Separation of Powers UK
This essay will seek to analyse the doctrine of the separation of powers and the importance of its presence within a constitution. Particular emphasis will be placed on identifying how this idea is incorporated into the United Kingdom’s (UK) constitution and the effect that recent developments of constitutional reform such as the introduction of the UK Supreme Court in place of the House of Lords has had. The doctrine of the separation of powers is an idea that can be seen in writings as far back as the time of Aristotle.
This concept states that any constitution relies on the ‘three pillars of state’ which are the executive, legislative and judiciary. Montesquieu formulated this concept in the eighteenth century and in ‘L’Esprit des Lois’ wrote; “All would be lost if the same man or the same body of principle of men, either of nobles, or of the people, exercised these three powers: that of making laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.
” Montesquieu’s writing sums up the idea that if in any constitution at one time, more than one of these powers are controlled by the same ‘man’ or ‘body of men’ then the power instigated becomes arbitrary and to effect a dictatorship. These three powers can be seen within the UK’s constitution, the Government (executive), Parliament (legislature) and the Courts (judiciary). The UK has been criticised suggesting that there is no separation of powers within our constitution due to its un-codified and thus unclear nature making it hard to establish three independent bodies.
This was the case for a number of reasons; firstly within the UK there are overlaps between the so called ‘powers of state’ an example of this is the set-up of government. Members of the Prime Ministers Cabinet are also Members of Parliament who have executive powers aside being able to vote in parliament, that in turn creates a direct overlap between executive and legislative powers. This can be seen as recently as this year with members of the Cabinet like Deputy Prime Minister Nick Clegg having executive powers whilst being able to vote in Parliament on the Tuition Fees Bill 2010.
The courts also appear to exercise legislative functions along with their judicial roles through means of the common law. Judges for years have been creating and changing laws as they see fit and still to this day have the power to make binding precedents. However, the position of Lord Chancellor was regularly criticised as it held presence in all three of the ‘pillars of state’. It would appear from this that indeed the United Kingdom does not exercise the concept of separation of powers. In February 2004 the House of Lords introduced what was eventually to be The Constitutional Reform Act 2005 .
This act looked to tackle two of the perceived main criticisms of the UK constitution namely the role of Lord Chancellor and to bring in a Supreme Court to take over the role of the appellate committee of the House of Lords in the judiciary as prior to this members of the House of Lords were members of both the legislature and the judiciary. The Supreme Court of the United Kingdom was thereby opened in 2009 however; it would appear questionable as to whether it has really brought around a separation of powers.
If a logical approach is taken then this introduction of a new chamber has made a big change to the constitution as no longer would it be possible for law lords to sit in the judiciary and vote in parliament however, if we take an alternative view then the Supreme Court has not really changed anything within the UK’s constitution. Due to the unwritten format of our constitution it is known that many laws and procedures that countries such as the USA (who possess a written constitution) have backed up by the documented constitution itself, we very much rely on the role of convention, habit and tradition to hold the three powers in check.
It has very much been convention that from before 2006 the law lords that sit in the appellate committee of the House of Lords refrain from sitting in political matters whereas; members of the Lords who exercise political functions do not participate with any matters of the judiciary. True, the introduction of the Supreme Court has made it impossible for the legislative and judicial powers to be fused as members appointed within the Supreme Court will no longer be members of the House of Lords thus making this house of Parliament solely legislative.
Perhaps a more important development is that future members of the Supreme Court need not even be peers which could in time sever any link between the two chambers. The act also placed restraints on the role of the Lord Chancellor that have met the same feeling as that of the Supreme Court, whilst yes these changes are positive, the question remains were they necessary? The introduction of the UK Supreme Court is a positive step to incorporate not only more written sources to the constitution but towards properly establishing a separation of powers within the UK.
However, it can be suggested that a more appropriate step to achieving this goal would be to approach different issues and ones that don’t have constraints such as being governed by convention, that continue to work against any positive steps taken to establish a separation of powers within the state. The fact that Cabinet members can vote in parliament is a direct overlap between two of the powers and maybe reform of this area should be considered as well. Perhaps the whole set up of our countries elective system is in need of reform as any party that commands a majority could effectively pass any bill they like without opposition.
Tony Blair as the head of the Labour government in 1997 enjoyed such domination of parliament. The use of the Royal Prerogative has been described as ‘unconstitutional’ and came under scrutiny when Tony Blair supported the USA in the Iraq War and sent British soldiers to war. These majority governments have been described as ‘elective dictatorships’, and these are but a few examples of many things that work against our country ever having a true and complete separation of powers. The establishment of the Supreme Court in October 2009 and the Constitutional Reform Act 2005 appears to have sparked willingness for change.
This could be seen in the 2010 General Election where clear emphasis was placed on constitutional reform by each major party, to mention but one is the Liberal Democrats pledge to attempt to remove the first past the post voting system to be replaced by proportional representation. The Con-Lib coalition government of 2010 has recently created a five year fixed term parliament which places the next general election on the first Thursday of May 2015. These are all changes that will eventually contribute to creating a separation of powers and to positively change the constitution.
It can be seen from this that the introduction of the new Supreme Court has made a big step towards bringing about a true separation of powers in the UK. Regardless of the conventions that the House of Lords and appellate committee followed, the Supreme Court has severed any link between the judiciary and parliament. This is particularly important in present times as the rise in claims of judicial review require a completely impartial court in order to enable the judiciary to keep check of the legislative and executive branches of state and to uphold constitutional justice.
It is also clear that there is at best a partial separation of power in the UK which is important to retain but it could not be said that we have incorporated this concept wholly and much more will be done over time to establish a more stable constitution for future governments. Constitutional reform in itself is not a simple task and examples of this can be seen in countries such as Bosnia who are currently struggling with reformations, which really does highlight the enormity of creating a Supreme Court and re-identifying the judicial branch of the UK.
Whilst there is currently only a partial separation of powers in the UK for now, this may be starting to change.
- Neil Parpworth, Constitutional & Administrative Law (6th Edition, Oxford University Press, 2010).
- Anthony King, The British Constitution (Oxford University Press, 2007).
- Jeffrey Jowell and Dawn Oliver, The Changing Constitution (6th Edition, Oxford University Press, 2007).
- Vernon Bogdanor, The New British Constitution (Hart Publishing, 2009).
- http://www. energyobserver. com/tekst-e. php? lang=2&ID=1072 accessed 07/01/2011 14:07. accessed 07/01/2011 15:36.