Introduction
Issues or aspects that are related with the separation of powers doctrine have enjoyed an undivided attention in British constitutional growth and advancement. It actually has had equal probability of being viewed as an important part of the constitution as well as disdained as an irrelevant part of the constitution. This state of uncertainty has been caused by a number of factors. One of them is the fact that there exist conceptual differences in regard to the doctrine as a whole. The doctrine of separation of powers has widely been seen as an element of organizational design, and as an element of checks and balances. A number of people have also presented it as an instrument by which governmental efficiency can be monitored. The disparities in what people consider as the role and function of separation of powers made the doctrine to be captured in the famous quote by Geoffrey Marshall as ailing from such “imprecision and inconsistency that it should be discounted as a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds. Secondly, and possibly the most important is the fact that separation of powers is clearly in conflict with the central pillar of British constitution. The bone of contention is the sovereignty of Parliament in that all legislative power is vested in a single institution, instead of fair distribution between the three arms of government.
Separation of power
In any independent legislature, every aspect of distribution of power between the different branches of government is done in a hierarchical manner. However, power should be divided, as if the specific arms are co-equal branches. If the credibility of the sovereignty doctrine is to be guarded, it will be factious to think that a responsibility of government that is being performed by either the executive or the judiciary should continue as their responsibility for ever. In addition, the merging of the branches of government where members were selected by ballot in the British constitution shows the clear refusal of separation of powers as a guide of institutional design. This comes as the progressive growth and natural development of the British constitution seems to oppose the idea that the system of government has been intended to strictly follow a certain constitutional premise at any point. All these challenges notwithstanding, individuals who study the British constitution have not been able to avoid the analysis of the doctrine of separation of power in totality; this includes Stanley De Smith for example – who thought that “no writer of repute would claim that the separation of powers is a central feature of the modern British constitution,” – was forced to concede that a brief survey of the doctrine brings out more clearly some features of the British system of government.
British constitutional system
How then can we offer an explanation as to why the aspects of separation of powers have persistently appeared in accounts of the British constitutional system? The answer to this can possibly be found in the strong will, which is made better by the fact that the doctrine is both a constitutional and political theory; that separation of powers has endured as a key element of constitutional thought in Britain. This by and large seems to indicate that its figurative importance, and overarching goals and objectives, carry more weight than the debates over the many ways in which it may be implemented. This is actually weightier than its persistent variance with other elements of the constitutional configurations. The various elements and definite characteristics of the doctrine of separation of powers shows the significances and ambitions that are, to a high level, clearly depicted in the modern British constitution, just like what is happening in other constitutions with a more coercive separation of power systems.
Constitutional theory
These include the attempt to avoid the concentrations of power, the maintenance of individual freedom, the relevance of constitutional checks and the sovereignty of the judiciary system. Due to these factors, British constitutional intellectuals have refuted the idea that any loyalty to the aspects of separation of powers is a product of putting to use, the constitutional theory to the design of the constitution. In real sense, the development of the doctrine of separation of power has been fanned by these requirements perceived to be part and parcel of the doctrine. In other words, the doctrine of separation of powers as presented in the British constitution is a progressive concept which gives room and the potential for advancing development, just as the constitution as a whole.
Human Rights Act 1998 and the Constitutional Reform Act of 2005
In the recent past, there have been efforts to rejuvenate aspects and other issues regarding separation of powers in the British constitution. Issues such as coming up of the-inter alia – the Human Rights Act 1998 and the Constitutional Reform Act of 2005, coupled by the boost in currency of common law constitutionalism have each had a substantial impact. Lots of credit can be given to the Human Rights Act for its immense contribution to adjust the balance of power in the British constitution from what has been the traditional perspective. The Act has achieved this by putting into perspective questions of human rights into the subject of the competence of the judicial system. The Act has been committed to see to it that the different parts of policy more so those that were in the past seen like they are not within the periphery of judicial appraisal are appreciated. This has ensured that the checking and balancing role of the judiciary has substantially been made stronger.
The Act has vested the judiciary with the mandate to give an interpretation of the statutes so as to be in agreement with the Convention Rights. If this kind of statute interpretation proves impossible or if it is hard to issue a declaration of compatibility; the Human Rights Act provides the judiciary with the opportunity to tamper with the effects of the provision that is found to be rights-infringing. Better still, it can exert pressure for legislative step to be taken to address the possible incompatibility that is there between the original legislation and the provision as stipulated in the Human Rights Act. Although the powers of the Parliament to make laws are subject to no constitutional limits, theoretically, they are still reserved. Sections 3 and 4 of the Act provides that all law formation is predisposed to double interpretation by the judiciary or to the persuasive political force that require compliance to declaration of incompatibility. As such, the Human Rights Act brings forth a number of questions relating to the functioning of the legislative arm of government. It is normally supervised by the judiciary, as it seeks to improve the checking and balancing function of the British courts better than they have ever been.
