The Constitutional Law

 The Constitutional Reform Act was intended to represent a move away from the traditional 'fusion' model of the British constitution and towards what was said to be a more explicit separation of powers. Discuss.

Constitutional law is the laws and political policies that govern the United Kingdom, giving procedures relating to authorities and regularities, although, the United Kingdom has no written constitution, it still has to abide by the rules that were put in place to look after civilians and the state, “the result of centuries of legal precedent. Dicey called this a judge-made constitution and he viewed this form of constitution to be superior to a written constitution”, (boulet, 2002) therefore defending the rights of the individuals, the constitution is said to originate from around the time of Oliver Cromwell, although it is also said that it was established around the time of the Battle of Hastings with the constitution as being one of parliamentary sovereignty.
When we actually study the constitution that the United Kingdom has, it is believed that one rules with definitive control, for example, a monarch or prime minister, this though, is clearly not the case, as the UK has both monarch and prime minister and one such reason that can be found for this, is the separation of powers.

The separation of powers is a procedure which excludes solitary rule by a single individual, thus avoiding the situation of living under the rule of a dictatorship, with the separation, this means, that if one person or section of the government, wanted to take complete power, they would fail as the separation restricts this from happening, by delegating three different branches, certain powers, no power exceeding the other.
So with the UK constitution clearly being split into three completely different sections, the legislature, the executive and the judiciary, these sections each inherit there own power, with no single power being greater than the other, although it is argued that the executive is the most prominent of the three, although, these sections from time to time are required to work together, with the purpose of forming a strong and resilient government, this was highlighted by Baron Montesquieu (1689-1755) who said that ”for the different interests to cooperate, this would prevent any power being used excessively”. (Alder, 2007)

Therefore meaning that each branch has different functions, but the same power to restrict the limits of each other, whilst it could be alleged that in modern Britain, certain sections are without a doubt more powerful than the others, for instances, the executive is viewed as the most influential, by the way in which it managers the legislature and the judiciary, with the consent of the monarch and in addition it also obtains the resources of the state, these comprise of resources such the armed forces, the police and local councils, therefore saying that all the power in contained with-in the executive, giving it power to rule as one.

Montesquieu views in the past have come under criticism though, due to the inaccuracies in which they contain, “as it represents a description of an idealised state than in reality”. (Barnett, 2004) He also believed that the separation of powers would cause strain and interfere with the balance of the government; this is why Montesquieu places so much emphasis on just a partial separation, “which appears to have been endorsed by UK judges e.g. Lord Templeman in M v Home Office [1993] 3 all ER 537, 540”, (Alder, 2007) in which a citizen of Zaire, seeking asylum resulted in “a mandatory interim injunction against an officer of the Crown, had been made without jurisdiction”. (M. v. HOME OFFICE, 1993)

This is also echoed in the fact that being ruled by parliament or a sovereign would render a total separation unworkable, leading to constitutional stalemate, suggesting that there would then be three ruling bodies. With a partial separation, the three sections would still be able work, but without making each others decisions, the term for this is what’s known as, checks and balances, these checks though, along with the separation of powers don’t always run smoothly, the biggest problem noted for causing confusion, is the position of the lord chancellor, when first created, the primary role of the lord chancellor, was to rule over parliament, but in more recent times, more roles were added, these included the judiciary, lord speaker and lord chief justice, thus breaching the separation of powers, as he is a member of two separate organizations with-in the constitution.

The position of the Lord Chancellor, is one of much debate, concerning the UK constitution, as when created, the position was one of immense importance, some would say, even more superior to that of the prime minister, although, its the prime minister that appoints the Chancellor, therefore becoming a contradiction, it appears that the role of the Lord Chancellor was one of devious nature, giving the executive a mean of controlling the other two branches, as one such branch in control of the others would infringe the separation, so the position creates a way of gaining control.
Due to this, the position of the Lord Chancellor was abolished and replaced with the “judicial appointments commission to take over the Lord Chancellor’s role in appointments”, (Barnett, 2004) although the role of the Lord Chancellor has changed, he still has a significant position, supervising the constitution, although he is just a member of parliament and “no longer a judge nor exercises any judicial functions” (Crown, 2005) therefore, he is no longer resident in the House of Lords.

