{"id":302,"date":"2019-08-05T08:47:31","date_gmt":"2019-08-05T08:47:31","guid":{"rendered":""},"modified":"2019-08-07T11:24:43","modified_gmt":"2019-08-07T11:24:43","slug":"uk-constitution-strict-separation-powers-2821","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/constitutional-law\/uk-constitution-strict-separation-powers-2821.php","title":{"rendered":"The UK Constitution’s Strict Separation of Powers"},"content":{"rendered":"

The UK constitution does not contain a strict separation of powers. But that is a strength not a weakness. Discuss<\/h4>\n

First of
\nall, a constitution is the protocols of a state. It sets out the body of the
\nstate and the powers it has. In respect to the separation of powers, this is
\nthe idea that certain powers are delegated to the different branches of the
\nstate. The three branches in the UK are known as the legislative, (Parliament)
\nthe executive, (Government) and the judiciary (Courts) which are considered to
\nfunction \u2018separately\u2019 as they have different legal powers. The main principle
\nbehind the separation of powers (also known as the Doctrine) is to prevent the
\nabuse and misuse of power from the bodies. The question is, is having a
\nseparation of powers (that is not fairly strict) a strength or a weakness? <\/p>\n

The first
\ninstance which identified the purpose of the separation of powers was in Magna
\nCarta[1]<\/a>.
\nThis acknowledged that there was a separation from the monarch and Parliament
\nwhich limited both powers, also inaugurating that the \u2018council\u2019 had their own
\nset of legal powers.1 <\/sup>Evidently, this has led to various
\nperspectives on the view of the separation. Montesquieu[2]<\/a>
\nprovided the idea that if one body (rather than the three branches) were to
\nhave all the power \u201cthere can be no liberty\u201d. [\u2026]2<\/sup> This identified
\nthat separation is necessary as it could result in the abuse of power. If one
\nbody held all the power, there would be a lack of checks on that body to ensure
\nthat it was working accordingly. Another theorist that shared this view was
\nJohn Locke. He stated that rulers should keep \u2018within their due laws\u2019 and \u2018not
\nto be tempted by the power they have in their hands to employ it for [improper]
\npurposes.\u2019[3]<\/a><\/p>\n

Although
\nthere is a separation of powers in the UK, it is not necessarily a strict one.
\nThe three branches work cooperatively to regulate the institutions and to
\nensure that there are checks and balances (demonstrated in acts like judicial
\nreview) to prevent the misuse of power. This can clearly be seen as a strength
\nas it avoids one body from becoming too powerful and from exploiting that
\npower. A more recent view point from the perspective of Barendt; specifically
\nfocuses on the judicial power. He states that they hold little power as they
\nrely on the government for funding[4]<\/a>.
\nHowever, Hamilton6<\/sup> argues that if the judicial powers were given to
\nanother body (Parliament or executive) they would then be granted the power to
\ndistinguish when a law had been broken. He stated that it was \u201cessential\u201d[5]<\/a>
\nfor the judiciary to be independent. In respect to the UK\u2019s constitution, this
\ncould be seen as a weakness if there was no separation of powers as if the
\njudiciaries power were to be given to another body, they would be able to
\ninterpret what Parliament means when applying the law. <\/p>\n

Furthermore
\nBarber[6]<\/a>
\nsuggests that there are two perspectives on the Doctrine of separation of
\npowers. He refers to what is known as the \u2018pure\u2019 and \u2018partial\u2019 theory. The pure
\ntheory represents the idea that there is an absolute divide from the three
\nbranches laying out their specific functions he portrays that this theory puts
\na \u201crestraint\u201d2 <\/sup>on the state\u2019s power. This can be seen as both a
\nstrength and a weakness of having a separation of powers as it limits the
\npowers the bodies have which prevents the abuse of powers. But is also a
\nweakness as putting a \u2018restraint\u2019 on the state\u2019s power can cause communicational
\nfriction between the institutions. <\/p>\n

 The partial theory is the idea that the
\nseparation of powers is to ensure that there are various \u2018checks and balances\u2019
\nput in place in order to make sure that the institutions are performing to
\ntheir highest standards. This can also be seen as a strength as it leads to
\nthorough checks within the institutions which ensure that the state is
\nperforming to its highest ability.<\/p>\n

When
\nconfronting the idea of the separation of powers in the UK, it can be drawn to
\nthe conclusion that powers are not theoretically separated as the branches have
\nmany overlaps. One major overlap in the constitution is between the legislative
\nand the executive as the Prime Minister and Cabinet Ministers work
\nco-operatively. Bagehot4 <\/sup>considers their proximate relationship as a
\n\u201cclose union, and almost a complete fusion of legislative and executive power\u201d4<\/sup>
\ndemonstrating that the powers are not totally divided. Once again, this can be
\nseen as a strength rather than a weakness as to have a \u201cclose union\u201d4 <\/sup>allows
\neach branch to cooperate resulting in better communications. However, it may
\nalso be argued that that this proximate relationship can lead to one body
\noverpowering the other as they don\u2019t necessarily have a strict limitation of
\npower on the three branches.  <\/p>\n

One key
\nrole that demonstrated that there isn\u2019t a strict separation of powers in the UK
\nwas the position of the Lord Chancellor whom was a member of all three
\nbranches. It wasn\u2019t until 2003 where this role was abolished. Judicial
\nindependence also indicates that there is a separation of powers within the UK
\nconstitution. Lord Steyn[7]<\/a>
\nhas previously suggested it to be the \u2018least dangerous\u2019 within the branches as
\nit hold little powers in comparison to Parliament which is held as its superior
\nas demonstrated in the case of Burman Oil (1965)[8]<\/a>.This
\ncan be seen as a strength as it demonstrates that there are certain limitations
\non the institutions to which they should not exceed. Evidently, it makes sure
\nthat they stick within their limits. <\/p>\n

There are
\nmany overlaps within the three branches even when regarding the Constitutional
\nReform Act 2005[9]<\/a>. This was significant
\nbecause it established the Supreme Court. Prior to the Constitutional Reforms
\nAct 2005 superior judges whom were able to sit in the legislative chamber of
\nthe House of Lords and had both legislative and judicial powers. This can
\nrepresent the separation of powers as a weakness as it demonstrates that the
\njudges theoretically had both powers. <\/p>\n

Overall, it can be believed that the separation of powers (although not strict) is not a weakness but a strength due to the various \u2018benefits\u2019 that it has. Arguably, of the greatest strengths of having a partial separation of powers is the proximate relationship between the branches as this allows for there to be many checks to carried out to ensure that each institution is acting within accordance. Having flexible powers also allows there to be a balance system to ensure that not one body becomes overpowering. <\/p>\n

Bibliography<\/h3>\n