Far from being the “efficient secret” of the UK Constitution

 

 

 

Introduction

In the United Kingdom, the powers of the Government, Parliament, and courts are diligently entangled. In fact, the legislature and executive are viewed as a ‘close union,' an entire fusion of legislative and executive powers that Walter Bagehot had discussed as an “efficient secret of the UK constitution.”

Currently, the question raised about separation of powers is offered as unique importance in the UK by way of constitutional reform questions and through the issues related to the new constitutional, which mainly comes from the European law implementation like Human Rights Act 1998. It’s predicted by Professor Vernon Bogdanor that, “problems that were present in the past were decided by the Ministers, who are accountable to Parliament, will now be decided by courts.”

The separation of powers implies the type of Montequieu’s for the three key state institutions. However, this is usually complicated through various steps of authority like Courts and Parliament of the European Union, and supranational commission.

The executives in the UK include the Government and Crown, which includes Cabinet ministers and Prime Minister. The executive is responsible for formulating and implementing the policies. The Parliament and legislature include the House of Common, the Crown, along with House of Lords. The judiciary is responsible for judges in the court of law, one who refers the judicial bureau to the tribunal as well as magistrates that employ the magistrates in courts. Finally, senior judicial selections are made by the Crown.

In the UK, and various jurisdictions of common law, the legislature, and executive are intimately dishevelled. The Prime Minister and most of their Ministers are Members of Parliament and reside in the House of Commons. Therefore, the executive is present at the core of Parliament. The incorporation of executives and legislature in the UK offers competence and steadiness in all the operations of the government. It’s explained as a system, which can deliberately initiate efficiency over the intellectual apprehension related to tyranny. For instance, the PM is mainly both head of the executive branch and even the leader of the part; that provides more freedom to the executive branch, and the president especially enjoys in the government presidential system.

Along with that, Parliament might delegate the powers of law-making to the Government by powers to draft delegated or secondary legislature. It could even liberate the Parliament through the requirement to scrutinize the little technical information, while simultaneously maintaining the safeguard of Parliament’s permission. In this manner, in the legislature and executive of the UK are away from separate powers. On the other side, the Parliament’s executive presence might facilitate the scrutiny offered in the required procedures.

“Efficient Secret” of the UK Constitution

When Bagehot wrote the constitution of the UK in 1860, it was rightly said that the legislature and executives were closely fused. The Cabinet, Prime Minister, and Junior Ministers were all Members of Parliament (MP) or peers within the House of Lords. Therefore, the executive members stay, vote, and speak inside the legislature. These things are existing even in the present time because Bagehot trapped his magnum work. When Bagehot asks about the close fusion of the government two outmost organs “the efficient secret,” which he didn’t mean that secret in some sense that it's passed only to ordinary people, rather it was evidence of some precious genius, which makes the government of UK faster, robust and efficient. The books of Bagehot were considered in the work of authority for a long time. Even though, the setup he had explained is changed in the last 150 years.

The Prime Minister is responsible for exercising the royal powers of prerogative, which are reduced in the present time. House of Lords’ nomination and various other bodies like the judiciary are also minimized. It happened due to the initiated reforms by Gordon Brown when he became Prime Minister in the year 2007. He had even passed these reforms to the committee, but he was not liable to declare war without taking Parliament’s agreement. There was more openness within the government about the information act freedom. Cabinet minutes can be easily viewed a few years after it was written down. Therefore, the advice candidly provided in these meetings became a portion of the public domain.

Britain can have a system, in which cabinet ministers are considered outside of the legislature, just like the case of the European Union and the United States, in which the European Commission never compromises European Parliament parts. In both cases, the executive members needed to come in front of the legislature and need to mention the handling of their departments.

Walter Bagehot argued that the evidence presents that legislature and executives often try to overlap, which makes the government even stronger, but this thing is desirable. There are many criticisms, which could be levelled against the arrangement. It even goes against the separation of powers principles and therefore, it’s an anomaly in much mature democracy, but still many individuals are over-mighty. The powers separation can be considered as a doctrine, which mentions that the government’s three organs, an executive, legislature, and judiciary hold various roles, and therefore, they ought to move apart from one another. Every organ of the government is expected to perform its functions in its area. It would be incorrect for a single organ to obstruct the other organ’s jurisdiction. It is undertaken partly for the cause of competence, in the way of understanding the discharge duties, but even because a single organ should not get too strong in case it changes in autocracy.

