Power Judicial Law
Separation of power ensures there is a distribution of power and authority amongst the three governmental branches, executive, those who initiate new laws and policies, legislative, those who adapt and pass new laws, and judicial, those who interpret and apply the laws. It prevents a single individual abusing his power and authority by dictating to the state and its citizens. In the past, the Crown’s royal prerogatives gave the Monarch complete authority, privilege, and immunity to exercise any laws on the state.
The Bill of Rights 1688, limited the Monarch’s powers, and distributed it to Parliament. Parliamentary sovereignty raises questions about whether separation of power actually exists; as Parliament can now regulate what and how prerogatives are executed, and can even abolish Crown prerogatives.
Violations can occur when not everyone is treated equally in the eyes of the law. Dictatorship occurs when there is an overlap between the three governmental branches and one body dominates over the other. But the main question is whether it is possible to completely separate these powers in order to eliminate the risk of violating individuals’ rights and autonomy.
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The three governmental branches initially came from the Crown itself. Although in the modern British constitution, these branches are treated as separate now, it is argued that the Crown is still present all three governmental functions, in which case the existence of separation of powers is questionable. Dicey’s rule of law states that everyone, regardless of whether they were governmental officials or simply a citizen, should be treated as equals in the eyes of the law and be under the same scrutiny.
As stated in the Crown Proceeding Act 1947, the Crown immunity prevents the Crown from any court orders, as it is not bound by its own legislation. However, the case of M v Home Office (1993), it was made clear that ministers could not have any ‘special protection’ from the law simply because they are a Crown servant. Since the Crown is immune from any kind of legal liability, the only way one can claim compensation is if the Crown volunteers to do so. Thus, Dicey’s rule of law of equality is purely for an ideal constitution.
The Crown’s executive powers have been fragmented to ministers of Parliament, including the Prime Minister. Hence, it seems obvious to state that technically the Crown is present in Parliamentary proceedings, particularly as the Monarch must give her assent to new legislations. This eliminates the idea that there is a separation of power.
The role of the executive is unlimited and undefined, which is probably the reason why they are regarded as the most dangerous branch. Its role is not specifically to create new legislations or to make judicial decisions but instead involves providing advice, managing different institutions, and proposing new laws. In certain situations, such as deciding whether an individual should be given state welfares, the executive makes a judicial decision.
Similar to the way the Crown is not bound by legislation, Parliament is also not bound by procedure, which is part of the Parliamentary Privilege of Article 9 in the Bill of Rights 1688. It can create any legislation, which becomes binding to the citizens in the state. As it is the Crown who gives the final assent to new legislations, the judiciary, the executive, and other institutions, it is not bound by any kind of legislation.
This has originated from the principle that the ‘king can do no wrong’. When one breaks the law, theoretically that person is answerable to the Queen although it is the appointed judge and jury who give a verdict. The Queen is the only person in the UK who does not need a passport to travel, as passports are issued under her name.
The Earl of Pembroke stated ‘Parliament can do anything but make a man a woman and a woman a man’, just about sums up the amount of power that Parliament possesses. The doctrine can be categorised into three parts. Firstly, Parliament can create any law. This right was given to Parliament by the Monarch, through the Bill of Rights 1688, after which Parliament became sovereign. Secondly, part of the doctrine of the implied repeal ensures that Parliament is not bound by predecessors.
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This means it cannot pass a law, in order to bind a future Parliament, which is seen in the case of Ellen Street Estates Ltd v Minister of Health . Thirdly, a law which was passed by Parliament cannot be reversed unless Parliament gives its assent. Dicey stated, ‘Parliament… has the right to make or break any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’.
Parliamentary privilege gives ministers the complete freedom of speech in Parliament proceedings and they cannot be found in contempt of court in regards to what they say. This is evident in the case of Church of Scientology v Johnson Smith , where the Church of Scientology attempted to sue a MP for defamation. But the court held verdict that Article 9 of the Bill of Rights gives Parliament ministers absolute privilege to freedom of speech in Parliament.
The main role of Parliament is to scrutinise prospect laws and policies put forward by the executive. But Parliament does not have the time or expertise in every subject under examination. Hence, most laws are created with no input from Parliament instead ministers who simply vote for their own parties.
Ministers of the executive are by convention be a members of Parliament, which clearly breaches the separation of power due to the overlap between executive and legislature. Checks and balances are put forward in order to prevent one body from dictating to the other. For instance, ministers must publicly regulate in Parliament but executives of the Cabinet make decisions in secret.
Judges are not treated equally in the eyes of the law, as they have the immunity and privilege of the freedom of speech in court. Although judges of a Supreme Court are not immune to liability for negligence, they are immune to libel and slander charges, which can be seen in the case of Anderson v Gorrie (1895). ‘It is the principle of our law that no action will lie against a judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly’. The only justification for a judge’s immunity is the way they must give reasons for their verdicts in court getting rid any kinds of personal prejudice.
The function of the judiciary is not merely to interpret the laws made by Parliament but judges also have the privilege of creating law, too. Although checks and balances are put into action in order to prevent a judge from creating laws based on personal preferences, judges are left to control their own selves. Also, they can only create laws based on the case in front of them and if in certain situations it is possible, then judges must leave it to Parliament to create the law.
