Separation of Powers

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"The 'separation of powers' is incomplete within the current unwritten UK constitution." The ‘separation of powers’ is doctrine of the UK constitution first termed by Montesquieu, a French political philosopher, in his 1748 book De l'esprit des lois (The Spirit of the Laws) he argues that there are three bodies of government – the executive, legislature and judiciary – which each have a discrete area of power with clear functions that no other body can imitate: this is true ‘separation of powers’. The purpose of which is to limit state power so that no element has an abuse of power hence protecting civil liberties. By Montesquieu’s definition, the separation of powers is incomplete as there is clear overlap between the different branches of government, notably the legislative and executive. Contrastingly, the revisionist definition of the separation of powers as, remarked by Lord Bingham, claims that while the doctrine of the separation of powers is weak by the terms of the classic characterisation, “the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so” This convincing revaluation of the separation of powers principle indicates that under the new “partial” definition, the separation of powers is a clear, complete doctrine in the UK unwritten constitution. By Montesquieu’s characterisation, the separation of powers is incomplete within the current constitution as argued by Bagehot. In The English Constitution, Bagehot asserts that there is a “close union, nearly complete fusion of the executive and the legislative powers” and claims the Cabinet act as the connecting link by which he defines as “a committee of the legislative body selected to be the executive body”. This violates a pivotal principle of the separation of powers doctrine, as stated by Vile, that the persons who compose these three agencies of government must be kept separate and distinct. Thus showing the separation of powers is incomplete within the UK constitution. Furthermore, the overlap of the legislative and executive is shown in the fact that government ministers are drawn from either of the Houses of Parliament; Also, up to 2005, the Lord Chancellor held a position in all 3 branches of government: a Cabinet Minister, a member of the House of Lords and head of the Judiciary. These instances violate a key principle of the ‘true’ separation of powers: that no individual can be a member of more than one branch. Furthermore, Courts legislate in the sense that they develop principles of the Common Law thus undertaking the functions of both the judicial and legislative branch. This serves as evidence that, in accordance with Montesquieu’s belief, the separation of powers is incomplete within the UK constitution. However, the government has introduced legislation in order to limit the overlap between the different branches of government. In order to prevent the executive branch dominating Parliament the House of Commons Disqualification Act, 1975 limits the number of ministers who sit in the House of Commons to 95 persons. This restricts the influence of the executive branch on the legislative process thus further separating the roles of each branch. Also, the Constitutional Reform Act reduced the powers of the Lord Chancellor which was frequently criticised as violating the doctrine of separation of powers, as well as the European Convention of Human Rights, by exercising executive, judicial and parliamentary functions. The Act ended the Lord Chancellors role as Head of the Judiciary with the creation of a new position: the Lord Chief Justice; the Act also severed the direct link between the Lord Chancellor and the speaker of the House of Lords. This indicates a shift towards a more distinct separation of powers in line with the view of Montesquieu thus completing the doctrine within the UK constitution. It is possible to assert that in the UK constitution, it is...
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