In the 4th Century BC, Aristotle clearly stated that for a government to have an effective constitution, it must have in place three basic elements. These are a public assembly, various officers of the state and lastly a judicial department. One of the most famous quotes of John Adams is ‘power must never be trusted without a check’. This may be said to mean that in instances that an individual or an institution which is tasked with the authority to rule over a people should never be given the absolute authority to have the absolute authority. Institutions checking on each other may be referred to as the doctrine of separation of powers. Separation of powers is defined as the doctrine that was developed by Montesquieu which required that a country’s government be divided into three definite branches. These are; the legislature, the Executive and the Judiciary. These exact divisions were formulated by John Locke in the late 17th Century.
In the UK, all these branches are tasked with separate functions. These branches are;
The Legislature, which is comprised of the Queen and other elected parliamentarians. The arm is tasked with the function of making laws.
The Executive, which is comprised of the Queen, the ministers and the various public service individuals such the law enforcement personnel and members of the military forces. This arm of the government is required to implement the law and the government policies.
The Judiciary, which is comprised of the Queen, Judges and magistrates. The main function is to interpret and solve disputes in matters pertaining to matters of the law. All these arms of the government are intertwined in one way or the other and for one to function effectively it will in require that the other arm performs its duty as stipulated.
However, due to the fact that the United Kingdom lacks a clear codified constitution, which in most nations helps it in the determination of the clear duties of each arm and further, have in place set functions, the issue of separation of powers within the UK government is normally contested by various individuals who claim that it is non-existent in the UK whereas others opine that it is in existence in the UK.
The people have varying schools of thought on the issue of the existence of separation of powers in the UK. The individuals who are of the line of thought that it exists, claim that by the fact that the various arms of government are is proof enough that separation of powers is in existence within the UK. This line of thought may be summarised by the decision of Lord Diplock in the Duport Steel V Sirs, where in the dicta, he stated that the legislature will come up with the laws and further the judiciary is tasked with the act of interpreting whatever law parliament comes up with. In the ratio decidendi it was stated that in cases that the court will however be guided by the intentions of the law rather not the enactments of parliament. The judges in the M v Home Officecase, decided that each and every arm of the government is required to adhere to the rules of the state and the decisions of the arms must be respected by all other arms.
In, addition to this, it the country has various statutes that have tried to ensure that the actions of the members of these arms act in manner that is just and fair without having external pressures. For example, the members of the public service are disqualified from holding parliamentary offices. The members of the legislature help to endure that the members of the executive carry out their activities to the beast of their abilities. This may be through the scrutiny, the committees such as the select committee and further the ombudsman’s office allows for the executive o help in the checking of the activities of the public servants.
Lastly, among the major characteristics of separation of powers, is the fact that the various arms of government have in place strategies that will enable them to check on each other. The fact that these branches have in place various actions which help in the continuous checks on the other branches of government, it is not wrong if an individual claims that the UK has separation of powers in its government.
On the other hand, the individuals who are against this school of thought claim that the fact that the various arms of government seem to be comprised of the same individuals and hence the fact of the arms checking each other’s actions will be undermined. This is mainly due to the fact that UK has taken the parliamentary system of government where the members of the executive are also elected members of certain provinces. With this it is clear that in instance that the government is comprised of individuals from a particular party and further, they end up having the greater majority in parliament, the government will in most instances have the control of how the legislature functions.
In addition to this, the fact that the members of the senior bench are always appointed by the Lord Chancellor who is a member of the executive will in most instances have a hand in determining how the judiciary functions. This may be argued that the Lord Chancellor will in most instances appoint an individual who will be advantageous to the members of the cabinet.Even though the Lord Chancellor has a hand in their appointment, they have tenure of office in order to protect the independence of the judiciary and help in ensuring that the judges act in manner that is to the best interest of justice and ensure that the decisions arrived at are unequivocal.
The legislature’s upper house may be described as a weak house due to the fact that it lacks an effective upper chamber. Due to its ineffectiveness, it may be a leeway for the members of the executive to act as they please. This then reciprocates in a weak check on the Executive’s side. In addition, to this, it is clear that parliament has a hard tie in questioning and scrutinizing the royal prerogatives. This means that the executive can decide on some vital actions such as deciding to engage in a war without effectively consulting with the members of the legislature.
