Discuss whether the UK adheres to the doctrine of separation of powers. Consider whether it matters^ PDF

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1st Class essay on the separation of powers public law...

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K1518667 Discuss whether the UK adheres to the doctrine of separation of powers. Consider whether it matters. The doctrine of separation of powers is simply the three separate branches of government which are the legislature, the executive and the judiciary. These three separate branches of government are meant to represent a democratic constitution by the distribution power which prevents the abuse of power and safeguards freedom for all.1 It has been argued that the separation of powers is vital, although it’s a doctrine and not a legal principle, it is vital due to the nature of the power that one person could potential hold. Montesquieu emphasised that ‘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’2 which highlights the potential danger of one person or body holding and exercising these three powers. The UK in simple terms now has a separation of powers, but the burning question is whether the doctrine is adhered to. This essay will discuss the UK’s separation of powers and whether the UK adheres to the doctrine. The UK constitution is made up of three branches, the legislature, the executive and the judiciary.3 Parliament is the British legislative body and is made up of the House of Commons, the House of Lords and the Monarchy.4 The legislatures key function is to check and challenge the work of the government including government spending, to make and change laws, and to debate the significant issues.5 To adhere to the doctrine of separation of powers there are rules to prevent the intertwining of the three branches as the House of Commons Disqualification Act 19756 prohibits certain categories of people including judges from standing for election to parliament. The judge’s roles are only to interpret legislations in line with the intention of Parliament and to develop common law, not make the law.7 Although there are rules to prevent the intertwining of the branches the executive and the legislature branches are arguable entwined since the Prime Minister and the majority of her Minsters are members of Parliament and sit in the House of Commons8, which highlights that the executive is present at the centre of Parliament. This can easily be argued that there is a lack of separation of power when the two branches are working together and can be influenced by the same bodies from different branches. Interestingly it is seen that the legislature and the executive are a ‘close union and nearly a complete fusion of powers’ which Baghot claims to be the efficient secret of the English constitution.9 This view encourages the idea that there does not need to be a strict separation of powers as the fusion of the legislature and the executive is effective. Locke’s analysis furthermore 1 Dr. Karl Renner-Ring, ‘Parliamentarism explained’ (Republic of Austria Parliament,2015) < https://www.parlament.gv.at/ENGL/PERK/PARL/POL/ParluGewaltenteilung/index.shtml> Accessed 12 March 2017

2 Papworth N, Constitutional & Administrative Law, 9th edn (Oxford University Press, 2016) 19 3 Papworth N, Constitutional & Administrative Law, 9th edn (Oxford University Press, 2016) 20 4 www.Parliament.uk, ‘Parliament and crown’ < https://www.parliament.uk/about/how/role/relations-withother-institutions/parliament-crown/> Accessed 12 March 2017 5 www.parliament.uk ‘Parliaments Role’ < http://www.parliament.uk/about/how/role/> Accessed 12 March 2017 6 House of Commons Disqualification Act 1975 7 House of Commons, 'The Separation Of Powers' (House of Commons Library, 2011) 5 Accessed 12 March 2017 8 House of Commons, 'The Separation Of Powers' (House of Commons Library, 2011 3 Accessed 12 March 2017 9 House of Commons, 'The Separation Of Powers' (House of Commons Library, 2011 2-3 Accessed 13 March 2017