The Constitutional Reform Act 2005 has raised the aspect of a different nature in the separation of powers doctrine. In an effort to secure freedom of the judicially from both the executive and the legislature, the Constitutional Reform Act has made great strides. These include setting up a Supreme Court, offsetting the Lord Chancellor of judicial related responsibility and setting up a Judicial Appointments Commission among others. The idea of judicial independence which for a long period of time has been used as a tool established to deliver fairness of personal proceedings, have now taken an institutional turn. This is in line with maintaining the notion of the judiciary as a self-governing but third arm of government. The two legislative progressions are interconnected; Article 6(1) of the European Convention on Human Rights created – via the Human Rights Act – seeks for stronger judicial sovereignty. On the other hand, the improved structural independence of the judiciary enhances and legalizes the increased supervisory responsibility of the Human Rights Act.
Combination of the two aims at improving the role of judiciary regarding scrutinizing the areas traditionally associated with the legislative and executive arm of the government. They also go a long way to encourage the institutional separation of the judges from the elected branches of government. By working as one, the two have redefined the relationships that existed between the judicial and the other two branches of government. In doing this, they have succeeded in rejuvenating the talk on separation of powers in the constitution at use now. However challenges ranging from the traditional obstacles to current resistance to complete realization of separation of powers are still evident. The element of checks and balance abilities of the courts have improved to such a degree that one person commented that the independence doctrine has been overtaken by the British version of separation of powers.
Conclusion
This essay has succeeded in showing that the operations of the canon of law, constitutional principles of the independence of the legislature, and the doctrine of separation of powers plays a big role when it comes to the provision of justice in the United Kingdom. It is actually impossible for any judge to avoid using the laws of the legislature. The executive arm of the government is not superior to the law. It is possible for the parliament although it should not happen, to make laws that are unreasonable. The parliament thus requires checks and balances. This role is taken up by the court and it checks the intemperance of the state. When subjected to a matter requiring judicial interpretation, the court may give an interpretation putting in mind the existing social context. These developments have had great impact in enhancing the move towards a system of judicial checks and balances within the British constitution. The system should be one that has the ability to at least facilitate the performance of all exercises of statutory and prerogative nature.
With the execution of the Constitutional Reform Act 2005, the legal position of these improved judicial checks has now been strengthened by the increased structural sovereignty of the courts. This is happening as the functional constitutional boundary is retained with no restructuring. The courts are however adhering to some well- thought test of proportionality and the potential of the courts to evaluate the decision-making processes taken up by politicians. The monolithic aspect of independence is currently under increased scrutiny. This is happening despite the fact that separation of power does not require the entire suppression of political decision-making process to take up judicial decisions. The aspect of separation of powers is still a sensitive issue in the functionalist way of reasoning in British constitutional law.
Bibliography
Cases
Duport Steel v. Sirs [1980] 1 WLR 142, 157 (Lord Diplock)
M v. Home Office [1994] 1 AC 377, 395 (Lord Templeman)
Journal Articles
Anthony Tomkins, ‘The Rule of Law in Blair‟s Britain‟’: (2007) 26 University of Queensland Law Journal 255, 258-266.R.
De Smith ‘The separation of powers in new dress’: (1966) 12 McGill Law Journal 491, 491.
Hood Phillips, ‘Constitutional Myth: Separation of Powers’: (1977) 93 LQR 11
Books
Aron Tomkins, Public Law (Oxford: Clarendon Press, 2003), p. 44-47.
Clayton Tomlinson, The Law of Human Rights (2nd ed) (Oxford: Oxford University Press, 2009)
Dan Woodhouse, Constitutional and Political Implications of a United Kingdom Supreme Court (2004)
Garl Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971)
Garl Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971), p.124.
Lord Woolf and Aron Le Sueur, De Smith’s Judicial Review (London: Sweet and Maxwell, 2007)
Vincent Bogdanor, The New British Constitution (Oxford: Hart Publishing, 2009)
Varon Bogdanor, The New British Constitution (Oxford: Hart Publishing, 2009)