Essay Example on Charles Montesquieu promoted the idea of separating the powers of Government









French jurist Charles Montesquieu promoted the idea of separating the powers of government into the trinity of the executive legislature and judiciary to prevent the abuse of power This concept is present in the United Kingdom though the UK adopts the partial form rather than the pure form which allows for small overlaps between the three branches instituting a healthy system of checks and balances Another vital constitutional principle of this country is Parliamentary sovereignty a concept promulgated by A V Dicey which argues that no person or body is recognised as having a right to override the legislation of Parliament Since the Constitutional Reform Act 2005 Parliamentary sovereignty has been questioned as the Act has seemingly strengthened the court's ability to challenge Parliament This essay will aim to demonstrate that while the CRA accentuated the separation of powers between the branches of government especially between the judiciary and the legislature it was not as helpful in granting the courts constitutional authority as the courts have acquired it from other sources long before the CRA Nevertheless Parliament still reigns supreme Constitutional Reform Act 2005 The CRA made significant changes to the fabric of the judiciary Notably it formed the Supreme Court which became independent of the House of Lords in Parliament Before the Supreme Court the highest court in the land was the Appellate Committee of the House of Lords which consisted of senior judges known as Law Lords who carried out the same responsibilities as current Justices of the Supreme Court While they were part of the legislature it was very rare as members of the House of Lords to participate in Parliamentary activity such as debates Nevertheless the position of the Law Lords in both the legislature and the judiciary caused controversy as it contradicted the doctrine of separation of powers 

The Lord Chief Justice also replaced the Lord Chancellor as head of the judiciary Prior to the CRA the Lord Chancellor held senior positions in all three branches of government he was head of the judiciary a speaker of the House of Lords and a Cabinet Minister the latter two of which would enable him to appoint judges This obvious contravention of the separation of powers led to reformation reducing his duties to a government Minister Also the 2005 Act further reinforced judicial independence by establishing the independent Judicial Appointments Commission which allows for fair and transparent appointments of judges based on merit This reformation was supported by Lord Falconer claiming that the time has come for the UK's highest court to move out from under the shadow of the legislature to achieve a transparent separation between the judiciary and the legislature Constitutional courts An example of a constitutional court is the German Federal Constitutional Court Bundesverfassungsgericht A constitutional court is a specialist court which is known to have authority to only legislate on matters concerning the constitution including judicial review Conversely matters that do not fall under this jurisdiction are legislated by the supreme court Constitutional courts like the one in Germany have the power to declare a legislation to be unconstitutional rendering it legally ineffective While the UK does not have a separate constitutional court judicial review takes place in the administrative court as well as in tribunals 

Other services such as ombudsmen and inquiries are also available Unlike foreign constitutional courts judicial review in the UK only applies to the exercise of statutory power rather than statutes themselves Primary legislation cannot be repealed by the courts It seems that since the CRA has significantly reduced the overlap between the branches of government this would give the judiciary more authority to challenge Parliament An example is R v Chaytor in which several MPs were guilty of false accounting The recently formed Supreme Court upheld the MPs conviction rejecting their defence of parliamentary privilege However this is not entirely the case The CRA is indeed valuable as it led to a clearer separation of powers between the three branches of government and it certainly elevated the status of the judiciary as its overlap with Parliament was significantly reduced Yet the effectiveness of the CRA comes with the assumption that the overlap between the judiciary and legislature hindered the court's ability to keep Parliament in check On the contrary the courts have been actively engaging in judicial activism even before the CRA as they acquired authority from other sources Beyond the 2005 Act One of the earliest pieces of legislation to provide the courts with constitutional authority is the Human Rights Act 1998 especially in Sections 3 and 4 The HRA was enacted to assimilate the European Convention on Human Rights into domestic law an act that has been called an unprecedented transfer of political power from the executive to the judiciary Section 3 has been known to undermine Parliamentary sovereignty and in Ghaidan v Godin Mendoza Lord Nicholls acknowledged that Section 3 may require the court to depart from the intention of Parliament which enacted the legislation

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