K1518667 encourages the idea that there is no need for a separation of powers as he argues that ‘the proper exercise of these powers are not achieved through separation, but on the basis of trust’10. The executive in the UK is Her Majesty’s government, and is run by the Prime Minister and the cabinet which is made up of Ministers. There are currently 120 Ministers in the UK and they are chosen by the Prime Minister from the House of Commons and the House of Lords.11 The executive is responsible for all policies and decisions and they oversea the operation of the civil service and government agencies.12 The doctrine of separation of powers is not adhered to within the executives role, as the executive as mentioned in the previous paragraph is fused with the legislature as the Ministers chosen by the Prime Minister are from the House of Commons and House of Lords, which are part of the legislature branch. Clearly there is not a strict separation of powers between the legislature and the executive branch, however, s2 House of Commons Disqualification Act 197513 enforces a limit of 95 on the number of Ministers that are entitled to sit and vote in the House of Commons. 14This could be argued that this limit is set to ensure there is a clear separation of powers, however, 95 ministers is a large number with a potential large impact, which highlights that the UK does not adhere to the doctrine. Lord Hailsham once described the British system of government as an ‘elective dictatorship’ which highlights the limit of Minsters under s215 is too high and he concluded that the British constitution is ‘wearing out’.16 His Lordship also argued that the British constitutions ‘central defects consist in the absolute power we confer on our sovereign body, and the concentration of those powers in an executive government formed out of one party’17 which could demonstrate that the one party of government that holds the executive power is too concentrated, meaning they have too much power when concerning the legislature branch. The role of the judicial branch in the UK is to interpret the law and rule upon legal disputes. This branch is carried out by the courts in the UK and there is meant to be a strict separation of powers as the courts role is to only interpret the law not to make the law. However, there has been crucial cases whereby the courts interpreted the law and then changed the law as seen in R v R [1991]18. This case highlighted the House of Lords changing the law to make matrimonial rape illegal. Lord Denning J also established the doctrine of promissory estoppel in the case of Central London Property Trust Ltd v. High Trees House Ltd [1947]19 which developed the law. The Constitutional Reform Act 200520 helped encourage the independence of the judiciary by creating the Supreme Court and removing the House of Lords from the judiciary. Therefore, the House of Lords role now regarding the law is just to make the laws and draft bills, it is not their role to interpret the law through courts. The Reform Act21 demonstrates the UK adhering to the doctrine of separation of powers as the 10 Papworth N, Constitutional & Administrative Law, 9th edn (Oxford University Press, 2016) 19 11 Gov.uk, ‘How Government Works’ < https://www.gov.uk/government/how-government-works> Accessed 13 March 2017 12 Gov.uk, ‘How Government Works’ < https://www.gov.uk/government/how-government-works> Accessed 13 March 2017 13 House of Commons Disqualification Act 1975, s2 14 Papworth N, Constitutional & Administrative Law, 9th edn (Oxford University Press, 2016) 20 15 House of Commons Disqualification Act 1975, s2 16 Richard Dimbleby, ‘Lord Hailsham: Elective Dictatorship’ (BBC, 1976) Paragraph 20, BBC (Lord Hailsham: Elective Dictatorship, 1976) < http://www.bbc.co.uk/programmes/p00fr9gh > Accessed 13 March 2017 17 Richard Dimbleby, ‘Lord Hailsham: Elective Dictatorship’ (BBC, 1976) Paragraph 20, BBC (Lord Hailsham: Elective Dictatorship, 1976) < http://www.bbc.co.uk/programmes/p00fr9gh > Accessed 13 March 2017 18 R v R [1991] 3 WRL 767 19 Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130 20 Constitutional Reform Act 2005 21 Constitutional Reform Act 2005

K1518667 judiciary has been made more independent, which highlights that there was an issue with the fusion of the legislature and the judiciary which has now been separated. Interestingly the argument of how far and to what extend is the judiciary independent arises, as the courts make law as they develop principles, which is not meant to be their role and the Minsters carry out judicial functions as they determine certain appeals. This returns to the argument that the UK does not fully adhere to the doctrine. Montesquieu contends ‘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’22. This demonstrates that there is no democracy or freedom if the branches work together and have concentrated powers when judging society, this is described by Montesquieu as very dangerous and oppressive. The doctrine of separation of powers is there to prevent the abuse and concentration of power by one party or a single body, however, Michael Gove had concentrated power as he had interests in all three of the branches that make up the UK’s constitution. Michael Gove was once the Lord Chancellor, head of the judiciary and was a speaker of the House of Lords; this clearly does not represent the doctrine of separation of powers and certainly does not demonstrate that the UK adheres to the doctrine as they allowed a single person have concentrated power and the abuse of that power could have been tyrannical.23 The Constitutional Reform Act 200524 was introduced to reform the relationship between the judiciary and the other branches of government as the concern about the relationship was a shared consensus, and the fact that Michael Gove had interests in all three of the branches was regarded as a potential source of abuse of executive power.25 Although it can be described as a potential danger it allows me to return to the analysis of Locke who argues ‘the proper exercise of these powers are not achieved through separation but on the basis of trust’26 which could offer an explanation as to why Michael Gove had interests in all three branches, because he was trusted not to abuse the concentrated power he had, which allows the argument that the proper exercise of these powers are not based on the doctrine of separation. The Constitutional Reform Act27 revised and reformed the way the roles in each branch are carried out as the Supreme court was created, the Lord Chancellors role of being responsible for the functioning and independence of the court was transferred onto the Lord Speaker and the Lord Chief Justice and finally a cabinet position of secretary of state was created to replace the Lord Chancellor executive role. It could be argued that the Constitutional Reform Act28 allowed the UK to adhere to the doctrine of separation of powers due to the drastic changes it made to tackle the criticism of the concentrated powers and relationships between the branches. It is argued that the reform of the Lord Chancellor's role separated different responsibilities and made a clear distinction between the government, Parliament and the judiciary’29 This statement made by the official Parliament website reinforces the idea that the UK does adhere to the doctrine as an issue was seen and 22 Charles de Secondat Montesquieu and Thomas Nugent, ‘The Spirit of Laws’ 1st edn (Batoche Books, 2001) 173 23 Charles de Secondat Montesquieu and Thomas Nugent, ‘The Spirit of Laws’, 1st edn (Batoche Books, 2001) 173 24 Constitutional Reform Act 2005 25 Kate Malleson, ‘ The effect of the Constitutional Reform Act 2005 on the relationship between the Judiciary, the Executive and Parliament’ (www.parliament.uk , 2007) Accessed 14 March 2017 26 Papworth N, ‘Constitutional & Administrative Law’, 9th edn (Oxford University Press, 2016) 19 27 Constitutional Reform Act 2005 28Constitutional Reform Act 2005

