Development of Powers withing the British Constitution

Development of Powers withing the British physical compositionthe description of British governing as an electoral dictatorship is no longer appropriate. (V. Bogdanor The New British Constitution (2009) Oxford, Hart).Discuss, considering in particular Bogdanors argument that the separation of military groups has been change within the British Constitution in recent years.Britain is described as non having a written record, instead it is simply a set of inductive generalisations1 which micturate resulted in Britain non having a formal separation of powers. Due to this need of structure, the power within the constitution merchant ship become concentrated to a single group. Consequently an shape which would be held as undemocratic in places where in that respect is a written constitution e.g. the United States, forget not be in Britain.This essay aims to analyse the doctrine of the separation of powers, focusing on how the article of belief operates in the British Constit ution where the separation among the branches of regime is not strictly adhered to. It will examine how this entwining relationship has led to Britain living in an elective dictatorship opposed to the democracy it is advertised to be. Additionally, it will consider how the recent developments of the constitution, including the introduction of the Constitutional elucidate Act 2005, has led to the separation of powers existence strengthened therefore the democracy of Britain increasing.The separation of powers is ane of these principles that is found, in one form or another, in most modern constitutions2. It is a feature predominantly in constitutions which operate a system of government that is based on the law.The importance of the doctrine is signifi stackt because it underpins the way the power is used within a state. Nowadays, it has been recognise as having a crucial role in the constitution it remains important to distinguish the primary involvements of law-making, law-e xecuting and law-adjudicating. If these distinctions ar abandoned, the concept of law itself can only survive.3 Poor division of power between the different organs would mean it is impossible to pr all the samet abuse therefore a dictatorship could arise.The principle suggests that the aline way to separate the power is to divide it equally into three separate organs, distributively with independent roles from each other. If each of these branches perform a different sour then the constitution will run efficiently. The branches today are kn stimulate as the legislative- who create law the executive director- obligated for the day to day running of the constitution the judiciary- they apply the laws. This mode if these divisions are adhered to then the constitution will successfully run as an organised democracy.The Greek Philosopher, Aristotle, was the first to classify the government as being split into three elements The three are, first, the deliberative, which discusses everything of common importance second the officials and third, the judicial element.4 These distinctions are based purely on a political entity5whereas todays savvy of the principle focuses more on different branches of the government. Todays theory comes from the French Constitutional Theorist Montesquieu who popularised the doctrine in his book, the Spirit of the Law6. He breaks down the institutions as legislatures, executives and settle who dress certain specific aims making laws, executing laws and adjudicating disputes about laws7.These branches can be translated to the British Constitution. The Legislative branch is made up of parliament whose function is to pass legislation which regulates the citizens and to scrutinise the work of the executive in order to ensure that they are not abusing their powers. Britain has a bicameral legislative branch which means that it is composed of two chambers the sept of masters and the House of Commons. The members of the House of Commons are elected by the British public and the party with the most seats form the government. This means that it is a fairly elected democracy.In Britain the role of the executive is to formulate and implement policies. It is led by the anthesis Minister who is responsible for the overall conduct of the government and the ministers who are the head of each department.The role of the judiciary is to interpret the legislation and apply the law in accordance with how Parliament intended it when they created it. The judicial branch covers all judges however, it is those which sit in the higher courts who are most important to the operation of the British Constitution because they are in a position to challenge the government and ensure that it functions with the law.It has been argued that in Britain, the result of not having a codified constitution is that there is no consequences in place if one branch exceed the limit of power they have according to the separation of powers theor y. The principle came under significant criticism around the 1980s. sensation of the main criticisms was by Brazier who stated that the arrangement of the British Constitution is at best a weak separation of powers at worst a separation in name only8.Locke, an English Philosopher was concerned with the division of power and the consequence if the separation was not equal. Concentration of power can seriously have-to doe with the organisation and functioning of the constitution. He believes that it may be to a fault create a temptation to humane frailty apt to grasp for Power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make 9 This means if there is too much power concentrated to one person, or to one branch of the government, it would lead to the system as a whole being corrupt. It would provide mass with the opportunity to use the system to their own advantage, essentially