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LLBP 1001 Constitutional And Administrative

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LLBP 1001 Constitutional And Administrative

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LLBP 1001 Constitutional And Administrative

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Course Code: LLBP1001
University: De Montfort University

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Country: United Kingdom

Question:

Critically analyse the concept of separation of powers by focusing on the difference between the pure version and the partial version of the separation of powers. Does the absolute separation of powers exist? Answer this question by considering and comparing the US and British models.

Answer:
Introduction:

Separation of power is the system of governance by which the organs of the government are kept separated under a watertight compartment. The three organs of the government, namely the Legislature, Executive and Judiciary has been bestowed with their own powers and responsibilities and by the grace of the concept of separation of power, they do not have the authority to interfere into each other’s function. It is essential for the organs to be separate and not interfering with the each other’s function. It is one of the most basic concepts, which is present in all modern democracy. It strives to limit the interference of other organs into the function of another, thus limiting corruption within the organs of the government with the help of the checks and balance way of governance. It also looks out to distribute the concentration of power that is unchecked so that the inefficiency and autocratic approach of the organs are avoided. However, it is not equally accepted and applied in every form of government. Some of the governments use a much more relaxed version of the traditional theory of separation of power. Every nation has its own extent to which this theory is applied. The United Kingdom has its own threshold where it is kept to a certain limit while the United States strives for a stricter application. This paper strives to analyse the theory of separation of power by comparing the two super-powers: The US and the UK.
Aristotle was the first to mention about the doctrine of separation of powers. He said that there are three aspects of a constitution, namely Deliberative, Official and Judicial. This can be interpreted as the modern day legislature, executive and judiciary, precisely. John Locke, an eminent political thinker in 1690 proposed that power to legislate and execute laws should not be given to the same authority as it would tempt such authority to make use of such powers for their own benefit and would exempt itself from any prosecution. Thus Locke was of the opinion of keeping the body that makes law and the one that execute them separate for a better governance and administration. Later on, Montesquieu, the French philosopher developed the doctrine in the book ‘The Spirit of Law’ where he stated that there would be no liberty or freedom if the authority of adjudication were not kept away from the law-making and law-executing bodies. According to him, if the judiciary is not kept separate and joined with the legislature, it is the citizens would suffer eventually, as the legislator would be the one to decide infringement of law and the judge would be a legislator making laws as per his whims and fancies. The judiciary, if joined to executive, would have the potential of an oppressor, executing anything that infringes the law in its eyes. Montesquieu discussed the necessity of keeping the organs of the government at distance from each other but it did not opine that the legislature and the executive would not have some influence on each other. He suggested of having a government where the organs would not employ or exercise the duty of the other in the way of exercising its own function. Sir William Blackstone elaborated the theory of Montesquieu where he laid down that the doctrine of separation of powers should be exercised in moderation; the separation between the legislature and the executive should be limited, so that there is a balance in the constitutional structure. 
Separation of Powers in the United Kingdom
UK being a country with no written constitution, therefore has is no written jurisdiction of the organs of the government and thus has no formal separation of the power of such organs. However, the separation does exist in a weaker form as there are express overlapping and interference among the organs. The separation of power dictates that the three power governing a state must be separate and must not exercise each other’s powers, however keeping the three organs completely separate from each other practically as well as theoretically impossible. Following this facet, the organs of the government of UK has a close relationship among them, which made Walter Bagehot comment in the 19th century that it is nearly a “fusion”.

The Legislature and the Executive:

  In fact, many government Ministers comes from one of the bicameral houses of Parliament, though it is limited in number. Other than this, most executive members are abstained from involving with legislative functions like holding offices or getting involved in political affairs. The crossover or the involvement is limited to the executive officials elected or nominated as ministers. Like, the Prime Minister holds a substantial amount of power and responsibility on behalf of the executive as the leader of the ruling party and as the face of the present government for advocating their policies. Therefore, it is quite clear that the executive dominates over the legislature as the government is formed and taken over by the party with the majority votes in the House of Commons, thus making it normal for the legislature to receive a substantial volume of pressure from the executive. The governments tend to controls or influence a major portion of legislative work even though it is legislature’s job to do. Although, the legislature has the authority to pass a vote of no confidence against the government for its dissolution, yet it is a rarely phenomenon witnessed in the history of political governance of the UK. Delegated legislation being a significant phenomenon, it is enjoyed by the executive body that deviates from the rule of separation of power, yet it is important and necessary to scrutinize the actions of the government that tend to be oppressive towards the citizen at times. Therefore, it can be said that the legislature and the executive body of the United Kingdom is intertwined with each other to a great extent, which speaks for a weak application of the doctrine of separation of powers.

