Separation of Powers
Separation of Powers:
Separation of powers is a model for the governance of democratic states. The state is divided into branches, and each branch of the state has separate and independent powers and areas of responsibility. It is the division of the legislative, executive, and judicial functions of government among separate and independent bodies. Separation of Power is a method of removing the amount of power in any group’s hands, making it more difficult ton abuse. According to (2000), the concept of a ‘separation of powers’ is an important one in constitutional thinking. Again it is a concept which has a superficial simplicity but also a deeper complexity, not least because it has both a descriptive and a prescriptive element. The idea has a long history in political thought right back to Aristotle, through Locke and Montesquieu. The conscious adoption of ‘separation of powers’ principles by the framers of the American constitution in the late eighteenth century ensured its importance in subsequent constitution-making. It is based on the idea that there are three classes of governmental function, each carried out by a distinct organ of government. In descriptive terms, these are the – executive function, carried out by the Executive (government), legislative function, carried out by the Legislature (parliament, assembly), and judicial function, carried out by the Judiciary (the courts) (). The idea of balance was held to be fundamental, producing a practical form of ‘mixed’ government that prevented tyranny while enabling effectiveness. The growing dominance of the Commons was balanced by the influence of the Crown and the Lords, thus securing a constitutional equilibrium. Alongside these ideas of balance and mixture was the concept of a separation of powers (between executive, legislative, and judicial functions) as an axial constitutional principle (2003).
The House of Lords:
Members of the House of Lords are mostly appointed by the queen, a fixed number are elected internally and a limited number of Church of England archbishops sit in the House. The works of the Lords complement the business of the Commons. It also acts as a revising chamber for legislation. A group of salaried, full-time judges known as Law Lords carries out the judicial work in the House of Lords, which is also the highest court in the United Kingdom. According to (1972), the House of Lords shares most of its functions with the House of Commons, but its judicial functions as the highest Court of Appeal are peculiar to itself (p.365). It is very evident that the House of Commons holds more power. The members of the House of Commons were elected directly by the people to form the Government.
House of Lords Reforms:
The Parliament Act 1911 together with the parliament Act 1949 enables the Commons to pass legislation without approval from the Lords but subject to certain time delays. The House of Lords was granted the power to delay legislation but not to prevent it. (1972) The Life Peerages Act, 1958, removed the general disqualification to which women had formerly been subject in respect of membership of the House of Lords. The Act permits the conferring of life peerages on women, but it did not remove the disqualification upon hereditary peeresses from sitting and voting in the House in their own right. This disability was ultimately removed, however, by the Peerage Act, 1963, and a woman holding a hereditary peerage in her own right is now qualified for membership of the House of Lords on the same conditions as a man in similar circumstances (). The Peerage Act of 1963 made Peeresses in their own right admitted to the House, as were all Scottish peers. The Act enabled hereditary peerages to bi disclaimed for life. The only other serious and Government-inspired attempt to reform the House of Lords prior to the arrival in office of ‘New Labour’ in 1997 was the ill-fated Parliament (No. 2) Bill which was introduced by the second Wilson Administration in 1968. This provided for the creation of a smaller Second Chamber and a two-tier membership consisting of those peers with the right to vote (about 200-250 active Life Peers plus the Bishops and serving Law Lords) and those non-voting peers who would only be entitled to sit and speak (made up of irregularly attending Life Peers and hereditary peers). With the planned creation of about 80 more Labour Life Peers, the idea was that no single party would have a permanent overall majority, but the Government of the day would have a 10 per cent majority over the combined Opposition parties with cross-bench peers holding the balance.
Since 1997, the United Kingdom government has been seeking to reform the House of Lords. Reforming the House of Lords was presented as one of the central elements of Labour’s programme of constitutional reform when it came to power in 1997.To make the House of Lords more democratic and representative, the right of hereditary peers to sit and vote in the House of Lords was ended by statute. Originally, both Houses of Parliament were granted equal legislative powers. The agreement of both Houses was necessary before a bill could be submitted to the Monarch for royal assent. A deal was completed between the government and the Lords in 1999 removing most of hereditary Peers. As a result, the House of Lords Act 1999 was passed leaving among the majority of appointed peers a rump of 92 Hereditary peers until the second phase of reform was completed. The House of Lords Bill was introduced to remove hereditary peers.
According to (1996), The past century has been punctuated by attempts to reform the Lords, and its survival up to now in its present form is largely because there has been little agreement on how to do it. The main difficulty is that any change may radically affect its status, and consequently, the balance of power in Parliament. At present, the House of Lords is indisputably the less significant House. Though it performs a useful function in examining legislation, and in providing a degree of safeguard against the abuse by a government of a Commons majority, its lack of real legitimacy derived from popular election means that it cannot seriously challenge the Commons. If the hereditary peers were to be replaced by elected members, then the Lords might begin to challenge the primacy of the Commons ().
Present Roles of the House of Lords:
The Lord Chancellor:
Past Functions:
The Lord Chancellor was a senior member and an important figure in the government of the United Kingdom. The Lord Chancellor was originally the Speaker or the presiding officer of the House of Lords by right of prescription. The Lord Chancellor formerly heads an office known as the Lord Chancellor’s Office. The Lord Chancellor used to perform several different judicial functions. The Lord Chancellor used to supervise the Court of Appeal of England and Wales, the High Court of Justice of England and Wales and the Crown Court of England and Wales as the President of the Supreme Court of England. He also used to participate in judicial sessions of the House of Lords. The Lord Chancellor used to be a member of the Judicial Committee of the Privy Council.
Present Functions:
The Constitutional Bill was introduced by the government in the House of Lords in 2004. The bill sought to abolish the office of the Lord Chancellor and transfer his duties and functions to other officials. The Lord Speaker assumed some of the Lord Chancellor’s functions such as chairing debates in the Lord’s chamber and speaking for the House on ceremonial occasions. The Department for Constitutional Affairs was created in replacement of the Lord Chancellor’s Department. The Lord Chancellor was also holds the position of Secretary of State for Constitutional Affairs. The creation of a new Judicial Appointments Commission ended the Lord Chancellor’s past position as head of the judiciary and power to appoint judges. The Department for Constitutional Affairs is responsible for constitution reforms. Its concerns are the administration of the Courts, legal aid and the appointment of Judiciary. It is also responsible for issues relating to human rights, data protection and freedom of information.
The Supreme Court of the United Kingdom:
The Supreme Court of the United Kingdom will be created under the provisions of the Constitutional Reform Act 2005. The Judicial functions of the Law Lords in the House of Lords will be taken over by the Supreme Court. The Supreme Court will be the final court of appeal in all matters under English law, Welsh law and Northern Irish law. The new Supreme Court will put the relationship between the executive, the legislature and the judiciary on a modern footing. It will also ensure the independence and transparency of the judicial system. The Supreme Court will be independent of other branches of government and would carry a badge of independence and neutrality in the eyes of the people. It is essential to lessen the risk of public perception that the decisions of the judges could be politically motivated. The key objective of creating a Supreme Court is to achieve a full and transparent separation between the judiciary and the legislature.
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