Separation of Powers

Introduction

There exists no absolute doctrine regarding the separation of powers in the UK’s constitution, owing to the fact that there are overlaps in the roles that the state organs play and the personnel that operates within them. In this regard, the UK significantly relies on a checks and balances system, in order to prevent any form of power abuse. The constitutional Reform Act 2005 presented the reason why practical, as well as legal operations of the separation of powers doctrine were given effect and also clarity Notably, the primary objective of the Act is to obtain a distinct separation of various functions, and also personnel between the judiciary, the establishment of the Supreme court, as well as the legislature. Clearly, this has been done by the establishment of the Supreme Court in the UK, in order to replace the House of Lord’s appellate committee and also by removing the Lord Chancellor from judicial processes. Generally, the concept of separation of powers is linked to the UK alongside other executive bodies. Recently, the concerns associated with separation of powers are included in the UK constitution and as such, they have been adopted an as integral part of the UK legal system. Mostly, it is observable that separation of powers is regarded as a counterstroke that relates to fair practices in the UK government. As such, for that reason, it is regarded that apparently, there have been efforts, which exert the limit on power concentration by any government branch and this often poses as a serious issue.

Features of Separation of Powers

Aristotle in ‘The Politics’: “There are three elements in each constitution in respect of which each serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to be the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.” The Judiciary, Executive, and the Legislature, are the three organs of the United Kingdom’s Constitution, to which are all equal to one another. They hold the same level of power, but most importantly, the three organs are the ideal Separation of Powers within the United Kingdom’s unwritten Constitution. The aforementioned three organs that form the UK’s unwritten Constitution are equal to each other. However, the Separation of Powers between the three organs of the UK’s Constitution have a duty of care to act as a check and balance on one another, which satisfies the exercise of the fundamental principle of the Separation of Powers which is embedded within the Constitution as a Rule of Law. The Rule of Law was popularized in the 19th century by I.V Dicey. Aristotle’s quote in ‘The Politics,’ reflects the importance of the United Kingdom’s unwritten Constitution, maintaining a well balanced and arranged function to prevent corruption and an increased opportunity for fairness.

Judicial Checks and Balances: Ineffectiveness of separation of powers

Lord Acton famously stated: ‘Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you add the tendency or the certainty of corruption by authority’ - Letter to Bishop Mandell Creighton, April 5, 1887. Additionally, in the case of Miller v Boris Johnson 2019, a recent example of how the Separation of Powers were functioned, where the Judiciary intervened over to the Executive in order to check and balance of the other powers; the Executive. The Separated Power of the Judiciary, who scrutinized the unlawful act of the United Kingdom’s Prime Minister ‘Boris Johnson’, who unlawfully suspended Parliament as he tried to exceed his powers, according to the Parliament Act 1911.

In addition to the above, Lady Hale, president of the United Kingdom’s highest Court, noted that the UK constitution is various ways, fails to conform to separation of powers, and this can even be seen when the Prime Minister blatantly breached his powers. She said: “The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification. This was not a normal prorogation, it prevented parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31 October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme. No justification for taking action with such an extreme effect has been put before the court.” Lady Hale emphasized on the unlawful act that Boris Johnson carried out by suspending Parliament, to which he acted outside of his powers. The unlawful act conducted by the Prime Minister prevented the UK’s Constitution from functioning reasonably within its role and responsibility, to which is also a neglect to the publics’ interest.

Lord Acton’s famous quote refers to the recognition that “…great men are almost always bad men…” Lady hale, President of the United Kingdom’s highest Court who hold separated powers in Lady Hales’ field of the judiciary, recognised that Boris Johnsons’ actions for suspending parliament was entirely unlawful and therefore, it was the Judiciary’s caring duties, to ensure checks and balances on the Executive on this occasion. In the case of Millar v Dickson 2002, per Lord Hope of Craighead stated that: “Central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be, independent of the executive. Notably, Lord Fraser of Tullybelton identified security of tenure and immunity from suit as the two most important ways of ensuring that judges perform their duties impartially and without fear of the consequences.”

Lord Hope, emphasises the importance of the Judiciary’s power to the Executive; Separation of Powers seen at its best in the case of Miller v Boris Johnson 2019.

The Constitutional Reform Act 2005 enhances the Separation of Powers by ensuring the judicial appointments are clear, explicit, and accountable, while the role of the Lord Chancellor came to an end. The Rule of Law relies massively on the Separation of Powers as it was seen again in the case of Miller v Boris Johnson 2019, when the Judiciary applied their Separated Powers to check and balance the Executive. In reference to the Lord Chancellor’s role ending, while ascertaining the advantage of the Lord Chancellor becoming a member of the Executive. Lord Woolf explains in ‘Judicial Review; The Tensions between the Judiciary and the Executive’ 1998 as follows:“As a member of Cabinet, he can act as an advocate on behalf of the courts ... He can explain to his colleagues in the Cabinet the proper significance of a decision which they regard as being distasteful. As long as the LC is punctilious in keeping his separate roles distinct the separation of powers is not undermined….” Moreover, John Locke states the following: “…it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to also have the power to execute them.” Ensuring a robust functionality of the separation of powers, checks and balances of one another, which prevents or decreases the risk of a corrupted constitution, which therefore, leaves room for consistency and fairness.

