Separation of Powers Within the United Kingdom Constitution - Essay Example

? Separation of Powers within the United Kingdom Constitution Number: Separation of Powers within the United Kingdom Constitution The doctrine “trias politica” or separation of power (SOP) is very important for the structure and functioning of a state. It identifies the major institutions of the state, allocates power and prescribes limitations on those powers. According to Viscount Henry St John Bolingbroke (1748) separation of powers is necessary for the protection of individual freedoms, and thus for security of persons. Its most popular proponent, Montesquieu adds that separation of power ensures liberty in the three arms of government. Barnett (2008) argues for clear allocation of the state’s primary functions and placement of checks and balances to ensure that no institution takes over the functions of another. The English government has three branches which include: the executive, the legislature and the judiciary. The U.K is a constitutional monarchy. The monarch is the executive head of state while the Prime Minister is the head of government. Additionally, the executive includes: cabinet ministers, civil service, the police and the armed forces. The executive formulates and implements government laws. The legislature, formally the “Queen in parliament” is responsible for making laws. The judiciary is supposed to be free from parliament and the executive, and is responsible for resolving conflicts between institutions of the state, individuals and the state and individuals, immune from criticism. Separation of powers, strenghthened by the rule of law and parliamentary sovereignty are highly emphasized in the English Constitution. There would be no liberty if the same man or the same body exercised those three powers (Montesquieu, 1748). The powers of the three arms of government generally overlap. The British Constitution does not strictly separate the powers. This is mainly due to complexity and the interrelated nature of the functions of the state. A solid example of overlap between the three branches is the position of the Lord Chancellor who is a member of the Cabinet, the head of judiciary and also chairs the House of Lords when they sit as legislature. The Constitutional Reform is currently reforming this role to highlight SOP. However, some argue that such a position acts as a bridge between the executive and the judiciary. The executive and legislature have great connections in exercise of their powers. According to Bagehot (1867) that relationship is the “efficient secret of the English Constitution.” Overlaps are evident as seen when ministers sit in parliament and perform legislative functions; and the executive tends to control MPs to vote in a certain way. The government is usually made up of the party with the majority of seats in the House of Commons, which means that the executive has great control on legislative decisions. The Prime Minister, cabinet and bureaucracy determine the legislative agenda and the cabinet. Also, many judicial officers such as the Attorney General and the Lord Chancellor are appointed by the government. The executive generally dominates especially in cases where the government has a firm majority in the House of Commons to the extent that it is assured of winning major votes in the House. In Britain, a government of national majority coalition draws its political leadership in dominant control of authoritative decision making; and national public policy. The legislature may interfere in executive roles when government loses a vote of confidence and through Acts of parliament which may affect executive decisions. There is an overlap between the Judiciary and the Executive in that the Lord Chancellor who is the head of Judiciary also sits in the cabinet. In this case a member of the Judiciary finds himself in the cabinet. Again the Lord Chancellor chairs the House of Lords when they sit as legislature. In this instance a person who heads the Judiciary also chairs the proceedings of the legislature. There is no clear cut separation of powers to this regard. The passing of the Constitutional Reform Act sparked the end of the House of Lords as the final court of appeal. This highlights the need for separation of power between the judiciary and the legislature (Hope 2005 and Falconer 2007). The Court was created to ensure independence of the judiciary and to uphold the rule of law. The House of Lords generally lost jurisdiction as the final court of appeal which is illustrated in many