What are those factors? It is unlikely to be the executive branch, for “increase in party discipline and the perception that the electorate votes for a party and its program” discourage disagreements between the main party in Commons and the ministers at 10 Downing Street. It is not the House of Lords8; its opinion is influential, but it has no legal control on Commons.
A party is often forced to act responsibly and accountably by its opposition and by public pressure.Conventions, however, tend to be the most important checks and balances: the executive’s ability to dissolve (or more importantly, threaten to dissolve) Parliament with the Queen’s guaranteed assent, Parliament’s ability to pass a vote of no confidence and the expectation that government resigns, ministerial responsibility, and many more.”The central part played by conventions in the constitution..
.of the UK indicates a preference for self regulation by governments and politicians over a system of legal checks and balances enforceable by the courts, which is much more characteristic of modern codified liberal constitutions. “9 Conventions are for the most part unenforceable by the courts10, and can be undone by legislation. While they are important to separation of powers in the partial sense, it’s best to keep in mind that they, too, are not immune and do not afford the same kind of protection the constitution exerts in the USA.In discussing these two branches at length, we have for a time-being forgotten about the judiciary. Prior to recent constitutional reform, it was often argued that the courts were not independent in the context of the pure separation of powers theory.
However, after the abolition of the Lord Chancellor in his previous tri-partite incarnation, the establishment of the Supreme Court to replace the Appellate Committee of the House of Lords, and changes in tenure arrangements, the judicial branch enjoys greater physical separation than ever before.The principle that judges need to be independent from both the executive and the legislature is crucial in upholding the rule of law. But can the courts make law or decide on matters of policy? Is there a functional separation of the judiciary? It is a fundamental constitutional principle that the legislature makes law, while the judiciary interprets it.
Still, there is a significant gap between what legislation can possibly foresee and the multitudinous sea of situations that can occur.It is now generally accepted that judges ‘do and must make law in the gaps left by Parliament’11 and that “the development of common law is a constitutional role of the courts. “12 The judges are constantly concerned with enforcing a statute as closely as possible; but where they have little guidance, they have more license. One such case is Woolwich Equitable Building Society v IRC, where the House of Lords, lacking requisite legislation, developed the principle that a citizen who pays money to an authority in response for an unlawful demand of tax should be able to recover it.The courts, however, will often refuse to rule directly on matters they find clearly non-justiciable, such as foreign policy or the interests of the state14.
“If government is to be free to govern it must be permitted an appropriate sphere for the formulation and implementation of policy. But it is equally necessary for the courts – which have neither the democratic ‘mandate’ nor the requisite expertise to intervene on groups of public policy – to exercise supervision to preserve legality.Therefore, the courts have the power to review executive decisions for consistency with relevant statutes.
Judges can rule the implementation of statutory instruments in the context of statute to be unlawful; they can also make decisions on the scope of the executive’s prerogative power. Since the passage of the Human Rights Act 1998, they can declare certain previously governmental functions to be judicial, as in R(Anderson) v Secretary of State for the Home Department.It is not a direct power, as parliament has the final say on any incompatibilities between the Act and previous legislation. The courts could theoretically be forced to enforce the most terrible ex post facto16 or ad hominem17 legislation; they do not have the power of judicial review over legislation, opening the doors for parliamentary contravention with even the most sacred constitutional tenets.
Baron de Montesquieu made an odd interpretation of the British constitution as being based on the separation of powers. But pure separation of powers was never the point.As M. J. C. Vile notes, ‘virtually the whole history of English constitutionalism has been characterized by the recognition of the need for a partial separation of the personnel of government, and a partial separation of the functions of government. ’18 British institutions enjoy some independence of powers, especially in regards to the judiciary. There are some significant checks and balances in place.
When compared with, for example, the United States, Britain falls short. America got a clean start when the ideas of separation were already in place.This country is merely a product of its history of “mixed and balanced” government. Some reforms are being undertaken; for the time being, Lord Diplock’s comment remains wishful thinking.
1 Barendt, Eric, “An Introduction to Constitutional Law,” 1998, pg. 15 2 There is also something to be said, especially by Barber, about separation as a model of efficiency – the allocation of the correct functions to the correct bodies 3 Barendt, Eric, “An Introduction to Constitutional Law,”1998, pg. 15 4 Recently used in the Nationality, Immigration, and Asylum Act 2002 and the Legislative and Regulatory Reform Act 2006.