The Executive and the Judiciary

Although being a part of the Executive body, the Privy Council is the supreme and independent court. Since the Constitutional Reform Act of 2005, the Lord Chancellor is not involved in the functioning of the judiciary. However, the Attorney General in Wales and England, and the Lord Advocate in Scotland perform quasi-judicial functions yet are members of the Executive body. The Judiciary is the only body that enjoys independence. It is free from any interference from the other two bodies, guaranteed by the statutes, precedents and constitutional conventions. The judges of the Privy Council are not hindered or dismissed arbitrarily without rational cause and prior notice. Similar protection and privilege is offered to the judges of the lower courts. The executives cannot dismiss members of the tribunal without valid grounds as well. It is an important factor by which the government is abstained from abusing its power irrationally. However, the government many a times takes up initiative to point out transparency and fairness of the judgments passed by the courts. The court is extremely particular while working on a dispute involving the government as one of the party to such dispute. In addition, there is complication and confusion pertaining to the role and scope of the Home Secretary in penal provision and judgments regarding the sentencing of the convicts. In the case of M v. Home Office it was stated that the Executive and the Judiciary would respect and not interfere in all the decisions that each of the organs would take for carrying out its functions. The court and the Home Secretary jointly consents and sign the official order of the Extradition of the British nationals, otherwise such order has no effect. 

