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.