There exist a potential for abusing power, mainly within the system, as it goes in the period of Bagehot. The Prime Minister holds a responsibility to fold the House of Lords with its cohorts and grumble crowds, along with covetable jobs of office. In the period of the 18th century, these things often take place. The fact was that in the time of 18th century, the Crown hold the responsibility to exercise its powers, and therefore, Prime Minster never come in its way. To a certain extent, these practices were healthy, as it limits the Prime Minster’s capacity to create any problem. But in the 19th century, the crown influence was minimized, and it was hugely approved that the royal powers of prerogative were carried out by Prime Minister. At least in the era of Bagehot, there was certain nous of impartial duty, which edge the extent to which royal power of prerogative was battered for fulfilling the partisan political boxes. Nevertheless, this depends on decency and the possibility to exploit the prerogative. In the current time, there exists a strong notion, which tries to peerage and sell to donors for their principal political parties, mainly that party, which are in office.

In the case of the devolved legislature, the same argument holds relevance. North Ireland executive members, along with Welsh Executive, and Scots Government are all considered members of the particular legislature. It’s the right way that all the members of an executive can easily elect public representatives on their own because it confers democratic legitimacy. They are even answerable to their constituents, and they can even dismiss with the help of a ballet box. On the other side, this implies that each executive member holds their electoral constituency to think and is tempted for making unsound and unfair decisions for the purpose of improving the possibility of re-election.

For instance, they can keep the military base as open in their constituency, as it can offer jobs within their district and can support in getting re-elected, even though the military is not sensible strategically or cost-efficient. They can even go for the pork barrel form of politics, in which they can spend the money of the public for construction projects, as this is quite popular within their constituency, even though the same is not good for the perspective of the whole country. Members of the executives might stay at Lords, and that’s the reason, they are not elected by the public. It insulates them from the normal pressure of getting re-elected.

The government organs are now hugely separated as compared to the past. It is good because it implies that the government agencies can efficiently perform their allotted roles and don’t fix in every territory. The drawback related to the separation of powers is that it can move slowly to lower the decision-making, and this process even becomes cumbersome. Decisions taken by an executive are highly subject to judicial review and might go thwarted through the courts. Further, during a period of crisis like war, it is required to take decisive actions, and separation of power reduces the decision-making process of government organs.

Legislative functions are highly delegated to executives. Particular secretaries of the state are also entitled to sign in provisions of the law without taking the consent of parliament. Later on, this legislation can be repealed by the Parliament. Nevertheless, the functions of legislation are handled by executives in a particular area of regulation in the context of both education and health. People usually recompense lip service for the freedom of the judiciary, but still, the legislature tries to intrude on the demagogic persistence. The less life term given in the case of murder is undertaken through the statute; therefore, it impasses judges. Undeniably, once a life sentence is given, then afterward bench establishes the tariff and life never means life. Likewise, Parliament approves British soldiers and terrorist prisoners to get released early as per the Belfast agreement, to finish the fights with Northern Ireland. It indicates that they had justified morally, for bringing peace, but it certainly tries to underline the entire notion linked with judicial independence.

Recent changes

One of the most crucial aspects related to executive control of the legislature is linked to the allocation of time for discussion. The government mainly holds complete control over the Senate agenda. In the year 2010, the backbench business committee was formed for granting the legislative assembly operational independence through the executives. The Wright committee considers that the backbench business committee would provide MP with more control as well as ownership of the ongoing agenda in parliament, which makes the discussion more appropriate for the public and give strength to the scrutiny role of the committee, which might be applied for a particular time on the floor of House by the backbench business committee. The Coalition program government commits the government to introduce a business committee for every type of business, after the third year completion of government.

