Monday, October 23, 2006

Separation of Power - Public Law

The separation of power is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the State are not concentrated in any one body.

Under the generally uncodified, largely unwritten UK constitution, there is no strict separation of powers that exists. It is basically a system for check and balances which ensures that powers are not abused.

The identification of the three lements of the constitution derives from Aristotle in his book 'The Politics'. The doctrine of Separation of Power can be traced back to the reign of King Edward I (1272-1307).

Montesqueiu systematically reformulated the doctrine of Separation of Power in his book, 'The Spirit of Law'. He distinguished it into three separate organs, i.e. legislature, executive, and the judiciary. He maintains that members of one organ should not be member of the other; neither should one organ exercise the function of the other.

UK basically adopted the system of 'Parliamentary Executive', blending legislature with the executives. For example, the Home Secretary who is a senior member of the cabinet (executive function) is also a member of the Hous eof Common (legislative function). He also exercise an adjudicative function (judicial) within the criminal process, such as, the granting of mercy and pardon in the name of the Crown.

Another example is the House of Lords, being the second chamber and the Upper House of the legislature, which is also the highest court of last resort in UK. Law Lords and Life Peers also takes part in parliamentary debates.

The prime Minister and his Ministers who are all members of Parliament sit in the House of Commons. These show that the executives are present at the heart of Parliament. By contrast, in USA, the President is not a member of the legislature (Congress) and is elected separately from Congressmen. This may result in the President being of a different political party from the majority of Congressmen. That cannot happen in UK as the Prime Minister will always be the leader of the political party that won a majority of seats in a general election.

Parliament may delegate law-making powers to the government through powers to draft subordinate or delegated legislation. Such legislation is subjected to the ultimate approval of Parliament. Delegated legislation, however, does raise questions about the Separation of Powers between the executive and legislature.

AS the UK constitution is largely unwritten and has eveolved over time, it can be seen that there is no strict separation of powers and the system lies in its constitutional conventions.

For example, the convention of ministerial responsibility ensures the accountability of government to Parliament. The doctrine of ministerial responsibility consists of conventions of collective responsibility and individual responsibility. Collective responsibility means members of the cabinet and non-cabinet ministers as a whole are answerable and accountable to Parliament. Ministers must collectively support the final decisions made by the cabinet, even if they are disagreeable. They must show unity by vote or speech and outside Parliament. If any minister would not support the policy adopted by the cabinet, by convention, he is expected to resign. An example is Michael Haseltine, the then Secretary of State for Defence who resign from office when he could not accept the Prime Minister’s directive to his ministers, that all issues pertaining to Westland Helicopters and any ministerial statements would first have to be cleared by the cabinet.

Individual responsibility means that ministers must be individually responsible and accountable for their own conduct as well as the conduct of their department. Ministers shall take the praise for success and also blames for its failures within their department. For departmental failure, a minister may face a vote of censure and may be required to resign.

In 1963, the Minister of Defence, Mr. John Profumo was found to have been having a sexual relationship with a prostitute, Christine Keeler. Ms Keeler was at the same time found to enjoy a close personal relationship with a Russian Attache’. When questioned, Profumo lied to the House. When the truth emerged, he resigned from office.

In the Crichel Down affair (1954), a public enquiry found that there had been inaccuracies in the report on the land. The report was not check by the relevant minister. The then Minister of Agriculture, Thomas Dugdale accepted responsibility and resigned.

However, there are also cases whereby the ministers may excused themselves from the responsibilities of failure due to departmental mismanagement. This can be seen in the matter of the Service Director of prison who was dismissed after it was revealed that arms and escape equipments were discovered in prison. The Home Secretary at that time, Michael Howard did not resign.

Scrutinising the efficiency and effectiveness with which government have used their resources is handled by the Public Accounts Committee (PAC). The PAC has the task to examine the reports of the Parliamentary Commissioner for Administration (PCA) and the Health Service Commissioner (HSC). Additionally the PAC also considers matters relating to the Civil Services.

Monitoring the privilege of Parliament and the conduct of Ministers is carried out by the Committee on Standards and privileges (CSP). Examining delegated leglislation is the task of the Select Committee on Statutory instruments.

Departmental Select Committees (DSC) established in 1979 provides for scrutinising ministers and bureaucracies to ensure effective control and stewardship.

It can be seen that the House of Commons performs a number of useful functions with varying results. However, it is clear that it could achieve far greater results through the use of more varied procedures, particularly in Committees and far greater use of pre-legislative scrutiny by the expert Select-Committee and Ombudmen, which has already shown some impact.

Recent development in Common Law had raise the issue of judicial encroachment in legislative functions. The incorporation of the ECHR into domestic law via HRA 1998 do raise the question about the preservation of the doctrine of parliamentary supremacy and separation of power. The caveat is to query to what extent membership in EU and ECHR had allowed the courts to adjudicate the legality and validity of the Acts of Parliament.

For example, in the case of R v A (2001), the House of Lords was seen to have utilised s.3 HRA 1998 as a radical tool that portrays a judiciary shift of power from legislative to judicial power. In this case, Lord Steyn did not declare the statute as incompatible but went on to declare s.41 of the Youth Justice Criminal Evidence Act 1999 as 'too widely' drafted in which the Law Lords contrued that the Act had made excessive inroad into the rights for a fair trial which is contrary to s.6 ECHR. In Lord Steyn words: "to bring rights home effectively, s.3 must be the prime remedial measure and s.4 HRA the measure of last resort," which in the words of Lord Simmonds would have been seen as "a naked usurpation of the legislative functions".

However, it must be noted that the HRA 1998 and the ECA 1972 are regarded as partially entrenched and are still subjected to the will of Parliament. It must be remembered that Parliament is still the supreme law-making body, elected by the people, and have the power to overturn judicial decisions. Therefore, there still exist a possibility of express repeal.

In conclusion, it is recognised that certain degree of power and functions between the three organs do overlap, which suggest that although each organ functions within it's own sphere, none is supreme. The sphere of power conceded to Parliament to enact law to regulate it's own procedure is clear example of the existence of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.

1 comment:

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