Example Of Essay On Critically Evaluate The Operation Of Doctrine Of Separation Of Powers In The English Legal System
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Democracies thrive because they have legal systems that have embedded guarantees that individuals and institutions do not abuse their power. One such democratic tool is the doctrine of separation of powers. This doctrine place emphasis on the independence and the distinction between institutions, such as the executive, the legislative and the judiciary, so that no one institution can overrun or overwhelm the others. The United and France are two states known for their strong separation of powers system. Until recently, the UK seemed to have taken for granted this democratic instrument allowing several positions in the three or two governmental institutions to be straddled by just one person. In the last decade, however, the country has manifested a change of heart with respect to the doctrine paying more attention to it through legislations that focus on separating the powers of these institutions.
The Concept of Separation of Powers
Separation of powers is a doctrine used to refer to the ideal relationship between the three main institutions of the government, namely the executive department, the legislative and the judiciary. The ideal relationship of these three institutions should be one characterised as separate and distinct from one another. To achieve this state, there must be three distinct groups of persons that administer these powers. Moreover, an effective system of separation of powers must include both separation of institutions, which means there is no overlapping of membership, and separation of functions, which means each institution have functions unique to itself. At present, the purpose of the doctrine is to serve as a system of checks and balances to prevent one institution from becoming more powerful than the others, like what happened to Germany during the reign of Hitler when the absence of a system of checks and balances turned it into a totalitarian government.
The principle of separation of powers is a concept that is rooted in ancient history. In Plato’s Politics, he referred to three elements that must be established well in a Constitution to make it effective. He referred to these elements as the deliberative, the officials and the judicial element. In the 1869 John Locke writing The Second Treatise of Government, he distinguished between the legislative, federative and executive powers. Locke believed that although these powers are distinct from each other, the same persons almost always exercised them. He placed emphasis on ‘trust,’ rather than separation as their basic characteristic. On the other hand, the noble Frenchman Baron de Monstesquieu, who travelled in Europe between 1728 and 1731 moving around in European political circles, wrote in 1748 that liberty was not possible when only one person exercises executive and legislative the powers. He rationalised that a legislator who passes tyrannical laws is likely to implement them tyrannically, if he is the maker of the law and its executioner at the same time, and people who understand this cower in fear. Similarly, there is no freedom either if judicial power is married to legislative or executive power. To merge the judge and the legislator into one person is to potentially make that person act in an arbitrary fashion and if only one person acts as a judge and executive at the same time, he will most likely be an oppressor.
The English Legal System and the Doctrine of Separation of Powers
Unlike in the United States, where the doctrine is a constitutional centerpiece, the UK system is not too cognizant of the principle of separation of powers. Rather, the UK places more importance in the balancing of power between the Crown and the Parliament. Although both the US and the UK are common law countries, the former has a presidential form of government and the latter a parliamentary system. In addition, the US has a written Constitution and the UK has an unwritten one. These seem to be the underpinning reasons for the variant in the two countries’ approaches with respect to the doctrine. In the presidential type of government, the institutions are distinguished from each, but the British Westminster system is closer to the winner-takes-all system. Thus, the victorious party chooses the Prime Minister from among their ranks as well as individuals to be put in the very important positions in the different branches of the government. Constitutional theorists, for example, see the supremacy of the Parliament as the state’s law-making body as the chief characteristic of Parliamentary system, which differs from a system under absolute separation of powers, where the executive, legislative and the judiciary as three equal, but separate bodies. The indistinct characteristic of the doctrine in the English legal system is aggravated by the absence of a written Constitution that could have provided an opportunity and a venue for establishing in distinct terms the powers, functions and offices of each of these institutions.
This is not to say that the UK has a comparatively weaker constitutional system. Rather the strength of the UK Constitution lies in the fact that constitutional moments have been embedded in the state psyche and lives and carried on through tradition and practice. “The British Constitution is the product of a dynamic process marked by constitutional moments.” This explains the fact that even if the English legal system has no distinguishable separation of powers, its institutions are traditionally independent.
Prior to the passage of the Constitutional Reform Act in 2005, several persons get to straddle positions in the legislative, judiciary and the executive clearly breaching the very concept of the doctrine. For example, the Lord Chancellor headed the judiciary, the House of Lords, and at the same time served as a Cabinet Minister. Although he originally hailed from the legislature and the executive, he had the power to recommend the top hierarchy of the judiciary and directly appoint lower rung members, determine their pays and pensions as well as discipline them.
The times are changing, however, with respect to the UK’s perspectives of this doctrine. Beginning in the 1990s, the UK has been moving towards a more distinct and formal type of separation of powers and gradually departing from a ‘fusion of powers’ system. In 1998, the United Kingdom passed the Human Rights Act and in 2005, the Constitutional Reform Act. Both the passage of these laws was seen as manifestations of the country’s desire to improve the quality of its government, particularly the doctrine of the separation of powers. The passage of the Human Rights Act of 1998, which was the integration of the provisions of the European Convention on Human Rights into domestic law, had paved the way towards this direction largely because it mandated UK judges to look to the Convention as well as the decisions of the European Court of Human Rights in Strasbourg in deciding domestic cases.
The reforms, which clipped the powers and duties of the Lord Chancellor by eliminating his position as head of the judiciary and speaker of the HL, seem to be heading towards a more pronounced system of separation of powers. The new system can be characterised as more formal because of the establishment of rules of relationships between the branches of government, unlike the previous system, which was informal, secretive and closed. Moreover, a new, spanking Supreme Court has been created taking over the duties of the House of Lord, in effect, separating the judiciary from the legislature.
The English legal system is not particularly known for abiding by the doctrine of separation of powers, in its pure form. Previous to reforms, the UK government system was a network of overlapping institutions where some positions straddled two or three institutions of the government at the same time. This was exemplified by the position of the Lord Chancellor. With reforms put into place beginning in 2005, separation of powers is more formal and less abstract. However, it has been suggested that a complete separation of powers is not possible, nor has any state at present illustrated a completely three-way, equal system of checks and balances. The two states that best exemplify the system, the US and France, are testament to this claim. For example, in the US, the separation of powers is more focused on the executive and the legislative branches, and less on the judiciary. In France, the separation doctrine is more emphatic with respect to the judiciary, but at the same time keeping it from imposing itself on the two other branches. From the UK perspective, the doctrine as a core governmental doctrine is just beginning to be recognised although traditionally, the institutions are independent proving that independence and avoidance abuse of power need not stem alone from the strength of legal system, but may also live through and carried by tradition and practice.
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Mitchell A, AS Law (New York, NY: Routledge-Cavendish, 2008)
Parpworth N, Constitutional and Administrative Law, 7th ed (Oxford University Press, 2012)
Saunders C, Separation of Powers and the Judicial Branch (Judicial Review, 2006)
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