creating laws others do not agree with thus creating a dictatorship.The idea that too much power can result in one group using it to their advantage can be seen within the British Constitution, where there is m whatever circles between the branches. This led to victor Hailsham describing the structure of this constitution as an elective dictatorship10 because although the government is elected by the public, they abuse the amount of power they have been given and use this to their own advantages- they effect like dictators.In theory it appears that the roles of each branch are clearly distinguished however, this is not the case in practice. However, Montesquieu also recognises that the division of power between the organs of the state is not incessantly amicable, there can be overlap between the branches and it still be a democracy. This idea there is overlap in the British Constitution can be supported by Parpsworth who claims a separation of powers is not, and has neer been a feature of the UK constitution. An examination of the three powers reveals that in practice they are often exercised by persons which exercise more than one such power.11This idea can be seen by the role of the Lord premier who had a position within each of the three government branches. He had a legislative function of being the speaker of the House of Lords, an executive function of being a member of the cabinet and a judicial function as being the head of the judiciary. Being the head judge gave the Lord premier the right to participate in judicial proceedings and to appoint judges. This shows that there is more than an overlap between the branches instead it shows that the same person clearly does exercise more than one power.12 regardless of Montesquieu stating all would be lost if the same man exercised these three powers13. Evidently this suggests that Britain is an elective dictatorship because there is no labor on the amount of power that each branch can administrate within society, they can influence the functioning of the constitution without regard to the view of the public. The Lord Chancellor was in a cockeyed position to abuse his powers he could provide himself with more benefits or use the arrangement to influence the branches and allow one organ to dominate the whole constitution. Clearly, his position within all three ordnance of the government does not conserve the doctrine of the Separation of Powers.However, it could be argued that even though there is clear overlap between the roles, the question of abusing power was irrelevant as the Lord Chancellor optionally chose to remain impartial to each branch when undertaking the particular function it required in recent years, the Lord Chancellor had rarely sat as a judge and never on matters affecting the government. This suggests that the British Constitution was never operating in a way which could be described as an elective dictatorship14, instead it has alw ays been an independent system15. However, there are exceptions to this Lord Mackay, however, did sit in the leading case Pepper v Hart, 1993 AC 593, on which he offered a differ judgement16 which shows that there are exceptions and the lines between the branches have been overstepped.Regardless of this only being an exception there was a clear overlap in the way the functions of the branches were being performed so the Labour Party, the current government at the time, introduced the Constitutional Reform Act 2005 which led to dramatic reforms, specifically regarding the position of the Lord Chancellor. His position at the head of the judiciary has now been replaced by Lord Chief Justice who is now in charge of the deployment of judges and allocation of work in Courts in England.17 Additionally, his legislative function as the speaker of the House of Lords has been replaced by the Lord Speaker. This means that since the reform, his function is now purely in the executive branch of the government where he remains to be a member of the cabinet.18Evidently, the Constitutional Reform Act 2005 has strengthened the doctrine of the separation of powers in Britain as the overlaps between the arms have been reduced thus the power distribution has been equalised. However, not everybody agrees that the reforms towards the Lord Chancellor has increased the democracy in Britain. His role was described as a necessary evil vital to ensuring the smooth running of the separate estates. 19 This criticism suggests that the Labour Government removed the connection between the branches which may reduce the metier of the organisation of each function. However, the reform was essential because if these distinctions are abandoned, the concept of law itself can scarcely survive.20Another problem with the separation of powers in the British Constitution is the overlap between the legislative and executive. Theoretically, the executive initiate the creation of new laws and it is for t he legislatures to debate and pass the proposals once the content has been agreed upon. This means that the legislative is supposed(p) to have control over the executive however, in practice it is clear that the Executive tends to dominate the legislature, because the party and electoral systems usually produce a strong majority government, what Lord Hailsham called an elective dictatorship21. This means that the executive is therefore present at the heart of Parliament.22Being at the centre of the government structure allows the executive to have strong persuasion over the legislatures, meaning they can get the result they wish without the House of Commons standing in their way. This supports Bagehots description of the British Constitution being the close union, the nearly complete fusion of the legislative and executive powers23 as it appears that they operate as one branch the executive.This intertwining relationship can be seen as there