Coursework plan - Discuss whether the UK adheres to the doctrine of separation of powers. Consider PDF

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Discuss whether the UK adheres to the doctrine of separation of powers. Consider whether it matters.
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Public Law Plan The word limit for this essay is 2,000 words. 7-9 References

Introduction- 200 words What is the doctrine of separation of powers? Does it matter? Is it important?

Main body -1,500 words Separation of powers does the uk adhere? Argument for- evidence/research Argument against – evidence/research Other arguments/My argument

Conclusion - 300 words Answer the question... come to a conclusion and make sure its backed up throughout the essay not just in the conclusion Does the UK ADHERE? Yes or no? how far? To what extent?

1. Discuss whether the UK adheres to the doctrine of separation of powers. Consider whether it matters. DISCUSS - Essentially this is a written debate where you are using your skill at reasoning, backed up by carefully selected evidence to make a case for and against an argument, or point out the advantages and disadvantages of a given context. Remember to arrive at a conclusion. CONSIDER- Say what you think and have observed about something. Back up your comments using appropriate evidence from external sources, or your own experience. Include any views which are contrary to your own and how they relate to what you originally thought. ADHERE- believe in and follow the practices of.

Separation of powers- what is it? Discussion in the UK has tended to focus upon whether or not it can be said that the UK’s unwritten or uncodified constitution is based upon a separation of powers. The separation of powers is a doctrine not a legal principle.

Greek Philosopher Aristotle – there are three elements in each constitution in respect of which every serious law giver must look for what is adventurous to it; if these are well arranged, the constitutions are bound to correspond to the differences between each of these three elements. The three are, first the deliberative, which discusses everything of common importance, second, the officials; and third the judicial element. John Locke- drew a distinction between three types of powers; legislative, executive and federative. In Lockes analysis the legislative power was supreme and although the executive and federative powers were distinct, the one concerned with the execution of domestic law within the state and the other with a state’s security and external relations, he nevertheless took the view that ‘there are always almost united’ in the hands of the same persons. The proper exercise of these powers is achieved not through separation but on the basis of trust, the community has entrusted political power to a government.

Montesquieu – When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes you tyrannical laws will execute the tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man, or the same body of principle men, either nobbles, or of the people, exercised these three powers: that making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

Is there separation of powers in the UK constitution? If by separation we mean a strict separation between the three functions or organs of government, legislature, the executive and the judiciary then NO. A separation of powers in the purest sense is not, and never has been a feature of the UK constitution. An examination of the three powers reveals in practise that they are often exercised by persons or bodies which exercise more than one such power. There is a broad overlap between the legislative and the executive in the UK constitution. S2 House of commons disqualification act 1975 imposes a limit of 95 on the number of ministers entitled to sit and vote in the HC. -Lord Chancellor Lord Hailsham- once described the British system of government as an ‘elective dictatorship

OVERLAP between the three functions of government 

Parliament exercises a legislative function and to a lesser extent a judicial function in that it is responsible for the regulation of its own internal affairs.

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Government ministers are members of the executive who exercise a legislative function in parliament and when they make delegated legislation.

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In an addition to exercising a judicial function, courts make law in the sense that they develop principles of the common law

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Government ministers exercise a judicial function when they determine appeals in relation to disputes arising under, for example, town and country planning legislation.

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Magistrates exercise administrative as well as judicial functions in that they grant licences.

“Separation of powers” refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. The principal institutions are usually taken to be the executive, the legislature and the judiciary. In the UK, the powers of Parliament, Government and courts are closely intertwined. In fact, the executive and legislature are seen as a “close union, [a] nearly complete fusion of the executive and legislative powers,” which Walter Baghot viewed as the “efficient secret of the English constitution” the United Kingdom and other common law jurisdictions, however, the theory of separation has enjoyed much less prominence. In the UK, the major offices and institutions have evolved to achieve balance between the Crown (and more recently the Government) and Parliament. The system resembles a balance of powers more than a formal separation of the three branches. The previous Government suggested that, in its reforms of the judiciary in the Constitutional Reform Act 2005, it was moving toward a more formal separation of powers. The creation of an independent Supreme Court and dismantling of the many-faceted office of Lord Chancellor have unpicked some aspects of the fusion of powers. Matters have also been complicated by the Human Rights Act 1998 and its requirement for judges to consider the European Convention on Human Rights and the decisions of the European Court of Human Rights in Strasbourg

Three branches of government keep each other in check, ensuring there is never an over-concentration of power:

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Legislature – Parliament. Their function is to pass legislation.

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Executive – Government. They govern – make policy decisions and enacts legislation of the legislature. Executive power also exists in EU and devolved parliaments/assemblies.

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Judiciary – the courts. Interpret and rule upon legal disputes.

Why embrace the separation of powers?

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Reduces risk of power being abused. Too much power in one person is

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dangerous. “The accumulation of all powers...in the same hands...may justly be pronounced the very definition of tyranny” – James Madison

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Mutually reinforcing democracy.

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Allows different functions to be assigned to those most suited to carry out those functions. Areas of expertise. No conflicts of interest in exercising role.

Conceptions of the separation of powers:

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Pure view envisages absolute independence. No branch has power over another and nobody can be a member of more than one branch.

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In reality there is often some overlap, which may be a good thing. The partial version is justifiably, so long as the breach of the separation is in the interest of the philosophy. The framers of the US Constitution intended that the branches ‘by their mutual relations be the means of keeping each other in their proper places’. Most countries have at least a recognisable partial version of the separation of powers.

Separation of powers in the UK:

• Bagehot: “the close union, the nearly complete fusion, of the executive and legislative powers”

• Some argue that the UK has a ‘fusion of powers’, largely facilitated by executive/legislative overlap:

o Party who makes up government also have a majority in the House of

Commons. They get their legislation through without much scrutiny.

• But if the rationale behind the separation of powers is upheld, it doesn’t really matter if there is no strict separation. So the question really is: is there a sufficient separation of powers so at to prevent abuse of power?

• It’s a balancing act between sufficient separation and enough overlap so as to allow effective scrutiny...