This doctrine of the separation of powers

February 23, 2019 February 25th, 2019 Human Rights

This essay will critically analyse whether the status of the doctrine of the separation of powers has been affected by the implementation of the Constitutional Reform Act 2005 . It will do this by exploring the development of the doctrine of the separation of powers within the British Constitution, discussing the overlap of power between the three organs of state, examining the separation of powers’ relevance for questions of constitutional reform in the United Kingdom, and will ultimately determine whether the reforms implemented by the Constitutional Reform Act of 2005 has affected the status of the doctrine of the separation of powers.
The doctrine of the separation of powers suggests that power within a state should be organised and distributed between its principal organs of state – legislative, executive and judiciary, making them functionally independent. Although an unwritten constitution, the first limitation of power in Britain can be identified within the written instrument of the 1215 Magna Carta . This introduced the abolishment of absolute monarchy through the establishment of a body that was able to scrutinise the King’s power and enforce the law against him, paving the way for the concept of separation of powers in the UK. Further development of the theory of separation of powers started in the seventeenth century with John Locke suggesting power should be separated in three ways: legislative power, executive power and federative power . Locke suggested that legislative power is supreme and should have ultimate authority over “how the force for the commonwealth shall be employed.” A further development of the doctrine of separation of powers is provided by Montesquieu in The Spirit of Law, stating that ‘there can be no liberty’ if ‘the powers of judging is not separated from the legislative and executive.’ Furthermore, Montesquieu suggests that a separation of powers is needed to prevent tyranny, which was seen before the implication of the 1215 Magna Carta.
A strict separation of power suggests that there should not be an overlap of power; no one should exercise the same powers nor be a member of any two of the branches. A constitution which adheres closely to this notion of a strict separation of powers is the United States. For example, article I grants power to the legislature, composed of the House and Senate; article II grants executive power to the President, Vice President and the Departments; and article III grants power to the judiciary, composed of the federal courts and the Supreme Court. However, many countries instead opt for a compromise of powers, choosing to instead share functions between the three organs of state. In the UK, legislative powers, comprising the Crown, the House of Commons and the House of Lords; executive powers, comprising the Crown and the Government, including the Prime Minister and Cabinet ministers; and judicial powers, comprising of the judges within the courts, are intertwined . Walter Bagehot describes the English Constitution’s separation of powers as a “close union, a nearly complete fusion of the executive and legislative powers,” further praising it as the “efficient secret of the English Constitution.”
The unification of executive and legislative powers within the UK constitution has been described as “a system that intentionally promotes efficiency over abstract concerns about tyranny.” For example, in comparison to a president in a presidential system of government like the United States, the Prime Minister is usually both head of the executive branch and leader of the majority party in the legislature, giving the executive branch more freedom of action. Additionally, Parliament may allow the Government to extend their power through delegating law making powers through the ability to draft secondary and delegated legislation if the existing Act of Parliament allows it. In doing so, this enables Parliament to be free from having to scrutinise small technical details, while maintaining the safeguard of their approval. In this way, the UK legislature and executive branches are not strictly separate powers. On the other hand, having an executive existence in legislature in the UK could potentially enable scrutiny, provided the necessary procedures are in place. For instance, Question Time allows the executive to be held accountable to Parliament through open debate, providing a system of checks and balances.
Procedures must be in place to ensure that the executive cannot dominate the legislature into enacting its proposed legislation without being properly scrutinised. In 1975, the House of Commons (Disqualification) Act was introduced to prevent the executive from having full power over Parliament by creating limits on the number of paid ministers who sit in the House of Commons. Additionally, other procedures in place include: the formal power of the legislative to dismiss executive officers from office and the convention of ministerial responsibility which establishes that the government is accountable to Parliament. One of the more recent aspects demonstrating further the need for implementation of procedures to prevent the executive’s control over the legislature in the UK constitution is the allocation of time for debates. In 2010, the Backbench Business Committee was introduced to allow the legislature more independence from the executive. The Wright Committee believed that the Backbench Business Committee would allow MPs more control over the Parliamentary agenda, make debates more relevant for the public and strengthen the role of scrutiny for Select Committees by introducing an application for time on the floor of the House through the Backbench Committee. Thus, these procedures enable a weak separation of powers by preventing one branch from having absolute power over the other whilst still allowing them to be entwined.
Secondly, the doctrine of separation of powers suggests that there should be a separation between legislature and judiciary. In the UK, this notion is adhered to through the House of Commons (Disqualification) Act 1975 which states that Judges are not allowed to be elected to Parliament. Judges are responsible for interpreting the legislation provided by Parliament, however they also are responsible for developing their own judge-made law known as common law through judgements handed down in court. Although this suggests an overlap of power, there is a distinct separation between judicial and legislature as they may not challenge the validity of Parliamentary Acts, held in Pickin v British Railways Board , making the judiciary subordinate. Furthermore, as per Lord Diplock in Duport Steels Ltd v Sirs , ‘…Parliament makes the law, the judiciary interpret them… it is for Parliament, not the judiciary, to decide whether any changes should be made to the law as stated in the Act…’ However, there remains some ambiguity as to whether judges are in fact able to make law due to the apparent leeway for judges to interpret statutes .
The judiciary can make laws under three circumstances: interpretation, ‘filling in the gaps’, and common law. In Magor and St. Mellons Rural District Council v Newport Corporation , Lord Denning stated that gaps within legislation should be filled by the courts. This was rejected by the House of Lords, with Lord Simmonds suggesting this would lead to a “naked usurpation of the legislative function under the guise of interpretation.” Contradictory, Lord Reid in his lecture, The Judge as Lawmaker, stated that while it was once “almost indecent” to suggest judges involvement with law making, the notion that they simply declare the law is outdated. On the other hand, however, Lord Scarman responded that “the objective of judges is the formulation of principles; policy is the prerogative of Parliament.” More recent judgements on the overlap of power between the legislature and the judiciary suggest that it is more of a cooperation between the branches. Lord Woolf, for example, argued that “the crown’s relationship with the courts does not depend on coercion”, but on a state of trust. Furthermore, Professor Bogdanor suggested that the Human Rights Act, for example, needed a compromise between two doctrines – the sovereignty of parliament and the rule of law – and that the compromise “depends upon a sense of restraint on the part of both the judges and of Parliament.”
(add to judicial/executive – separation of powers) Judicial review is one of the checks and balances in the separation of powers. The concept of judicial review is explained in the Civil Procedure Rules, stating that “(a) a claim for judicial review’ means a claim to review the lawfulness of – (i) an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function.” This means that it enables the judiciary to review the process of decision making within the legislature and the executive branches in order to determine whether they are fair, just and reasonable. This makes sure that the branches do not exceed their power.

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