howard was right to assert that the U.K. constitution exhibits a fusion, not separation of powers. This is because the literature has clearly indicated that there are a clear overlap between the government and parliament in terms of the personnel and functions of various arms of government. Bibliography D Oliver and G Drewry, The Law and Parliament (Cambridge University Press, Cambridge 1998). J Sellick, Key Facts: Constitutional & Administrative Law, Fourth Edition (Routledge, London 2013). N Howard, Beginning Constitutional Law (Routledge, London 2013). N Parpworth, Constitutional and Administrative Law (Oxford University Press, Oxford 2012). R Benwell and O Gay, ‘The Separation of Powers’ Parliament and Constitution Centre (2011) SN/PC/06053, 1-11. Read More