Constitutional Reform Act 2005

In the 2005 Constitutional reform act, both the parliament and government tried to change particular areas, whereas, in the UK, the powers were least unglued. The Ministers were accountable for the bill in Commons so that it can be ensured that the separation of powers is clearly defined, wherever it is relevant, but they should not be incompatible in holding the partnership among various branches of the state. The Act included different Supreme Court and Lord Chief Justice, which try to replace Lord Chancellor as the Judiciary head of both Wales and England. It also placed the statutory duty of the ministers for the perpetuation of judicial freedom. The Bill was considered by the selected committee in Lords. This Committee on the Constitutional Reform Bill generated its report in the year 2004, which includes background details about the separation of power arguments. The Commons Constitutional Affairs chose committee report that came in 2004 was appropriate.

Super Sanctions

In the year 2011, questions were raised over the separation of powers related to the use of injunctions. An injunction within the court order, which needs the party to desist from undertaking specific acts. For instance, it might order, particular facts, identifies or assertions should not be disclosed. Standard Note 5978 Privacy offers the background of the development of a unique kind of injunction, whose existence should not be revealed. In certain events, it is known as super sanctions, on which the court had offered the concealment and placed prohibition over issuing the existence of the order. Restrictions might be placed on retrieving the documents, filled in court. Aristotle (2012) argued about the super sanctions, which formed a new type of practice for the complete legal process, undertaken through the public perspective, in which its existence is held enduringly secret under the pain of derision.

In the year 2011, David Cameron mentioned that he felt quite perturbed about the super sanctions as judges were forming privacy law, without taking the consent of parliament. The Human right Act 1998 was enforced on the judges in order to construe the legislation, for making it attuned with the Human Rights European Convention. Article 8 related to the convention establishes respect towards both privacy and family, which is developed by the court as part of the common law in the non-attendance of the statutory privacy laws of the UK. This progress led to the argument, that mentions, the court had moved beyond the powers to develop the common law, with an aim to present privacy rights into English law. Various others had recommended that the human rights act enactment professionally form the privacy right according to the practicalities laid out by the parliament.

Conclusion

The legislature and executive were not bonded, as they used to be. Thus, the fractional decoupling of both could be greeted, as it can support elevating the democracy of the country. The near mixture of both support creating a powerful government, in the case of wrong law. The explanation made by Bagehot related to the state of affairs was speckled in locus to the analysis, but the attitude associated with the efficient secret was not shared with all.



 

References

Aristotle, ‘Politics - Book 5’ (2012) 

Constituency boundaries: the sixth general review (2012) 

Constitutional Affairs Select Committee Constitutional Reform Bill (2012) 

House of Lords Constitutional Reform Bill First Report (2012) 

Judicial independence and accountability: a view from the Supreme Court (2012) 

Judicial Independence Overview and Country-level Summaries (2012) 

Judiciary of England and Wales, ‘Judicial review’ (2012) 

Parliamentary privilege and qualified privilege (2012) 

Relations between the executive, judiciary and parliament (2013) 

Separation of powers constitutional plan and practice (2012) 

The politics of judicial independence in Britain's changing constitution (2013)

 

 

 




[1] Aristotle, ‘Politics - Book 5’ (2012) 

[2] House of Lords Constitutional Reform Bill First Report (2012)  

[3] Constituency boundaries: the sixth general review (2012) 

[4] House of Lords Constitutional Reform Bill First Report (2012)  

[5] The politics of judicial independence in Britain's changing constitution (2013) 

[6] Judicial independence and accountability: a view from the Supreme Court (2012) 

[7] Judicial Independence Overview and Country-level Summaries (2012)  

[8] House of Lords Constitutional Reform Bill First Report (2012) 

[9] Parliamentary privilege and qualified privilege (2012) 

[10] Separation of powers constitutional plan and practice (2012) 

[11] Judiciary of England and Wales, ‘Judicial review’ (2012) 

[12] Constitutional Affairs Select Committee Constitutional Reform Bill (2012) 

[13] Relations between the executive, judiciary and parliament (2013) 

[14] Aristotle, ‘Politics - Book 5’ (2012) 

 

 

GET A PRICE
£ 10 .00