In the UK constitution, lawmakers are judges of their own laws, which is evident in the case of Malone v Metropolitan Police Commissioner , Malone’s home telephone was tapped by the police, which he claimed breached his rights under the Human Rights Act 1998. Megarry V-C stated ‘I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses’.
However, there was no legal restriction against private individuals tapping telephones, as a gap in the common law does not prevent the police from doing so, as long as trespassing was not involved. The Interception of Communications Act 1985, which makes phone tapping and intercepting electronic data illegal, was passed 6 years after this case.
The Bill of Rights 1688 has prevented courts and Parliament from interfering with each other. Article 9 of the Bill of Rights creates a barrier between the courts and Parliament, by making it illegal for courts to interfere in Parliamentary proceedings. In the same way, Parliament does not have a judicial role, which makes it illegal for cases to be discussed in Parliament, unless the subject involves the state or national security. Although courts cannot interfere with Parliamentary proceedings, the House of Commons has the power to give judgement on disputes and punish offenders.
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Not only is it important for the judiciary branch, to be independent from the other two governmental branches but also judges themselves need to be independent from other pressures such as personal influences. They must also separate the reasons of their verdict from even appearing to show any kinds of impartiality. In the case of Millar v Dickson (2002), Lord Hope held that ‘central to the rule of law…judiciary must be, and must be seen to be independent of the executive’.
The role of the Lord Chancellor was always a questioned and there was a fear that the Lord Chancellor’s role had too much authority within the UK. This was particularly due to his three overlapping roles within the Governmental branches. He was the head of the judiciary, member of the House of Lords, and head of the Government department, which is responsible for the court system. In the House of Lords, he was the Speaker of the legislature function. In the judicial functions, the Lord Chancellor had many positions.
He was a member of the Judicial Committee of the Privy Council and the President of the Supreme Court of England and Wales. He was also a judge in the Court of Appeal and the President in the Chancery Division. Within the executive functions, he was and still is both member of the Cabinet and the Privy Council.
However, the Constitutional Reform Act 2005 distributed his role in the House of Lords and as his role as the head of the judiciary to other individuals in order to separate the Lord Chancellor’s role and power in all three branches of the Government, ‘for connected purposes’.
The case of Congreve v Home Office (1976) shows the extent in which the executive can go with the powers given by Parliament. The Home Secretary had the statutory power to invalidate all television licences. This is because television owners had taken out a new television licence before the increase in the fee for television licences.
Lord Denning MR held ‘when the licensee has done nothing wrong at all, I do not think the Minister can lawfully revoke the licence… for no good reason, the courts can set aside the revocation and restore the licence. It would be a misuse of the power given on him by Parliament’.
It was held that the executive was only trying to levy money out of television owners and not only was this unfair and unjust, but the executive actually has no authority in demanding this tax. It seems courts have a lot of authority, since Lord Denning MR said, ‘courts have the authority…to correct a misuse of power by a Minister’.
The way executives have the power to increase television licences and revoke the old ones, the judges also have a judicial supremacy. In the case of Anisminic v Foreign Compensation Commission , section 4 of part 4 of the Foreign Compensation Act 1950 was applied, which meant that ‘the determination by the commission of any application made to them under this Act shall not be called in question in any court of law’.
Lord Morris disobeyed and reinterpreted the word ‘determination’ in the Act. He argued that not everything should be claimed as determination because the compensation commission misinterpreted the provision. Judges have separate powers themselves to make any kind of decision they want because at the end of the day, decisions are made by courts.
As UK Constitution is unwritten, Parliament has the power to pass any Acts of Parliament, which is based on Parliament’s sovereignty, after the revolutionary Bill of Rights 1688. The Government or the executive is merged with the Parliament there is a majority vote for legislative power. The formal restraints on legislative powers and authority can only be broken if the members of Parliament vote against a bill. It is very unlikely that members of Parliament would all vote against a bill.
The UK constitution is said to be an elected dictatorship, meaning the current government dominates over Parliament. This is evident through Parliament’s legislative plans, which is directed by the current Government and their party. Government’s proposed bills nearly always pass the House of Commons due to the current Government’s party taking most of the seat as a majority.
Essential as it may be, it is difficult to maintain a separation between the three governmental branches, in a state where there is no written constitution, so there are a lot of flexibility and overlapping between the roles of different personals in each branch. For instance, the position of the Lord Chancellor was frighteningly over-powerful and hence, abolition of his office was necessary. In the USA, the President is separately elected and cannot be a member of the legislature function.
Separation of powers can only be intact if the principle that each body should have the final word regarding its function. For instance, Parliament can alter proposed laws as it sees fit. A possible reform policy in order to reduce the domination of the executive in the UK constitution is to create a codified constitution, including appropriate checks and balances. But it is not just one body that may dominate the UK constitution but all three functions of the Governmental branches.
A separation of power protects democracy and prevents dictatorship but mingling into all three branches is inevitable in a constitution. ‘One of the main problems of a modern democratic state is how to preserve the distinction, whilst avoiding too rigid an insistence on it, in the wide borderland where it is convenient to entrust minor legislative and judicial functions to executive authorities’.
How ministers exercise arbitrary power, Guardian, David Mckie 6th December 2000, http://www.guardian.co.uk/monarchy/story/0,,407374,00.html#article_continue
Constitutional and Administrative Law, John Alder, Palgrave MacMillan Law Masters, 5th edition
Cases and Materials on Constitutional and Administrative Law, Michael Allen & Brain Thompson, Oxford, 8th edition