cases. For example, its first illustration of weakness was depicted in light of Skinner v East India Company (1666). According to Flemion (1974), the House of Lords became significantly dormant during the Trudor period. For example, in 1824, the House decided a case without the presence of any lawyer (William 1980). Also, lay peers who played a great role in upholding the principles of law were for a long time denied a chance to vote, as seen in the cases regarding O’Connell v R (1844), Rylands v Fletcher (1868), and Bradlaugh v Clarke (1883). The Constitutional Reform Act 2005 disqualifies judges from sitting in the House of Lords. On the other hand, serving Lords of Appeal in Ordinary are now entitled to sit in the house which allows them direct access to legislative policies (Cornes 1999, Slynn 1999, Wilberforce, 1999, and Wakeham, 2000). Towards greater separation of power, the Constitutional Reforms Act prescribes the creation of a Judicial Appointments Commission which is bestowed with the powers to appoint judges for English and Welsh courts. The commission makes appointments solely based on merit, free from government interference. It ensures a high quality independent judiciary that creates better checks and balances on the executive and legislature. The Act protects judges from political pressure and gives them security of tenure which preserves judicial independence. The Act also recognizes the Judicial Appointments and Conduct Ombudsman who investigates complaints about judicial appointments and handles matters regarding judicial discipline (www.justice.gov.uk). The Ombudsman is entirely independent of Government and Judicial influence. He acts as a check on any maladministration in the judicial system, ensuring high service delivery standards In conclusion, constitutional reforms in the U.K greatly strengthen separation of powers. Separation of power ensures that power is diffused between the three branches of government, and no one branch excessively takes over the roles of another. It ensures power sharing to avoid excesses of power in one body. Although separation of power is important for a functional state, absolute SOP would lead to a deadlock in state functions. Therefore, the English Constitution instills checks and balances to ensure accountability and efficiency in the three branches. The doctrines of separation of power supports Lord Acton’s view that “power corrupts, absolute power corrupts absolutely.” References Barnett, R.E (2008). 4th ed. Contracts: Cases and Doctrine. London: Aspen Publishers. Bagehot, W (1867) The English Constitution. London: Oxford University Press. Bradlaugh v Clarke (1883) App Case 354. Constitutional Reform Act 2005. http://www.legislation.gov.uk/ukpga/2005/4/notes/contents. Retrieved April 26, 2012. Cornes, R (1999) ‘The Role of the Law Lords (briefing paper)’ in Wakeham, Lord (2000) Royal Commission on the Reform of the House of Lords: A House for the Future Accompanying CD to Cm 4534 [CD-ROM] (London: The Stationery Office). Hope, D (2005) ‘A Phoenix from the Ashes? Accomodating a new Supreme Court’ 121 Law Quarterly Review 253. Human Rights Act, 2008. http://www.legislation.gov.uk/ukpga/1998/42/contents Retrieved, April 26, 2012. Lord Falconer (2007) HL Deb vol 692, col WS125, 14 June 2007. Montesquieu, C. 1748. The Spirit of Laws. Translated and edited by Anne Cohler et al. New York: Cambridge University Press, 1989. O’Connell v R (1844) 11 Cl & F 155. Office for Judicial Coplaints. “About the Judicial Appointments and Conduct Ombudsman”, Feb 17, 2012. www.justice.jaco Retrieved May 1, 2012. Rylands v Fletcher (1868) LR 3 HL 330 Rhys Lovell (1949) ‘The Trial of Peers in Great Britain’ The American Historical Review, Vol 55, No 1, pp 69-81. Skinner v East India Company (1666) 6 St Tr 710 Slynn, Lord (1999) Submission to Royal Commission on Reform of the House of Lords in Wakeham, Lord (2000) Royal Commission on the Reform of the House of Lords: A House for the Future Accompanying CD to Cm 4534 [CD-ROM] (London: The Stationery Office). Stevens, R (1999) ‘A Loss of Innocence?: Judicial Independence and the Separation of Powers’ Oxford Journal of Legal Studies vol.19 366-402. Stoddart Flemion, J (1974) ‘Slow Process, Due Process, and the High Court of Parliament: A Reinterpretation of the Revival of Judicature in the House of Lords in 1621’ The Historical Journal, XVII, 1 pp. 3-16. Wakeham, Lord (2000) Royal Commission on the Reform of the House of Lords: A House for the Future Accompanying CD to Cm 4534 [CD-ROM] (London: The Stationery Office). Read More