Separation of Powers in the Uk

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This essay will seek to analyse the doctrine of the separation of powers and the importance of its presence within a constitution. Particular emphasis will be placed on identifying how this idea is incorporated into the United Kingdom’s (UK) constitution and the effect that recent developments of constitutional reform such as the introduction of the UK Supreme Court in place of the House of Lords has had. The doctrine of the separation of powers is an idea that can be seen in writings as far back as the time of Aristotle. This concept states that any constitution relies on the ‘three pillars of state’ which are the executive, legislative and judiciary. Montesquieu formulated this concept in the eighteenth century and in ‘L’Esprit des Lois’ wrote; “All would be lost if the same man or the same body of principle of men, either of nobles, or of the people, exercised these three powers: that of making laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.” Montesquieu’s writing sums up the idea that if in any constitution at one time, more than one of these powers are controlled by the same ‘man’ or ‘body of men’ then the power instigated becomes arbitrary and to effect a dictatorship. These three powers can be seen within the UK’s constitution, the Government (executive), Parliament (legislature) and the Courts (judiciary). The UK has been criticised suggesting that there is no separation of powers within our constitution due to its un-codified and thus unclear nature making it hard to establish three independent bodies. This was the case for a number of reasons; firstly within the UK there are overlaps between the so called ‘powers of state’ an example of this is the set-up of government. Members of the Prime Ministers Cabinet are also Members of Parliament who have executive powers aside being able to vote in parliament, that in turn creates a direct overlap between executive and legislative powers. This can be seen as recently as this year with members of the Cabinet like Deputy Prime Minister Nick Clegg having executive powers whilst being able to vote in Parliament on the Tuition Fees Bill 2010. The courts also appear to exercise legislative functions along with their judicial roles through means of the common law. Judges for years have been creating and changing laws as they see fit and still to this day have the power to make binding precedents. However, the position of Lord Chancellor was regularly criticised as it held presence in all three of the ‘pillars of state’. It would appear from this that indeed the United Kingdom does not exercise the concept of separation of powers. In February 2004 the House of Lords introduced what was eventually to be The Constitutional Reform Act 2005 . This act looked to tackle two of the perceived main criticisms of the UK constitution namely the role of Lord Chancellor and to bring in a Supreme Court to take over the role of the appellate committee of the House of Lords in the judiciary as prior to this members of the House of Lords were members of both the legislature and the judiciary. The Supreme Court of the United Kingdom was thereby opened in 2009 however; it would appear questionable as to whether it has really brought around a separation of powers. If a logical approach is taken then this introduction of a new chamber has made a big change to the constitution as no longer would it be possible for law lords to sit in the judiciary and vote in parliament however, if we take an alternative view then the Supreme Court has not really changed anything within the UK’s constitution. Due to the unwritten format of our constitution it is known that many laws and procedures that countries such as the USA (who possess a written constitution) have backed up by the documented constitution itself, we very much rely on the role of convention, habit and tradition to hold the three powers in check. It has very much been convention that...
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