Separating the Powers

In Democracy

This section is is as much about putting a stake in the ground, setting a context, as anything else. To a large extent, I'm stating the obvious. The assumption I'm working on is that our government should be based on the separation of powers. We have the people who make the laws, the people who implement the laws, and the people who interpret the laws. The overriding principle of the rule of law (coupled with appropriate laws and recognised practices for each of the three groups) ensures that everything runs smoothly. In particular, we might expect constitutional arrangements that ensure that no one group can usurp the powers of any other group.

That's the separation part. But, of course, the system must also have some internal friction. There must be checks and balances. There must be opportunities for thought and reconsideration. The process must allow citizens some glimpse of a stable future. If we bear this in mind we can look at a separation of different functions more or less as they exist now.

  • Legislature

    Let's start with where laws are made, the House of Commons. This is the primary body of Members of Parliament, whose task is to deliberate proposed laws and to approve proposals for action submitted by the executive. The deliberations will be based on the members' own understanding of benefits or otherwise, but, for the most part, the deliberations, and the actual vote, will be along party lines.

    New business is introduced to Parliament by the executive or by private members bills. Lobbyists, petition writers and anyone else who wants something done must either persuade a Minister, or find a helpful MP. The downside of the second option being that private members bills are not given the same priority as those introduced by a Minister.

    When the Commons wishes to publish a bill it is passed on to the House of Lords for review. The Lords do a great job here, but they are limited. They suggest amendments, ask for clarifications and discuss behind the scenes. They do have a tendency to think along party lines, though not reliably, but, more importantly, they have limitations imposed by the Commons. Finance bills are off-limits, as are bills referring to manifesto promises. Any other bill can only be returned to the Commons a few times. These limitations seem excessive, but the Lords are not considered to be representative of the people and therefore have no right to override the Commons. Indeed, the general level of politeness that the Lords apply in dealing with the Commons comes from their Lordships awareness that they could be put out of business completely if the Commons sees fit.

    In principle, the actions of the Commons can be subject to a judicial review; examining the process by which a bill has been brought forward, read and passed, rather than the content of the bill. In practice, the Commons are considered to be somewhat above the law in these matters and options are limited.

  • Executive

    The executive is there to implement the laws passed by the legislature. This is formed by Ministers for operational departments together forming the Cabinet. The individual Ministers have two roles. One is to act as the interface between the relevant department of the Civil Service and the Government. A Minister makes decisions that are referred upwards from their department in the Civil Service, as specified in relevant legislation, and gives broad interpretations of policy to their department. The other role is to decide policy and see that supporting legislation is passed through the legislature.

    The head of the executive, the Prime Minister, is normally the elected leader of the majority party in the Commons. The Prime Minister then has full power of appointing the remaining Ministers. Normally, though not always, these Ministers belong to the same majority party and are chosen from the sitting Members of Parliament.

    This is where Constitutional Monarchy begins to bite. The Prime Minister is actually some person who rocks up to the the Monarch and claims to be able to form a Government. In practice this means the person who has appropriate power, and that, in turn, means someone who leads a party (or a coalition) and has a large enough majority to be reasonably sure of wining any votes that might be needed.

    And bang goes the separation of powers. Cabinet decisions must be reviewed by the Commons, certainly, and the Cabinet cannot be too obviously extreme, but by and large, the Cabinet gets what it wants, simply because it has been accepted by the Monarch specifically on its capability to do just that.

  • Judiciary

    The Judiciary, to be very simplistic, provide courts of law and judges as a mechanism for examining specific situations in the light of available law. Sometimes, perhaps often, judges make new law, by setting precedent. It is impossible to write a law that covers all possible cases. It is also remarkably easy to write a law that can be interpreted in more than one way. It is the job of the Judiciary to interpret law in the light of each specific situation that comes up, and in doing so they solidify the relevant legislation.

    Any interpretation of a law is a political act. It is saying explicitly something that might be inferred, but where that inference is potentially open to discussion. This is no bad thing. What we have is a body of people whose job it is to interpret laws and who are independent of the people who wrote them. An interpretation that upsets MPs is an indication that something needs to be done.

    That independence of the Judiciary has been the norm for a very long time. The government does not appoint judges, neither are they elected. The relatively recent creation of the Supreme Court (2009) has clarified the distinction between the House of Lords, as a legislative body, and the Law Lords, a separate committee of judges that undertook supreme court duties. The result is a separation of powers that already existed but is now more obvious.

    We might want, though, to think about parliamentary sovereignty. This is the expectation that Parliament takes precedence over law and that, as a result, judicial review stops short of saying a particular law, or aspect of a law, is illegal. Put like that it seems obvious, but as part of Europe we come (came?) under the jurisdiction of the European court, and that body has no qualms about striking down laws. This contradiction is part of the nervousness associated with European membership.

So one aspect of our systemic failure appears to be down to our history and the creation of a constitutional monarchy, leading to a failure to properly separate powers. A second aspect is the lack of any serious oversight on the output from the Commons. Nor should we forget the third problem raised earlier, concerning voting and the formation of political parties. These issues can't be addressed separately, so let's move on to the voting problem.