Theoretical for Justification for the Separation of Powers in the British Constitution - Essay Example

In critically evaluating the vera of ments made by “some observers” that “there is no need to even question the adequacy of the constitution, still less to expend energy on proposals advocating fundamental or even partial reforms of its substance1” it is submitted that it is necessary to consider the doctrine of the separation of powers, which underpins the essence of the unwritten British Constitution2. The theoretical for justification for the separation of powers centres on its fundamental importance to the operation of democracy. The principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.3” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely4”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power. As part of this, judicial review of the legality of acts of the executive represents the central method by which courts control exercise of governmental power; which in turn operates as a central underlying facet of the separation of powers. As such, the doctrine of ultra vires is theoretically vital in serving as a testament to the independence of the judiciary in its role under the fundamental constitutional separation of powers in ensuring that public bodies, such as government departments, local authorities, tribunals, agencies have not acted ultra vires5. Moreover, the ultra vires doctrine is cited as the first principle of natural justice and the rule of law that public bodies are required to act within the scope of the powers allocated to them by Parliament6. With regard to the UK position, the doctrine of the separation of powers has traditionally been limited and criticised for being somewhat unclear in comparison to other democracies7. Nevertheless, it has been commented that the doctrine does in fact influence everyday operations of the executive, legislature and judiciary8 and Barnett argues that “Separation of powers…… runs like a thread throughout the constitution of the United Kingdom9.” Nevertheless, in the UK there has not been a clear separation of the branches of the state10, but rather a fusion, which in turn has created polarised debate with regard to the need to reform the British constitution. For example, the executive clearly carries out legislative functions and a prime example is the Law Commission. Although the Law Commission Act 1965 clearly requires the Commission to be “independent11” in reviewing law reform, its committee members are appointed by the Lord Chancellor who also grants prior approval to projects that the Law Commission will review. Additionally, the judiciary obtain their power from the Crown and there is a distinct overlap of functions between the powers, which should be separated for the effective application of the separation of powers12. Indeed, Doctor Yardley asserts that judicial review is “the ultimate safeguard for the ordinary citizen against unlawful action by …….the more powerful administration13”. Alternatively it has been argued that the ultra vires doctrine is inherently limited by enabling a process by which courts scrutinise and consider the validity of the manner in which public authorities have made a decision14. The essence of judicial review is to ensure that public authorities act appropriately in exercising their duty15 regardless of the merits of the decision, which in itself begs the question as to the efficacy of the judiciary’s role under the separation of powers to truly act as a curb on the legitimacy of abuses of power by the executive16. These inefficiencies in the constitutional notion of a separation of powers clearly undermine the statements of “some observers” referred to by Loveland regarding constitutional reform. This is further evidenced by the implementation of the Constitutional Reform Act 2005 (“the Act”) where the Government undertook what was propounded as the “biggest constitutional shake up for years17” intending “to put the relationship between Executive, Legislature and Judiciary on a modern footing, respecting the separation of powers between the three18.” The classic statement underpinning the necessity for separation of powers was made by Montesquieu:19“Again, there is no liberty if the power of judging is not separated from the legislative and the executive20”. However, as mentioned above, the fusion of the Executive and Legislative has undermined the democratic ideal of separation. Nowhere was this more evident than the fusion between Executive and Legislative, where the Executive is drawn from the Legislative, indeed from the leadership of the majority party in Parliament21. Furthermore, the Executive actually sit as members of the central legislative body of the House of Commons, effectively resulting in Executive domination of Parliament22. This is further compounded by the fact that as regards Parliamentary sovereignty, constitutional convention dictates that Parliament has ultimate authority over all affairs of government23, which again undermines the separation of powers. It had been commented that the Lord Chancellor’s role is symbolic of the UK’s uneasy relationship with any notion of separation of powers. The Lord Chancellor’s role was multifarious, ranging from minister,24 Law Lord, head of judiciary25 and a member of the House of Lords in its legislative capacity26. Accordingly, “The traditional British disregard for the separation of powers was personified by the Lord Chancellor”.27 The Lord Chancellor’s role was an instrumental driver behind the Act, the aim of which was to assert the separation of powers as an integral part of the British constitution28. The other instrumental factor was concern that the historical fusion blurring distinctions between legislature, judiciary and