Lastly, the individuals who take this line of thought, tend to think that the separation of powers amongst the government has not achieved effectively due to the fact that the executive tends to be more powerful in one way or the other as compared to the other branches of government and this means that the activities are not check as desired. This approach tends to consider UK a constitutional form of dictatorship.
In conclusion, in the UK has in place all the three branches of government and this depicts the democratic society which in turns helps to ensure that the nation doesn’t end up being considered to be a dictatorial government.
Advantages and Disadvantages of the Doctrine of Precedent
The doctrine of judicial precedents is defined as the fact that the judges will always decide like cases in the same manner. This means that the judge will always refer to previously decided cases as he or she decides the new case that is before him or her. As per Lord Salmon, in order to avert a huge number of conflicting decisions, then the courts should always take heed to the various previous decisions that were arrived at in similar cases. From his statement, it is clear that reliance on the previous cases as a way of determining cases before them is both advantageous and disadvantageous to the case.
The use of precedents in determining cases is advantageous due to various reasons. These reasons include;
Firstly, it is advantageous due to the fact that it leads to consistency in terms of the decisions within the jurisdiction. This move helps to combat the instances of the various courts determining similar matters differently. The fact of having in place a set guideline and legal principle will enable the courts and the various jurisdictions to be certain in matters pertaining to the law.
Secondly, the fact that judges have the right and obligation to refer to earlier decided cases, then this will help not only the judge but the advocates in determining the case. This is due to the fact that the judge will have an easier time in determining the case and this in turn will help in saving time effort in determining the case. The advocates on the other hand will have the ability of measuring their case and further tackling the matter in a manner that will be enable them have the best outcome for their clients. In addition to this, the certainty of the law will enable the advocates to know instances of the court determining the matter in an unjust manner and with this they will ensure that justice prevails in their matters.
Thirdly, the principle of precedents only works when the country has a clearly defined hierarchy of the courts. This is due to the fact that the lower courts are always bound by the decisions of the higher courts and the appellate courts are bound by their previous decisions. From the statement of Lord Salmon, in cases that an individual is unhappy with the decision that has been reached by the subordinate court, then he or she will have the right of going ahead to appeal the matter to a higher court. This ability to appeal is advantageous since it allows for the members of the public to seek a better chance of getting a just outcome in from an unjust decision that was earlier arrived at.
In addition to this, the higher court will always have the right to overrule cases when it seems fit. In instances that the higher court opines that the decision arrived at by the House of Lords is one which is not as per the laws of the nation or was misinterpreted, then the Supreme Court has the right and mandate to overrule those orders and decisions. This mandate is provided for under the Practice Statement.
Lastly, the ability to decide cases in the manner that was earlier decided helps in the flexibility of the legal system, due to the fact that the courts will have the ability will manipulate the various provisions of the common law rather than having to wait for the members of the executive to come up with new laws, via the lengthy processes.
However, this doctrine may at times be disadvantageous to the individuals. This may be through;
The fact that the lower courts are bound by the decisions of the higher courts and further these courts are bound by their decisions, then the decisions arrived at will cause a sense of rigidity of the statute or cases. This is since as seen from the Utterance of Lord Salmon, the courts are reluctant in changing the decisions that were arrived at in the previous cases.
Lastly, in some instances the judge or magistrate decides the matter in a manner that may be considered to be unjust, then the individuals will be bound by this decision for a very long time unless, a higher court overrules this decision. This may cause various individuals in the society to end up being victims of injustice due to the error of a judge. This may be more severe in instances that the decision arrived at is from the highest court in the nation. Be it the Supreme Court, court of appeal or at times the high court.
In conclusion, Lord Salmon’s statement was one which shows the importance of precedents in the UK and the courts in Wales. This is since the Stare Deicisis is an important action which helps ensure that there’s a set and clear understanding of what the law is and ensures certainty of the law.
References
Primary Sources
Davis v Johnson [1979] AC 264
Duport Steel V Sirs[1980] 1 WLR 142
M V Home Office [1992] QB 270 at 314-5
S.1. House of Commons Disqualification Act 1975
CRA 2005; Act of Settlement 1701; Senior Court Act 1981
Secondary Sources
Conway Gerard, 'Recovering a separation of powers in the European Union' [2011] ELJ 304, 316
TorstenPersson, Gerard Roland and Guido Tabellini, Separation of Powers and Political Accountability (4thedn, Oxford University Press, Oxford) 1163-1202
Vibert, Frank, democracy and the new separation of powers (Cambridge University Press, Cambridge) 15-33.
