Separation of Powers

The US Constitution is built upon the foundation of a separation of powers. Montesquieu (pictured above), amongst others, had highlighted the importance of ensuring that the differing functions of legislating (making law); executing the laws (carrying out the laws and providing day to day administration) ; and judging - both interpreting the laws and deciding in invidual cases - should be in the hands of separate groups of individuals. Hence a member of Congress cannot be at the same time a member of the Executive (serving the President) or a member of the judiciary.

On the face of it, Britain seems to show a fusion, rather than a separation of powers. The doctrines of ministerial responsibility are based on the principle that Government Ministers will also be members of either the House of Commons or the House of Lords. The Lord Chancellor was for centuries a member of Parliament (almost invariably in the House of Lords); the presiding officer and major player in the Lords; a member of Cabinet and an active judge.

However - it is useful to remember that Montesquieu actually praised Britain as a shining example of 'separation of powers'. It can be fairly described as a major principle of the British system. True fusion of powers ended with the decline of absolute royal power. 

The House of Commons Library have produced an excellent paper on separation of powers. It is available here. Students of UK Constitutional Law (including Open University W201 course) will find that the process of condensing the information in this paper will assist their revision immensely.

Does it matter who we vote for?

I care less and less about which members of the political elite hold key offices. Does it really make any difference as to whether its the Old Etonian Boy's Club (Cameron et al)? privately educated MPs [ALL parties - 54% of Conservative MPs attended fee paying schools, compared with 40% of Liberal Democrat MPs, and 15% of Labour MPs.]? or the extremely wealthy (Essential if you want to be a Senator; Congressman and to an increasing extent an MP or Peer)?

[Well yes, if you believe in a representative democracy]

But my point isn't to decry the "pay to play" principle; or to deny that there are vastly different policies being put forward by the different parties - but to consider the implications of an important point made by Lord Acton in 1887.

 "Power tends to corrupt, and absolute power corrupts absolutely."

Sadly, Acton's words are true. There is a tendency for power to corrupt - perhaps not in its grossest form - but subtly, by desensitising people once they achieve power. Recent history is full of examples - the expenses scandal at Westminster is classic. Decent, hard-working, dedicated people ended up making claims which were outrageous - but their time in power had desensitised them. "Group-think" took over. Benefits became entitlements - and the public purse dipped into in a way they'd have condemned before they entered the Westminster village. We've read in the papers over recent months of how people thrust into power - whether they be performers or DJs; or politicians - abused their positions to claim sexual victims. Senator Fulbright spoke of the "arrogance of power" that can be shown by nations - but it can often be shown by individuals.

One of the defining demands of 'Extreme-Conservatives' is for less regulation. Cast off regulation and everyone would be better off. Their little experiment now has its results - the banking crisis; Enron; the horsemeat scandal...

We can't alter human nature - but we can put in safeguards to lessen the change of power corrupting. The Americans when they drew up their Constitution were keen to insert "checks and balances".

Montesquieu proposed 'separation of powers' as one way to lessen the likelihood of tyranny developing. Even medieval Kings required 'weights and measures' laws to stamp on the 'rip-off merchants.

Requiring greater accountability from those who exercise power is the only way to take on our human failings. Judicial Review in the UK has developed to challenge - not the substance of decisions - but the way they've been taken. A decision made by a public official who has a financial interest in the result of that decision, will be declared invalid. Decisions can be challenged and struck down where there is irrationality; or irrelevant considerations have been taken into account.

At Westminster and in Congress - our representatives can investigate and question how decision makers have acted. The National Audit Office [NAO] and the Government Accountability Office [GAO] can undertake professional, in-depth investigations and report their findings to our representatives. In Britain MPs and Peers can ask oral questions during question times - and grill Ministers in committee.

Freedom of Information laws can also shed sunlight upon decisions made - allowing questions to be asked.

It does matter who we vote for - because our representatives can call decision makers to account. The issue for us as voters is whether our Parliament/Parlement/Congress has the powers; tools and commitment to holding decision makers to account.

Threats to Liberty

Western political and legal theory stresses the potential threats to liberty that can come from "the State". The doctrine of "Separation of Powers" is a classic example. Montesquieu warned that if the three functions of government (1 Making Law - legislating (2) Carrying out the law - the job of the 'Executive' and (3) Judging - interpreting the law and applying the law in disputes) were in the same hands, tyranny would follow. Other legal doctrines such as 'the Rule of Law' should govern the action of the State (illustrated by the provisions of the Magna Carta and today's remedy of Judicial Review.

But the State isn't the only source of threats to the rights of citizens. As Magna Carta sought to curb the excesses of a monarch, it didn't seek to curb the actions of 'over mighty subjects'. The Barons at Runnymede didn't want that issue addressed!

The phone-tapping scandal involving the News of the World (another part of Rupert Murdoch's global media empire); the damage to the livelihood of people affected bt the BP scandal; the ability of corporations to use their money to influence the political process - show that powerful business interests are a threat too.

Reforming Westminster

Recent events have exposed some of the weaknesses of the current political system operating at Westminster - and brought the idea of major constitutional reform to the centre of debate. Washminster will follow this debate closely.

The starting point must be Lord Acton's comment that "Power tends to corrupt, and absolute power corrupts absolutely."

In the UK we tend to concentrate on the latter part of the quote - congratulating ourselves that no one is given absolute power. The Magna Carta in 1215 established that no one was above the law, even the King has limited power. When the Stuart monarchs overstepped the mark - they were removed (In 1649 Charles I was tried and executed; and at the 'Glorious Revolution', James II was "run out of town" by Parliament and the 'Bill of Rights' passed). There is significant separation of powers at the very core of the British constitutional system.

But the first part of the quote is just as important. The possession of Power itself holds dangers. Human nature is flawed. We can easily convince ourselves that what is in our own interest is also in the interest of others. We can "cut corners" and become blind to the wrongfulness of our behaviour. It is significant that many MPs defending their actions have stressed that they acted within the rules in making their claims - apparently unaware of how appalling their behaviour appears to everyone else. History is full of abuses of power.

The answer is to set up checks and balances to counter this natural tendency. The US Constitution is built on that principle. Separation of powers is crucial because, as Montesquieu argues, when one person has a hand in all three branches of government, tyranny will ensue. The exercise of power needs to be transparent and there must be accountability. Those who take decisions must be answerable for them. That's why I am an advocate of powerful parliamentary committees able to demand explanations. Only when there is a culture of accountability can lessen the opportunity for the abuse of power.

Over the coming weeks, this blog will discuss many of the reforms that could build on the strengths of the Westminster system, whilst adressing the weaknesses. I hope you'll engage in this important debate.