Real Separation of Powers in the United Kingdom

The new Supreme Court of the United Kingdom came into existence on 1st October 2009. The Supreme Court is the final court of appeal in the UK for civil cases. It hears appeals in criminal cases from England, Wales and Northern Ireland. Replacing the Appellate Committee of the House of Lords the Court’s creation is a landmark in the UK’s constitutional and legal development.

Lord Phillips of Worth Matravers, President of the Supreme Court, said: “For the first time, we have a clear separation of powers between the legislature, the judiciary and the executive in the United Kingdom.”

Discuss whether or not this recent development will bring about a real separation of powers within the United Kingdom.

“Whether or not this recent development (The new Supreme Court) will bring about a real separation of powers within the United Kingdom” In order to fully assess and answer the above question we must first clarify what is meant by the term “ separation of powers” and where it stems from. We will also have to asses to what extent the separation of powers is exercised in the UK and how this is linked with recent development of the Supreme Court. In coming to a conclusion we would need to discuss has this new development brought about a real change and what effects this development has had or will have on the United Kingdom.

The doctrine of separation of powers has been discussed for centuries and can even be traced back as far as 384 – 322 BC in the writings of the Greek philosopher Aristotle. However, the clearest explanations of the doctrine started to come in 1690 from John Lock an English philosopher who wrote that “the same person should not have power to make laws and to execute them” Following on from this basic ideology the French political philosopher living in Britain Baron de Montesquieu in 1748 made the doctrine the most clearest when he published “The spirit of the Laws (French: L’esprit des Lois)” in which he wrote “there can be no liberty … if the legislative executive and judicial powers of Government were to be exercised by the same person or authority”.

“The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body”. This Constitutional principal divides governmental power into three elements: –

The Legislative – This is the branch which has the power to make the law.

The Executive – This is the branch which has the power to enforce the law.

The Judiciary – This is the branch which Interprets and applies the law.

In order to achieve a real separation of powers all three of these branches need to be independent from one another so that there is no abuse of power.

The United Kingdoms constitution was shaped back in 1688 before the idea of separation of powers was fully developed. The model of separation of powers within the British Constitution is not very clear yet as there is an overlap in powers in all of the governmental elements, which causes a fusion of powers rather than a separation. The biggest overlap in powers in Britain is between the legislative and the executive. Below is a brief description of how this fusion is caused.

In the UK, Governance is divided into four separate institutions these are: –

The Monarch – Under the British constitution the Queen has executive powers known as the royal prerogative which she normally defers to the prime minister or other ministers. The Queen is a member of the legislative and executive and also has roles in the judicial system although this is more theoretical than practical now.

Parliament – The Legislative branch which is Split into two houses the upper and the lower; the upper house is the “House of Lords” and the lower house is the “House of Commons”. The house of commons consists of elected members of parliament each representing there constituency where as the House of Lords have unelected members which consist of hereditary and life time peers. The constituency that holds the most number of seats in the House of Commons is the elected Government. Members of the government are part of the executive as well as the legislative. Some of the members of the House of Lords are part of the judicial system as well as the legislature.

Government – The Executive branch which consist of the Prime Minister and his Cabinet, MP’s, police, policy deciders and the civil servants etc. The executive also have a legislative function when ministers make regulations through statutory instruments. The executive also have a judicial role through its administrative tribunals such as the immigration, mental health and social security tribunals.

The Judiciary – These are the judges of the higher courts that can have an impact on government through the judicial review. The law lords have roles in the judiciary and the legislature.

In Britain even though the constitution does not have a complete separation of powers in place, we have however slowly been evolving to achieve the same basic principles of the doctrine, which is personal liberty and legal certainty. This is best shown in the following legislation.

The Act of Settlement 1700 – which states “senior judges hold office ‘during good behaviour’ and can not be removed except on an address to the Queen from both Houses of Parliament”

The House of Commons Disqualification Act 1975 – which prohibits judges, serving member of the armed forces, civil servants, ordained ministers from sitting and becoming a member of the House of Commons.

The Constitutional Reform Act 2005 – This bill is one of the most fundamental bills that evolved us a great deal towards the principle of separation of powers. This bill was proposed to the House of Lords on February 2004 and received royal ascent on the 24th of March 2005. The Act contains provisions which reform several institutions of the United Kingdom it brought the following key changes: –

Reform of the post of Lord Chancellor who previously had roles in all three governmental institutions the executive, legislative and the judiciary. His post was reformed by transferring all his judicial functions to the president of the courts of England & Wales in a new title of Lord Chief Justice.

A duty on government ministers to uphold the independence of the judiciary barring them from influencing judicial decisions.

A new independent judicial appointments commission responsible for selecting candidates to recommend for judicial appointments.

A new Judicial Appointments and Conduct Ombudsman.

Most importantly a new, independent Supreme Court will be established.

On the 1st October 2009 the doors to the new Supreme Court were opened completing part 2 of The Constitutional Reform Act 2005 and for the “first time in almost 900 years the judicial independence is officially enshrined in law”.

The courts are the final arbiter between the citizen and the state and are a fundamental part of any constitution.

The New Supreme Court has been established so that a complete separation between the upper house of parliament and the senior judges can be achieved. Up until now the twelve law lords sat in the upper house of parliament in the House of Lords in August 2009 they moved into their own building opposite parliament square which is the new Supreme Court.

The New Supreme Court will bring many changes amongst them will be taking over the judicial role of the House of Lords which had evolved over 600 years and were the final court of appeal for UK on all civil and criminal cases. The new development will also take over the matters of devolution from the judicial committee of the Privy Council.

The existing 12 full-time law lords will form the initial members of the new Court. There will be the same number of full-time judges but there will be continued help of other judges on a part-time basis. As mentioned earlier because of the reform of the Lord Chancellor’s judicial role he will not be allowed to sit in the Supreme Court his judicial role has been transferred to the new Lord Chief Justice the president of the court. Previously all judges in the House of Lords became lords this will no longer happen they will now be called “Justices of the Supreme Court”. The qualification of membership will remain the same although the recruitment process will change for this a new independent judicial appointments commission will be responsible. Only the current full-time law lords will be able to sit and vote in the upper house of parliament after retirement. All these changes have taken place so that the judiciary can become totally independent and separate from Government and Parliament.

The opening of the Supreme Court has made this separation seem much more transparent and has made the United Kingdom a step closer to achieving real separation of powers.

http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/constitutional_reform/index.htm

http://en.wikipedia.org/wiki/Constitutional_Reform_Act_2005

http://en.wikipedia.org/wiki/House_of_Commons_Disqualification_Act_1975

http://www.parliament.uk/about/how.cfm

http://www.parliamentlive.tv/Main/Player.aspx?Film=DemocracyYouDecide&w=460&h=259

http://en.wikipedia.org/wiki/British_Constitution