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Separation of Power

Separation of power runs like a thread throughout the


constitution of the United Kingdom. It is a doctrine which is
fundamental to the organisation of a state. It prescribes the
appropriate allocation of powers, and limits of those power, to
differing institution. The concept has played a major role in the
formation of constitution. The extent to which the power can be
or should be, separate and distinct was a central features in
formulating. In any state, the three essential body exist in the
executive, legislature and judiciary form. It is the relationship
between these bodies which must be evaluated against the
backcloth of the principle. The essence of the doctrine is that,
there should be ideally a clear demarcation of personnel and
functions between the legislature, executive and judiciary in
order that none should be excessive power and that there
should be in place a system check and balance between
institutions. The concept of was founded by Aristotle, expanded
by Montesquieu and France Jurist.
The executive may be defined as that branch of state
which formulate policy and is responsible for its execution.
Minister, Cabinet and other ministers, for the most part are
elected Member of Parliament. While, the legislative role in
Britain is largely taken by Parliament, which comprises Queen,
House of parliament. Whilst, its primary function may be the
passing legislation, it has other functions, notably, in the
present context, holding government to account. It also control
national finance and is a forum for debate and the redress of
grievances. In terms of its personnel, many of its members sit
in more than one capacity. The function of the judges and the
courts in which they sit to resolve disputes and, in the process
of doing so, rule on the interpretation of the law.
The office of Lord Chancellor has traditionally been cited
as the classic example of the way violates the separation of
powers as he formed part of all three state institutions. Prior to
CRA2005 , the head of the judiciary was a Cabinet minister, the
Lord Chancellor. In an extraordinary breach of separation of
powers, he could also sit as a judge in the highest court; and
equally extraordinarily, he presided over the second chamber

of Parliament, the House of Lords. The Concordat provided the


basis for the Constitutional Reform Act 2005. The Act removed
the roles of the Lord Chancellor as head of the judiciary and
Speaker of the House of Lords, but otherwise left the office in
being. It set out the functions to be transferred to the Lord
Chief Justice as head of the judiciary, implementing the
agreement struck in the Concordat. The new politics are
different in every respect. The greater separation of powers
introduced by the Constitutional Reform Act 2005 required
more formal structures and processes to handle the
relationships between more separate branches of government.
Some of these structures and processes were created by the
Constitutional Reform Act itself, some have emerged
subsequently.
One constitutional curiosity which represented a challenge
to the separation of powers was the existence of the highest
court in Uk, the Appellate Committee of the House of Lords,
sitting in Parliament. Judges elevated the highest court were
made Life Peers under the Appellate Jurisdiction Act 1876, and
known as Lords of Appeal in Ordinary. The court was physically
located in committee rooms of the House of Lords, and
judgements delivered in the chamber of the House of Lords,
further blurring the line between the judiciary and the
legislature. The Constitutional Reform Act 2005 remedied this
anomalous situation by creating Supreme Court physically
removed from the House of Parliament. The new supreme court
represented an improve separation of powers between
Parliament and the judiciary and complements the reformed
office of Lord Chancellor. Although the name Supreme Court
has been adopted, the court has not been given additional
powers and not analogous to a supreme court under a written
constitution.
However, the separation of powers doctrine does not insist
that there should be three institution of government each
operating in isolation from each other. Indeed, such
arrangement would be unworkable, particularly under a
constitution dominated by the sovereignty of Parliament. Under
such an arrangement, it is essential that there be a sufficient
interplay between each institutions could result in legal and