executive was potentially in breach of the European Convention on Human Rights (ECHR), which has further brought the issue of constitutional reform to the fore. The Act intended to address this conflict and as Lord Falconer asserted the “overall aim…. is to put the relationship between the Executive, Legislative and Judiciary on a modern footing, respecting the Separation of Powers between the three29”. . Although this curtail in power undoubtedly constitutes a significant improvement as far as the separation of powers in the UK, it remains to be seen how significant this will be as a “constitutional shake up”. This is further highlighted if we consider the 2005 Act. The significant changes resulting from the Act is the creation of the new Supreme Court of the United Kingdom and the introduction of the Judicial Appointments Commission (the Commission), which is now responsible for selecting judges in England and Wales. However, although the Commission is made up of a mixture of professional, judicial and lay members, the presiding Chairman of the Commission is the Right Honourable Baroness Prashar CBE, who is a member of the House of Lords, which raises the same potential problems of fusion of powers discussed above. Furthermore some critics have highlighted other shortcomings of the Act in improving the separation of powers. A. Le Sueur comments as an initial observation that these reforms are robust and lack precision30. As such, Le Sueur argues that this lack of clarity weakens the constitutional basis for the provisions. The inherent difficulty in any “constitutional” reform in the UK is that due to the lack of a written constitution, it is arguable that any such provisions lack constitutional basis31, which further undermines the naïve assertion of “some observers” referred to in Loveland’s statement. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary32. This reasoning suggests therefore that the lack of precise definition regarding boundaries of judicial power, it is effectively impossible to change their powers through constitutional reform33, which again undermines separation of powers. A further lacuna in the Act is the failure to address the “channels of communication” between the three organs of state and in particular the relationship between the judiciary vis-à-vis Parliament and the Executive34. The boundaries, extent and nature of formal communications between the three organs are not addressed anywhere in the Act. Conversely, the concept of the separation of powers implies a principle that the powers of each body should be held accountable to others however this is weakened by the Act’s silence on formal channels of communication between the three35. The Act is clearly a welcome move in recognising the need for the UK to redress the inconsistencies and internal contradictions in the previous application of the separation of powers. The curtailment of the Lord Chancellor’s powers and the reform of the House of Lords was a much needed improvement to the current system of law reform and judicial law making. However, any effective law reform is dependant on effective enforcement. As such, it is questionable whether the Judicial Commission adequately addresses the previous problems associated with the Lord Chancellor’s power. The fact that the Chairman is also a member of the House of Lords is disappointing in light of the purpose of the Act. Furthermore, the Act missed an opportunity to address the “channels of communication” between the three organs and it remains to be seen how far the Act will go to improve the doctrine of the separation of powers in practice. The lack of a written constitution inherently makes any “constitutional” law reform problematic however the importance of the Act in recognising the need to preserve separation of powers must not be undervalued. Moreover, notwithstanding the welcome objectives of the 2005 Act in recognising the need for the UK to redress the inconsistencies and internal contradictions in the previous application of the separation of powers, the inherent difficulty in any “constitutional” reform in the UK is that due to the lack of a written constitution, it is arguable that any such provisions lack constitutional basis36. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary37. This reasoning suggests therefore that due to the lack of precise definition regarding boundaries of judicial power, it is effectively impossible to change their powers through constitutional reform38, which again undermines separation of powers. Additionally, it further highlights the danger of dogmatic assertions that there is no need to even question the adequacy of the British constitution. Conversely, it is submitted that the Act raises issues as to whether Britain needs a wider debate on its constitution in general before it can move forward with an adequate application of the separation of powers. BIBLIOGRAPHY H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Leyland., & Papworth (2006) Textbook on Administrative Law. Oxford University Press. Montesquieu., “The Spirit of Laws” (1748) reported (2002) Prometheus Books, pp.19-28. Lord Steyn in Ministerial Speech, Constitutional reform: strengthening democracy and rights (2004). Le Sueur., A., (2005). Judicial Power in the Changing Constitutions: In Jowell & Olive )(Eds.). The Changing Constitution, Chapter 13. Lord Woolf., (2005). Singapore Academy of Law A, Constitutional Protection without a Written Constitution. Woolf., “The Rule of Law and a Change in the Constitution”. (2004) 63 (2) Cambridge Law Journal. D Woodhouse., “The Office of Lord Chancellor” (1998), Public Law p.607. Constitutional Reform Act 2005 Law Commission Act 1965 Supreme Court of Judicature Act 1875 European Convention on Human Rights. Read More