SEPARATION OF POWERS

Separation Of Powers



Separation Of Powers

Introduction

In addressing this question, it would be useful to explain just what the doctrine of the separation of powers consists of. The concept of the separation of powers goes back to the time of ancient Greece however it only came to be considered as a real 'grand constitutional principle' when the French theorist Montesquieu wrote 'L'Esprit des Lois' (The Spirit of the Laws). In this work, there was an argument for a strict separation of powers that is the legislature, the executive and the judiciary. So in other words, the power to make the law, the power to govern the state and the power to apply and interpret the law should be separate for the protection of the liberties and freedoms of the individual.

Analysis If this question had read 'Does the United Kingdom constitution have a strict separation of powers' then the simple answer would be, no it does not. The Oxford Dictionary of Law provides that 'The doctrine that the liberty of the individual is secure only if the three primary functions of the state (legislative, executive, and judicial) are exercised by distinct and independent organs'. In the UK this is not the case and the reason for this lies in the overlap of the three functions, of which there are many examples. For example, the law lords sit on the appellate committee of the House of Lords and the judicial committee of the Privy Council. This overlaps the legislature at the judiciary as the House of Lords is also part of a legislative body (Alex Carroll, 2007). According to Parpworth, the most commonly cited overlap that supports the argument that there is no separation of powers in the UK constitution is that of the position of the Lord Chancellor. He is a member of all three functions, a member of the House of Lords in it's legislative role, the head of the judiciary and a cabinet minister and therefore also a member of the executive. However, the question reads 'Is the UK constitution based on a separation of powers', based being the operative word in this case. This is a far less clear-cut issue (David Polland, 2007).

Professor Munro noted that two opposing camps have been established in the debate of whether or not the UK constitution is based on a separation of powers. The first camp is comprised of academic writers on constitutional law, in which the general consensus is that there is no separation of powers. It has been suggested by Professor Barendt that academics in general have given very little regard to the doctrine of the separation of powers, and their treatments of it 'tend to be either brief or dismissive'. The opposing camp in the issue is the judiciary. Senior judges have expressed, on numerous occasions, the opinion that the UK constitution is actually based upon a separation of powers (John Alder, 2007).

The argument against the opinion that there is a separation of powers in the UK constitution ...