K1518667 addressed, yet it could be argued it was not address promptly enough. Aristotle30 claims that if the branches are ‘well arranged, the constitutions are bound to correspond to the differences between each of these three elements’ which highlights that the branches can complement each other if they are well arranged, which potentially the Constitutional Reform Act31 has provided. It has been argued throughout this essay that the UK does adhere to the doctrine of separation of powers as the constitutional Reform Act changed and revised the way the constitution was being run by making effective changes within the three branches. However, the changes made were not made promptly even though there was concern of the fused relationships between the branches. The UK has not strictly adhered to the doctrine since the roles of the legislature and the executive are often viewed as merged and the judiciary hasn’t fully got its independence as the doctrine would set it out to be. The previous Lord Chancellor Michael Gove was part of all three of the branches which demonstrates the concentration of power which the separation of powers doctrine is there to prevent, yet in the UK it did not prevent this because it was not being adhered to properly. There have been many arguments highlighted throughout this essay regarding whether the separation of powers is vital for a functioning democratic constitution or whether there really isn’t any need for the separation if it could be based on trust. Whether or not the UK adheres to the doctrine the real question is whether it matters. It could be argued that it entirely matters for a democratic constitution to function, whereas on the other hand others may argue that it does not impose a threat if there is a foundation of trust that the branches work from. It is almost impossible to determine whether the doctrine of separation of powers in the UK’s constitution is an efficient secret or an elective dictatorship; it could very easily be argued that is it both and that’s why it functions with minor complications.

Bibliography Acts Constitutional Reform Act 2005 29 www.Parliament.uk ,’ The Lord Chancellor’ > http://www.parliament.uk/about/mps-andlords/principal/lord-chancellor/> Accessed 14 March 2017 30 Papworth N, Constitutional & Administrative Law, 9th edn (Oxford University Press, 2016) 18 31 Constitutional Reform Act 2005

K1518667 House of Commons Disqualification Act 1975 Books Montesquieu C and Nugent T, The Spirit Of Laws, 1st edn, (Batoche Books 2001) Papworth N, Constitutional & Administrative Law, 9th edn (Oxford University Press, 2016) Cases R v R [1991] 3 WRL 767 Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130 Command paper House of Commons, 'The Separation Of Powers' (House of Commons Library, 2011) 5 Accessed 12 March 2017 Podcast BBC (Lord Hailsham: Elective Dictatorship, 1976) Accessed 13 March 2017 Lecture Dimbleby R, 'Lord Hailsham : ‘Elective Dictatorship' (BBC, 1976) Websites Kate Malleson, ‘ The effect of the Constitutional Reform Act 2005 on the relationship between the Judiciary, the Executive and Parliament’ (www.parliament.uk , 2007)

Accessed 14 March 2017 Dr. Karl Renner-Ring, ‘Parliamentarism explained’ (Republic of Austria Parliament,2015) < https://www.parlament.gv.at/ENGL/PERK/PARL/POL/ParluGewaltenteilung/index.shtml> Accessed 12 March 2017 Gov.uk, ‘How Government Works’ < https://www.gov.uk/government/how-governmentworks> Accessed 13 March 2017 www.Parliament.uk ,’ The Lord Chancellor’ > http://www.parliament.uk/about/mps-andlords/principal/lord-chancellor/> Accessed 14 March 2017 www.Parliament.uk, ‘Parliament and Crown’ Accessed 12 March 2017 www.Parliament.uk ‘Parliaments Role’ < http://www.parliament.uk/about/how/role/> Accessed 12 March 2017...