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The Separation And Balance Of Powers In The Uk Constitution

1742 words - 7 pages

The Separation and Balance of Powers in the UK Constitution

“By the latter part of the 20th century the independence of the judges
had come under increasing threat from interference by the executive.
Recent reforms have, however, served to redress this position and
ensure that a proper division of personnel and functions between these
two arms of the state is restored.

Discuss this statement in the context of the Separation/ Balance of
Powers in the UK constitution.”

French political thinker Montesquieu argued during the Enlightenment
that in a democratic state the three branches of government; the
legislative, the executive, and the judiciary should not overlap in
personnel or function. Is the British judiciary’s integrity at stake
in a constitutional monarchy which does not comply with Montesquieu’s
base definition of democracy? Transitioning without a written
constitution or clear separation of powers resulted in questionable
balance of power amongst the arms of government, and to some extent
hampered judicial independence. The United Kingdom’s historic and
homeostatic governance needed to be severely tweaked to conform to the
contemporary world. The UK’s judicial system faced challenges similar
to those European nations which have moved from despotic to democratic
governance; the processes’ abridged version most recently featured by
members of the Soviet block in the early 1990’s. The courts’ crucial
function of upholding individuals’ rights, keeping the executive in
line, and defining the meaning of laws relies on a decision making
process and judicial review wholly independent from outside forces and
considerations. The growing amount safeguards to guarantee judicial
independence and ensure that politics remain outside the court room
are ever-reformed (significantly by EU participation), but remain a
work in progress.

An entirely independent judiciary may perhaps be a myth, as the
executive limit their autonomy through the Lord Chancellor’s power,
the appointment process, and even their own personal biases. The Lord
Chancellor, mentioned as the “living refutation of the doctrine of
separation of powers (Hartley 179)” is a member of the upper house of
legislature, normally a member of Cabinet, as well as a senior judge.
He is often a career politician and his powers fuse all three branches
of government. For example, the present Chancellor, Gordon Brown, is
a Scottish Labour Party politician. Some argue that the Lord
Chancellor acts as representative for the other branches of government
in the Judiciary, and not only promotes governmental cooperation, but
in fact is a sentinel of judicial independence (Turpin 56). However,
is it possible for the party affiliate spokesman of government whose
role is the furtherance of party agenda to be neutral? As judges...

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