constitution deadlock. Rather than a pure separation of powers,


the concept insists that the primary functions of the state
should be allocated clearly and that there should be checks to
ensure that no institutions encroaches significantly upon the
function of the other. Shortly, they are overlapped which ensure
the effectiveness of the government judiciary.
One of the main characteristic of the British constitution is
that it has a parliamentary executive. In general, most of the
political executive are drawn from the elected of House of
Common. The remainder are peers in the House of Lords. In
terms of personnel, it is clear there is an overlap between the
member of executive and legislature with members of
parliament enjoying both executive and legislature function. By
this, government is directly accountable and responsible to
parliament. As government drawn from within Parliament this
provide the opportunity for them to be accountable on a daily
basis through the written and oral questions, debates and
select committees. In addition, s2 of the House of common
disqualification act 1975 specifically limits the number of
government minister who can sit in the House of Common.
This, at least in constitutional theory, prevents the government
from dominating the House of Common. Notwithstanding the
above, the parliamentary executive has generally ensured
dynamic government whereby the government has been
influence heavily the parliamentary legislative programme.
It is worth nothing that the institution in Scotland, Wales
and Northern Ireland exhibit a form of a parliamentary
executive. The feature of a parliamentary executive is not, of
course, restricted to the United Kingdom. The republic of
Ireland with its written, entrenched codified constitution also
has a parliamentary executive whereby the Irish government is
drawn from, and constitutionally accountable to, the Irish
government. In contrast, in the United States the president
does not form part of legislature as it is a presidential system of
government with the president sitting separately from
congress. In France, cabinet ministers do not sit in the French
Parliament as Art 23 of the French constitution states that
membership of government is incompatible with that
parliament. Both United States and France reflect a greater

degree of separation power between the executive and


legislature than in UK.
Besides, the practice of delegated legislation, entrust a
law-making power onto member of executive. This involves a
power onto a minister delegated legislation which generally
takes the form of Statutory Instrument. The rationale behind
delegating a legislative power to executive is because it would
be impossible for parliament to legislate all the details of all the
laws that are necessary in a modern society. The general
principle governing delegated legislation is that enabling act
encapsulate the general principles of the legislation, while the
secondary legislation made under the authority of act,
supplements these general broad principles with the detailed
provision. Thus, it fill in the fine details of legislation. AV Dicey
approved of delegated powers on this basis. The power of make
law is, in principle governed by law which can sets the limits on
the power to make delegated legislation by the terms it uses
when passing the Act which confers the power to make it.
The relation between the courts and parliament is
conditioned by a number of factors, of which two particular
notable. First, Article 9 of the bill of rights 1689 provides that
the freedom of speech and debates or proceedings in
parliament ought not to be impeached or questioned in any
court or place outside parliament. This inhibits the courts from
any inquiry in which parliament conduct itself and hence limit
the courts ability to scrutinize its operation. This become
particular significant when coupled with the idea of
parliamentary sovereignty which is fundamental to the
operation of British constitution. It is a legal idea which means
that the validity of the legislation passed by Parliament cannot
be challenged in the courts. This is partly in recognition of the
separation of power. In Pickin v British Railways Board, it
was held that once document had been identified as an act of
parliament the courts could not go behind it to examine the
way in which it had been passed to see if, the plaintiff asserted,
there had been a procedural irregularity.
The courts have the considerable latitude as to the
meaning of Acts of Parliament under the guise of interpretation.

Although they cannot rewrite the legislation, by statutory


interpretation, can significantly influence the scope of a piece
of legislation. Parliament does, however, have the final word,
for it can alter by legislation decision of the courts that are not
felt to be satisfactory. Thus, for example, in Burmal Oil Co v
Lord Advocate, the government introduced, and parliament
passed, the war damage act 1965 which reserved the decision
that damage caused in war time is payable, and did so
retrospective, not only was compensation not payable in
respect of such damage, it had never been payable.
As their relationship with parliament, the courts have, to
some extent been self-determining in their approach to their
relationship with the government with regard to checks on the
exercise of executive power. The Crown Proceedings Act 1947
have removed many of the obstacle to crown liability in
contract or tort, whilst the decision of the House of Lords in
Council of Civil Service Unions v Minister for the Civil
Service paved the way for the court to review the way in which
powers under the royal prerogative are exercised. They are
thus able to act as a check on executive action, though the
extent to which they do so in practice varies. Depending on
what stand-point they are adopt with regard to interpretation of
the particular piece of legislation, they can intervene executive
action to be unlawful or can decline to do so. Whilst, the role of
the courts is to decide whether the executive has acted lawfully
or not, the courts inevitably become enmeshed in question that
a political undercurrent. In Bromley London Borough
Council v Greater London Council, GLC reduce fares on
London transport. The court held that GLC had failed to give
sufficient weight to the requirement to run the transport system
economically. They could not lawfully devise policies that would
lead to the system making a loss and thus need to be financed
by a higher rate precepts.