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Published: Fri, 02 Feb 2018
Separation of powers
Separation of powers is when the state is divided into three different governmental bodies (legislature, executive and judiciary); and all three bodies have separate and independent powers and areas of responsibility. The effect of separation of powers, is removing the amount of power in any groups hands, so in essence it makes it difficult for them to abuse it. I would be discussing three obvious breaches of separation of power, and whether they are beneficial or detrimental to the system.
When discussing about the breach of the separation of powers in the United Kingdom, it can be related to the Lord Chancellor. He has been a part of all three governmental bodies for years (legislature, judiciary and executive).
The lord chancellor is involved in legislature, by been in the upper chamber as the speaker of the House of Lords, which means he is in charge and in control of every decisions that comes out of the House of Lords, and has a vote. As been the head of the House of Lords, he represents the house in both international and domestic events.
He is also a major team player in the judiciary aspects of things, by been able to sit as a senior judge in the court of appeal, the Privy Council or the appellate committee. The Lord Chancellor is also the holder of the great seal, and the head of the judiciary in both England and Wales, and also the president of the Supreme Court. He also played a major role in the appointments of judicial posts and Law Lords, because the prime minister would consult him on suitable candidates.
Prior to the constitutional reform act 2005, the Lord Chancellor held unto all three aspects of the governmental bodies. Previously Lord Hailsham defended the judges by saying “the independence of the judiciary and the rule of law should be defended from inside the cabinet as well as inside parliament”. The Lord Chancellor also acted as a spokesperson for the judges for many years, by defending their interference with the executives, until recently when the disadvantage outweighed the advantage that it is a major breach of the separation of powers.
The constitutional Reform Act 2005, redefined the office of the Lord Chancellor, which made sure there was a major separation of power between the executive, judiciary and legislature. The Lord Chancellor is no longer the head of the judiciary, and does not sit as a judge or the speaker in the House of Lords. He is still involved with the judiciary process, but with less influence. The act prohibits the office holder of the Lord Chancellor from holding judicial office.
The Lord Chancellors role in the United Kingdom has been an ongoing debate for years, and have been widely criticised. A bit of separation has been put in practice, but the Lord Chancellor role is still in certain aspects involved in all three parts of the governmental body. It is yet to be decided, but if a definite separation is made, it would be beneficial to all three aspects of the governmental body.
Delegated legislation is another major form of separation of powers. Delegated legislation can also be known as subordinate legislation, which occurs when executive’s bodies are given the power to make laws, instead of the parliamentary body (legislature), for example local councils by-laws. Delegated legislation has a major overlap involving the executives performing a legislative function.
Legislations may be made by ministers (in the form of rules and regulation), local authorities (in the form of bylaws), public bodies (in the forms of rules and regulation), judges (in the form of rules of court), government departments (in the form of codes of practice, circulars and guidance) and the House of Commons (in the form of resolutions of the house).
Delegated legislation raises questions relating to the supremacy of parliament, because in a parliamentary year about 3,000 laws are passed; but the volume of legislation reveals its importance as a source of law.
Although the powers are in the hands of executive bodies, they are under strict instructions to only pass legislation that are intra vires, which are within the legal powers that are conferred by the act; but if the executives go against the rules, the legislation they pass will then be made ultra vires by the courts, which abolishes the law.
By restricting the executives, the courts are trying to put legal controls on the legislation made, and also trying to show that giving the powers to the executives are not violating the separation of powers. Chester v Bateson is an example of the courts control over the use of delegated legislation.
A major practical benefit of the laws created by delegated legislation is flexibility. Although there are both political and legal controls over delegated legislation, because “it should be remembered that the vast majority of domestic legislation which is passed is delegated, not primary Acts of parliament.”
The benefits of delegated legislation, is that unlike an act of parliament, it cannot be challenged in a court of law; which could possibly delay the process. They can also be passed due to the local needs, which can be well-suited in meeting the different needs of local communities.
Judicial reviews can challenge delegated legislation in courts, because they are the only once with the control. if a piece of legislation is made against the statutory procedures, they can be struck down; they can also get challenged on the grounds of irrationality, which was held in Kruse v Johnson, where it was held that a by-law which was unequal in its operation as between different classes.
If the power of delegated legislation is retrieved, it could affect inner-cities and communities, because it is a reliable way out to solve problems instead of waiting for parliament. The parliamentary body would also feel under a lot of pressure, due to the amount of work load waiting to be answered, which would slow down the process of laws been made and needs been met.
The Privy Council is another form of a breach in the separation of powers. The Privy Council are the inner council of advisers to the queen; they are also the chief policy making governmental body. There are over 500 members of the Privy Council, and they comprise of people who hold or have held political or judicial offices, for example peers, cabinet ministers, senior judges, prime ministers and the archbishops.
The Privy Council has an overlap in relation to the separation of powers, relating to the executive and judicial function of government.
The main function of the Privy Council is judicial, because it makes orders in council and also grants royal charters to public bodies, which are also known as non-statutory orders. The Privy Council can also make laws in the form of delegated legislation, which includes transferring power from one to another. They still remain the highest court of appeal for commonwealth nations, and for certain courts and tribunals. The judicial committee members are law lords or ex-law lords. The Privy Council are also an advisory body to the queen, for example to advise the queen whether or not to declare war, which used to be their main function previously.
The idea of the Privy Council been an executive body but has an overlap by performing both the legislative and judiciary function is a major issue in United Kingdom, because it losses it major function, and now makes legislations. The overlap can also be ascribed to the members for example the Lord Chancellor is one of the active members of the privy council, but also has a major role to play in the House of Lords and also as a judge, which could be one of the major downfall to the overlap.
The amount of overlap between the three governmental functions is such that no clear separation of power can be said to exist. A major advantage to having a clear separation of power is the sense of efficiency in government, and not having too much power in the hand of certain individuals which could lead to dictatorship. It also creates a sense of closeness in the relationships between all three functions.
The fundamental rule of separation of power is to create a balance in order to enable effectiveness. Although a separation of power is needed, but if there was no interaction between all three functions, a government would not be possible, because all three organs of the government help and work together in order to improve each other efforts. For example if the executive has no input in legislation, then the government’s policies could not be implemented.
- Ryan, M Unlocking Constitutional & Administrative Law (Hodder Arnold)
Jowell and Oliver The Changing Constitution (Oxford University Press) 6th edition.
- Stevens, I Constitutional and Administrative Law (M & E handbook series) 2nd edition.
Barnett, H Constitutional & Administrative Law (Routledge.Cavendish) 7th edition.
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