There’s also the issue of the delegate, as “delegated or secondary legislation raises important questions related to the separation of powers” this basically denoting that laws and other regulations can be enacted by the local governments, therefore, becoming an abuse of power, with the power of the legislature being used by the executive in a way that would undermined the rule of parliament.
Other issues that have arisen, for instance may well be that parliament, also has the power to intervene and change a ruling made in legal cases, it appears, that parliament make laws and not the judges, they just interpret it, this is where precedent comes from, president meaning, the following of previous legal decisions, although judges can change the decision, and in addition “it is also able to reflect changes in society”. (Barnett, 2004) While the common law system, tends to propose that judges are lawmakers, and not just bodies implementing parliament’s wishes as previously thought.

And then there’s Parliament, or more specifically prime ministers, past prime ministers, “where departing prime ministers nominate whoever they like for a peerage without checks on the candidates’ suitability”, (Schofield, 2007) this is what happened in the case of peter mandelson, a way of getting him in the government, due to him already being involved in the European Union.
Due to these and many other problems with the separation, the Constitution Reform Act 2005 was introduced, which will give construction to the supreme court in 2009, with the key motivation being to guarantee the separation between the legislative and judiciary, this is intended to provide the public with more confidence in the legal system, as this is evidently absent at present, but this can be seen as just masking over the problem, giving the public a perception that everything is right. Also this act also aims at giving judicial independence in which “the Act enshrines in law a duty on government ministers to uphold the independence of the judiciary. They will be specifically barred from trying to influence judicial decisions through any special access to judges” ( dca.gov.uk)

Furthermore, there’s parliamentary supremacy, this being that the party in control, have the ability by the majority vote to enact policies that it feels would benefit the constitution “perhaps the biggest road-block to the establishment of a clear constitutional order in the UK is the doctrine of Parliamentary Supremacy which means that Parliament is supreme in all matters”. (modernising the magna carta, 2008)
So with the separation of powers, this represents the vision of a good government structure, by the way in which it has distributed the powers equally, thus becoming ineligible from instability, creating a fair and balanced government, as this offers a excellent arrangement for the government and also the public and what's more protects public interest from exploitation by governments and their policies. Because in reality the government has a whole load of powers at its disposal, including powers such as the royal prerogative, monarchy powers entrusted in members of parliament, e.g. powers to go to war and that MP’s can obtain the crown immunity, as technically they are members endorsed by the crown.

Bibliography

dca.gov.uk. (n.d.). Retrieved 12 13, 2008, from Constitutional Reform Act 2005 : http://www.dca.gov.uk/legist/constreform.htm
Alder, J. (2007). Constitutional and Administrative Law. Basingstoke: Palgrave Macmillan Law Masters.
Barnett, H. (2004). constitutional & administrative law. london: cavendish publishing.
boulet. (2002, 10 16). Dicey's views on the rule of law and the supremacy of parliament. Retrieved 12 11, 2008, from everything2.com: http://everything2.com/index.pl?node_id=1373964
Crown. (2005, 06 25). CONSTITUTIONAL REFORM ACT 2005. Retrieved 12 13, 2008, from opsi.gov.uk: http://www.opsi.gov.uk/acts/acts2005/en/ukpgaen_20050004_en_1
explore parliament. (1999). Retrieved 12 13, 2008, from parliament.uk: http://www.explore.parliament.uk/Parliament.aspx?id=10067&glossary=true
modernising the magna carta. (2008, 02 13). Retrieved 12 13, 2008, from ministry of justice: http://www.justice.gov.uk/news/sp130208a.htm
Schofield, A. (2007, 7 8). mandelson to be made lord. Retrieved 2 15, 2008, from timesonline: http://www.timesonline.co.uk/tol/news/politics/article2042340.ece

Cases

M. v. HOME OFFICE, 377 (A.C. 06/07 10, 11, 12, 13, 17, 18, 19, 27, 1993).