is a strong convention that ministers ar e members of one or other House of Parliament24 as well as the Prime Minister being a member too. As a result they will have strong influential powers over the decisions of both the executive and the legislative. This is because the ministers will be less likely to challenge the decisions of their party therefore their activities will not be questioned so they will be able to initiate any changes they wish. This means they are able to operate an elective dictatorship without checks to the amount of power they are using.However, it could be argued that the separation of powers still exists because there are procedures in place to ensure the doctrine remains a strength of the British Constitution. For example, there is a limit on the number of ministers who can be members of the House of Commons. This will ensure that the amount of influence they have is limited. Additionally, there is the opportunity for a backbench revolt. This is where a large number of MPs who are not ministers or in cabinet for the leader, vote against them to try prevent them from carrying out their propositions. One example is from 2001 where more than 100 Labour backbenchers rebel over the attempted remotion of two Labour MPs from the chairmanship of important parliamentary committees.25 which led to the reinstatement of two Transport and Foreign Affairs Select Committees. This suggests that although the executive try and overstep their powers by going against the opinions of the public which could effectively mean Britain is a dictatorship, there are checks and processes in place for their decisions to be effectively challenged.Members of cabinet can, and have, also taken stands against their own parties.A recent example of this can be seen by Tony Blair who proceeded with the Iraq War despite the majority of his cabinet disagreeing with his actions and a further two resigning. This example shows that the government are not persuaded by the actions of their cabinet or backbench revolts. This shows the need for checks to prevent the abuse of power is essential. The legislature has the duty to ensure that the executive do not overstep this limit ensuring that control is maintained, reducing the chance of an elective dictatorship. These checks mean that Bogdanors suggestion that we are less of an elective dictatorship is correct the regulations ensure that cypher gains too much control.In conclusion, the doctrine of the separation of powers is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have their distinct and largely exclusive domain.26 Before the Constitutional Reform Act 2005, the power was not constrained to the three separate organs. Instead the distinctions were not clear therefore the power was subject to being abused and concentrated to different branches. The reforms led to a redistribution of power in the British Constitution which has effectively led to a minify of living in an elective dictatorship, just as Bogdanor suggests.BibliographyAllan, T. R. S.. First principles the die hard of Law and Separation of Powers. Constitutional justice a liberal theory of the rule of law. 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Allan,Constitutional Justice A Liberal Theory of the Rule of Law (Oxford, 200 3) 314 Aristotle Politics as citied in H Barnett, Constitutional Administrative Law(7th, Routledge, 2009)5 Clifford Bates, The Fundamental Similarity Between Montesquieu and Aristotle (academia.edu 2005) http//www.academia.edu/5192735/THE_FUNDAMENTAL_SIMILARITY_BETWEEN_MONTESQUIEU_AND_ARISTOTLE accessed 11th January 20146 C Montesquieu ,The Spirit of the Laws (Cambridge Texts in the History of Political Thought)(1st, Cambridge University Press, Oxford 1989)7 Clifford Bates, The Fundamental Similarity Between Montesquieu and Aristotle (academia.edu, 2005) http//www.academia.edu/5192735/THE_FUNDAMENTAL_SIMILARITY_BETWEEN_MONTESQUIEU_AND_ARISTOTLE accessed 11/01/20148R Brazier,Constitutional Reform Reshaping the British Political System(3rd, Oxford University Press, Oxford 2008) 1089J Locke,Two Treatises of Government(ed. Laslett), chX11, para 143 as cited in A W Bradley and K D Ewing,Constitutional Administrative Law(15th, Pearson) 8110Lord Hailsham, Elective dictatorship The Listen er (21 October 1976)11N Parpworth,Constitutional and Administrative Law(7th, Oxford, 2012) 2012N Parpworth,Constitutional and Administrative Law(7th, Oxford, 2012) 2013C Montesquieu ,The Spirit of the Laws (Cambridge Texts in the History of Political Thought)(1st, Cambridge University Press, Oxford 1989)14Lord Hailsham, Elective dictatorship The Listener (21 October 1976)15 The Lord Chief Justice 2007 Interview200716 V Bogdanor,The New British Constitution(1st, Hart, 2009) 6617Lord Chief Justice (www.judiciary.gov.uk 2014) http//www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/judicial+roles/judges/lord-chief-justice accessed 11/01/201418Constitutional Reform Act 2005 (www.legislation.gov.uk 2005) http//www.legislation.gov.uk/ukpga/2005/4/contents accessed 11/01/201419V Bogdanor,The New British Constitution(1st, Hart, 2009) 6320Allan,Constitutional Justiceas cited in A W Bradley and K D Ewing,Constitutional Administrative Law(15th, Pearson) 8821 D Watts,Understandi ng US/UK Government and Politics A Comparative Guide(Oxford 2003) 3622 R Benwell and O Gay, The Separation of Powers (www.parliament.uk 2013) accessed 11/01/201423 Bagehot,The English Constitution 65as cited in A W Bradley and K D Ewing,Constitutional Administrative Law(15th, Pearson) 7824 A W Bradley and K D Ewing,Constitutional Administrative Law(15th, Pearson) 8425 Blairs backbench rebellions (www.news.bbc.co.uk 2003) http//news.bbc.co.uk/1/hi/uk/2802791.stm accessed 11th January 201426 R v hearthstone Secretary1995 2 AC 513as cited in A W Bradley and K D Ewing,Constitutional Administrative Law(15th, Pearson) 78