A sophisticated system of checks and balances between the three organs (the Executive, the Legislator, and the Judiciary) and by the monarch over each of them, is a significant practice in which disciplines the powers separately. The Legislator is responsible in changing or creating new laws in which thinks that fits right for the country, for example, the Theft Act 1968. The Executive is responsible in ensuring to administer the laws of the United Kingdom in accordance with the Parliament Act 1911 and 1949. On the other hand, the Judiciary is responsible for the interpretation of laws created by the Legislator, and ensures that they have been implemented and obeyed, for example, when a case-law is brought to a court before a judge, as shown in the theft case of R v Maughan (John Patrick) 2019. The Judiciary has a duty of care to ensure that laws have been interpreted and obeyed, therefore, the it has the power if necessary, to step into other territories for checks and balances, such as, the Executive, as recognized in the case of Miller v Boris Johnson, to ensure laws have been implemented and obeyed accordingly, irrespective of human rank, which is the fundamental function of the Separation of Powers. John Locke’s statement recognises the importance of consistency and fairness within the Constitution.

In the case of R v R (1991), The House of Lords overturned the long-standing time of immunity from the law of rape. Parliament redefined the meaning of rape in statute since it was identified that new errors within new arising circumstances of how rape could be committed even in a marriage. R v R (1991) is a case that clearly demonstrates the separated powers in motion, when Parliament who intervened to adjust historical laws accordingly and more morally, moving forward and evolving with the times. Burmah Oil v Lord Advocate (1965), recognised where the Legislator checks the Judiciary as their caring duties under the principle of Separation of Powers. The Legislator overturned the decision of the Judiciary for ordering compensation to be paid for the disarrangement of property committed by British troops in wartime. Additionally, in the case of R (Nicklinson) v Ministry of Justice (2014), The Judiciary rejected to allow a Declaration of Incompatibility in reference to the Suicide Act 1961 on the basis that it was for Parliament to decide the matter first, and weather to issue it or not. The Judiciary demonstrated their integrity and ascertained that it was the responsibility of Parliament to check and balance as to whether they were able to consider the issue. In the case of A and others v Home Secretary 2005, Lord Bingham states: “…It is also of course true … that Parliament, the executive and the courts have different functions. However, the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. …”

Lord Phillips from the Supreme Court states in the Press Notice 01/09, noted the following: “For the first time we have a clear separation of powers between the Legislature, the Judiciary and the Executive in the UK…. It emphasises the independence of the judiciary, clearly separating those who make law from those who administer it.” In reference to Lord Philips statement, he emphases that clear separation of powers increases faith within the legal system. He noted that this is because all three powers are on the same level and responsible for their own fields, and at the same time, they are able to intervene in other territories of powers of the same level. This is to ensure fairness, interpretation and accountability of legal justification and application functions appropriately within the UK’s unwritten Constitution, and within the principles of the Rules of Raw.

Conclusion

The conclusion is that the Separation of Powers relies on the Rule of Law and the Rule of Law also relies on the Separation of Powers. It functions positively and vice versa within the UK’s constitution, while Separation of Powers prevents the risk of corruption as opposed to allowing one man’s greed rule the land unfairly. Separation of Powers was established since 1958 and increased its importance within the constitution since the bill was approved; The Constitutional Reform Act 2005, since then, the Separations of Powers has never failed the system, as it was recently recognised in the case of Miller v Boris Johnson 2019. The Separation of Powers is a model within the UK’s unwritten Constitution that works as an audit to check and balance of the other powers of organs; Executive, Judiciary and Legislature. The higher number of men and women who are involved in the Separation of Power, makes it even harder for one to corrupt.

Bibliography

Books/Sources/Journals/Articles

• Cosgrove, R. A. (2017). The Rule of Law: Albert Venn Dicey, Victorian Jurist. UNC Press Books.
• Grace, J. (2019). A Judgment on the Unlawful Prorogation of Parliament. Available at SSRN 3481673.
• Lord Acton famously stated in his letter to Bishop Mandell Creighton, April 5, 1887. Retrieved from https://history.hanover.edu/courses/excerpts/165acton.html [accessed on 21st Dec, 2019].
• Lord Phillips from the Supreme Court states in the Press Notice 01/09. Retrieved from https://lawpundit.wordpress.com/2009/10/19/ [accessed on 21st Dec, 2019].
• Mulgan, R. G. (1987). Aristotle's political theory. Clarendon Press.
• Woolf, L. (1998). Judicial Review-The Tensions between the Executive and the Judiciary. CLaw Q. Rev., 114, 579.