Separation of Powers

The Separation of Powers is a fundamental constitutional principle in the UK. This idea dated back to Ancient Greece where they believed that powers to function the state should be spread over different bodies to ensure that no one gained too much power. This was developed over time, where the French Philosopher Montesquieu further advanced the concept into the 3 bodies of state; the Executive, the Legislature and the Judiciary.

Role of each Branch of State

The Legislature is responsible for the creation of Laws. This consists of Parliament who are divided into 3 bodies; the House of Commons (who is elected every general election), the House of Lords (who is made up of Life Peers, some Hereditary Peers and even some Arch Bishops), and the Monarch.

The Executive is a wide collection of bodies and must enforce and uphold the law. This is made up of any public body. This can include the Police, the NHS, the Armed forces, and most importantly the Government and Prime Minister.

The Judiciary is made up of the Court system, and Judges. Their job is to enforce and interpret the law and ensure that the aims of the Parliament are met.

 

Why have a Separation of Powers?

This concept rises from the idea that all power should not be vested in 1 body or person. By separating the functions of the state, it provides a protection from any 1 body getting too much power, resulting in tyranny. It also allows each branch of state to act as a check and balance on each other’s power to avoid abuse.

 

Why the UK does not have a true Separation of Powers

The UK has been highly criticized over time because of the soft use of separation of powers. The main areas in which the UK have overlaps of branches are as follows:

  • The monarch is the head of all 3 branches of state
  • The Prime minister, and many members of his cabinet (Government) have seats in the House of Commons, some may even sit in the House of Lords.
  • The Judges can be said to take the role of the Legislature and create law.

Because of these main areas of overlap, it may be said that the UK is left vulnerable to an abuse of power. As Lord Nuremburg stated, which has been the view taken by many, is that the UK is an elected Dictatorship.

 

Possible Problems with the Overlap

First, I shall address the issue of the Monarch being head of all 3 states. As some may argue, this is completely against the idea of democracy. The head of state should be elected, and that the Prime Minister has more grounds to be head of state rather than the Queen. Whilst this is true, and on the face does not seem democratic, the Monarch’s role is purely ceremonial. Their powers have been eroded ever since the Magna Carta 1215 and Bill of Rights 1689, to a point where the Monarch although technically has the power to influence… does not. If they attempted too exercise this power their position would simply be taken from them. Therefore, by Convention, they will always e.g. give ascent to the Legislation passed through the Houses of Parliament, and let the Prime Minister issue declarations of war, and all the other powers the Monarch used to have.

The Main, and perhaps more worrying overlap is that between the Parliament and the Government in regards the Prime Minister and its Cabinet. The Prime Minister is appointed by the Monarch due to the position of head of the political Party who wins the majority in the HOC each General Election. From there, they will then appoint their Cabinet who make up the Government. This means that the Government will be able to pass aby laws they wish through Parliament as they will always have majority. A law will only ever need over 51% the votes to be passed. This Accompanied by the ‘Parliament Supremacy’ gives the Government a lot of power. This links back to, and the reason why Lord Nuremburg called the UK an Elective dictatorship.

On the other hand, there are many ways in which Parliament can be argued to be limited. However, that will be discussed when looking at Parliamentary Sovereignty in further detail. The main point here is that regardless of how powerful Parliament are, that the Government have a lot of control and influence over the lawmaking body of the UK, which the Separation of powers does not permit.

The Judiciary is also argued to be crossing the boundary into the Legislature. Due to the nature of the Judiciary, they must interpret the legislation that is given to them by Parliament. This interpretation can be said to be going beyond the powers they have been given and that they would interpret the legislation word for word. The use of the Purposive Approach and the Golden rule, when interpreting statute, has gone beyond their powers. Therefore, they should interpret word for word- the Literal Rule. However, this will lead to injustices and inevitably infringe the Rule of Law… the other constitutional principle that the Judiciary live and die by. The UK courts are also instructed to do this in to give rise to EU and ECHR law.

The Common law, or Case law system that the UK has also adopted can also be argued to cause an overlap between the Judiciary and the Legislature. The Judiciary by use of case law and a system of precedent actually creates law, in a more narrow and defined way than legislation does. It often fills in gaps and develops areas which has little legislation to govern it. Some may argue this is the job of the Legislature.

On the other hand, it may be argued that Parliament is so busy and by allowing the Courts to create legislation in a narrow way, aids the development of the law. It also does not infringe on the law-making power of the Parliament as they can legislate on the matter after the case law if they see fit, and the Judiciary by useing such interpretation as the purposive approach, looks at Parliaments original intention.

 

 Checks and Balances

 A previously mentioned, each branch of state has a check and balance on each of the other’s power to ensure no one branch extends their own power beyond what is acceptable.

Judiciary over Executive Powers

  • Judicial Review- keeps in check Public Bodies that have received rights to make decisions/ create subordinate legislation on certain matters. Executive cannot refuse to be reviewed by way of ouster clause- Anisminic.
  • Can also apply EU Law (Until Brexit goes through) as EU law is Supreme.
  • ECHR law can be applied so far is it possible to government bills. If it is incompatible, a Section 4 HRA Declaration of Incompatibility will be issues which although it not binding, has a lot of influence. All of DIC’s issued have been resolved apart from Hirsh- regarding prisoners voting rights.

Judiciary over Legislative Powers

  • Interpret the legislation using the Golden rule and the Purposive Approach, which is arguable as to how far this is infringing the SOP as it is still their intention, but it is not following what is written in statute provided by them.
  • Can also apply EU Law (Until Brexit goes through) as EU law is Supreme.
  • ECHR law can be applied to all legislation so far is it possible to so- Section 3 HRA. If it is incompatible, a Section 4 HRA Declaration of Incompatibility will be issues which although it not binding, has a lot of influence. All of DIC’s issued have been resolved apart from Hirsh- regarding prisoners voting rights.

Executive over Legislative Power

  • Usually, unless a coalition Government is in place, have majority over in the House of Commons.
  • Salisbury convention leaves the HOL limits their ability to refuse or delay a Government Bill.
  • Legislation can be delegated (via an Enabling Act) to their ministers to control things such as financial legislation which need to be passed quickly.
  • Ability to pass emergency legislation

Executive over Judiciary Powers

  • Constitutional Reform Act 2005 limited the power that the Executive used to have over the Judiciary. For example, the Secretary of state used to appoint judges. After this act, the Judicial appointments committee does this now.
  • Royal Prerogative- it is a wide concept and power. Judiciary cannot make rulings on whether their decision was correct, only if the prerogative power extended so far as to exercise it on that matter. E.g. Miller case in regard to Brexit being a prerogative power or not. It ruled that it was not as the UK entered the EU through Parliament, and therefore must be repealed through Parliament.

Legislative over Executive Powers

  • PM is accountable to Parliament.
  • Prime Ministers Questions allows ministers to challenger government
  • Scrutinize Government Bills during the legislative process.
  • Vote of no confidence- where the HOC vote down the Prime Minister and a reelection will be called. In 1979, James Callaghan was Prime Minister and was voted out, which is the last time this occurred.

Legislative over Judiciary Powers

  • Create statutes for the judiciary to follow.
  • Parliamentary Supremacy- no one can invalidate their legislation- Enrolled Act Rule.

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