The idea of Separation of Powers suggests that governance of the State should not fall solely under one organ of the State which could be identified as the Executive, Legislature and Judiciary. Aristotle in his Politics submitted this theory but the most famous version was being suggested by Montesquieu in ‘De L'Espirit des Lois'. His arguments indicate that there were three functions of government, Legislative as the law-making body, Executive as the law-applying body and Judiciary as the Law-Enforcing body. Early findings indicates that Montesquieu theory was unreachable since it is almost impossible for United Kingdom(UK) to have full Separation Powers of the three organs.
The Constitution Of United Kingdom
The UK constitution is largely unwritten which means that there is no one piece of material stating the constitution of the country. The constitution in seen to has grown over the years in history rather than having a piece of legislation stating the constitution like most of the countries. The constitution could be found in fundamental documents, statutes, case laws as the legal resources and some non legal-resources as the constitutional convention. They can be drawn from the Magna Carta (1215), The Petition of Rights (1628), Bill of Right (1689), Act of Settlement (1700), Treaty of Union (1706) and several other statues. The constitutional conventions are non-legal rules guiding the three organs of the state. The Separation of Powers is vital in the constitution as suggested by A.V. Dicey's rule of law.
The three organs could be identified as the Legislature, Executive and Judiciary. All three organs should have different powers and do not interfere the powers of another. As being mentioned before, this theory seemed impossible given the constitutional convention in UK.
The executive, comprising the Prime Minister and his Cabinet Minister and the Crown, formulate and implement government policies across all governmental activities. Parliament, being the Sovereign law making body (legislature) comprises the Crown, the elected House of Commons and the currently unelected House of Lords. The House of Commons which is considered superior to the House of Lords is made up of elected Members of Parliament who represent their own constituencies. The Judiciary, however, sits all the judges in the Courts of Law including those who hold judicial office in tribunals and the lay magistrates.
The Lord Chancellor
Prior to the Constitutional Reforms Act 2005, Lord Chancellor was politically appointed member of the cabinet, speaker of the House of Lords and the head of Judiciary. As a senior judge, the Lord Chancellor was entitled to participate in judicial proceedings, although by convention he would not adjudicate cases which involved the government or were openly political in nature. He also has the rights to appoint judges. This obviously does not preserve the theory of Separation of Powers as he can be found to be in all three organs of the state.
As a rectification step, the Labour Party as the government of the day enacted the Constitutional Reform Act 2005, which removed Lord Chancellor from his office. His office will now be filled by a member in either House and need not be a lawyer. His position as the head of judiciary is now replaced by lord chief justice. House of Lords in future will elect its speaker from one of its members.
Previously, given the rights to participate in all three functions, the Lord Chancellor did actually have the ability of abusing his power. As he is the Speaker for the House of Lords, a member in the Cabinet and the head of Judiciary, he could have provided himself or his favoured function, the Legislative, Executive or Judiciary with more benefits. With the Constitutional Reform Act 2005, removing him from his office has lessened the possibility of abusing such power due to the sufficient Separation of Powers.
Legislature And Executive
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