The legislature and the Judiciary

The Judiciary takes up certain functions of the legislature in the disguise of court function which actually strengthen and empowers them and makes them free from the other two organs of the government. The judges of the Supreme Court are not treated as a part of the House of Lords, as unlike that of the year 2009 when the judges or the Law Lords of the Supreme Court used to be held as a member of the House of Lords. Fortunately, the establishment of the Supreme Court dealt and settled its ambiguity of the capacities that it fulfilled earlier. It has now been clearly mentioned that the members of the parliament would not hold full-time positions in the Judiciary. Such departure of the Judiciary from the House of Lords has led to a bigger confusion and tension among the other two organs of the state. This is made the judges unable to put forward their opinions of the proposed bills and amendments and similarly, the members of the parliament are unable to raise question of the decisions of the judges to hold them accountable for the judgments.
However, the legislative body which is the parliament still holds the authority to impeach the judges of the Supreme Court and other lower courts in case of severe misconduct and for other criteria that violates their professional threshold. The two houses of the parliament have the authority to impeach a judge by passing a jointly agreed motion. On the other hand, the courts are the interpreter of laws made by the legislature which gives them the authority to read and bring out the meanings of the statutes made by the parliament, while it is also evident that the judiciary cannot declare a law void unless it violates the constitutional conventions of the country.
Therefore, to conclude the position of the three organs of the government in the UK, it can be clearly claimed that the organs have a definite inter-connection with each other and they share each other’s functions to some extent as well. They portrays the partial version of the theory that needs the organs of the government to be separate from each other yet sharing slight connection between them without interfering into each other’s business completely.
Separation of power in the United States
The doctrine of separation of power that keeps the three organs of the government, namely the legislature, the executive and the judiciary, completely separate from each other’s control is strictly followed in the United States. They keep the organs absolutely away from each other’s interference to keep a check on abuse of power.  They maintain such strict separation by way of the method of Checks and Balances.
Legislative power
The legislative functions are carried out by the ‘Congress’ which is the Parliament of the Unite States. The Congress is bound by the non-delegation doctrine which restricts it from delegating its legislating responsibilities to the other organs of the government. In the case of Clinton v. The city of New York, it was held by the Supreme Court that the Congress has no authority to delegate a veto power to the President.
However there has been instance of delegation of power to the judiciary by the legislature in the case of Wayman v. Southard where the court had laid down judicial procedure to interpret and make insertion in legal provisions. It was held that the Congress had unconstitutionally delegated power to the judiciary. However, Justice John Marshall supported such delegation and stated that important matters must be differentiated from ordinary course of things. Under such important circumstances, such delegation should be treated as a mandate to fill up the necessary gaps. The Supreme Court had not declared a delegation of power unconstitutional until the 1930s.
Executive power
The President of the United States is vested with the supreme executive power who is appointed as the head of the Armed Forces of the nation. Although he is the supreme commander of the executive power, yet he receives aids and advice of the Senate to ensure that the laws made by the legislature are sincerely executed. However, the Congress has the authority to restrict the President by impeaching him.  The Congress bears the power to pacify the executive from carrying out their power excessively or making an abuse of power.
Judicial power
The Judiciary is the body vested with the power to adjudicate the violation of law. The Supreme Court and the other court under it are established under the law made by the Congress. The courts carrying out judicial powers and functions are called ‘Constitutional Courts’. The  Congress has the authority to establish courts that have legislative attributes, yet has no judicial capacity and its members has no powers as the judges of the constitutional courts. The Supreme Court of the US in the case of Murray’s Lessee v. Hoboken Land & Improvement Co, held that under Common law or Equity, a legislative court holds no authority to adjudicate a suit as it is the inherent function of the judiciary. The legislative courts are only vested with the powers to decide upon matters related to public rights that involve the government and the citizens.
By analyzing the US model of the doctrine of separation of power, it could be deduced that the country follows the theory rather strictly, than the UK. Although there is stringent separation between the organs, yet the Congress is enjoying a supremacy over the other organs and posing interference over them to some extent. Therefore it can be said that it may not follow the partial version of the doctrine completely, yet it neither follows the pure version as well, as there traces of legislative interference can be found over the other organs of the government.
Conclusion
The two models of the theory of separation of power portray two different forms or version of it. The UK model clearly lays down a partial version of the doctrine. It can be stated that the doctrine of separation of power is not followed purely, but partially in the scenario of the United Kingdom where the three organs are not in a water-tight compartment. While, the US model follows it quite strictly to a great extent. Yet, the US model too shows some signs of overlapping of the organs, especially the Congress having supremacy over the others. Therefore it can be concluded that the so-called ‘pure version’ of separation of power is a myth and it does take some involvement of the organs of the government into each other’s territory to maintain a check and balance of power.
Bibliography
Bagehot, Walter. “On the Metaphysical Basis of Toleration.” New England Review 37.3 (2016): 187-189.
Clinton v. City of New York, 524 U.S. 417 (1998)
Dry, Murray. “Checks and Balances.” The Encyclopedia of Political Thought (2014): 461-463.
Goodnow, Frank J. Politics and administration: A study in government. Routledge, 2017.
Hart, Herbert Lionel Adolphus. “Positivism and the Separation of Law and Morals.” Law and Morality. Routledge, 2017. 63-99.
Huq, Aziz Z., and Jon D. Michaels. “The Cycles of Separation-of-Powers Jurisprudence.” Yale LJ126 (2016): 346.
M v Home Office [1993] UKHL 5
Mojapelo, Judge Phineas M. “The doctrine of separation of powers.” Advocate 26.1 (2013): 37-46.
Möllers, Christoph. The three branches: a comparative model of separation of powers. Oxford University Press, 2013.
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)
Raz, Joseph. “The rule of law and its virtue.” The Rule of Law and the Separation of Powers. Routledge, 2017. 77-94.
Shackleton, Robert. “Montesquieu, Bolingbroke, and the separation of powers.” Charles-Louis de Secondat, Baron de Montesquieu. Routledge, 2017. 405-418.
Waldron, Jeremy. “Separation of powers in thought and practice.” BCL Rev. 54 (2013): 433.
Wayman v. Southard: 23 U.S. 1 (1825)
Wilson, Woodrow. Congressional government: A study in American politics. Routledge, 2017.

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