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					     SEPARATION OF POWERS
Introduction:

* The doctrine of SOPs, together with the ROL and parliamentary
sovereignty runs like a thread throughout the constitution of the UK.

* The doctrine can be traced back to Aristotle i.e., in his work 'The
Politics' where he proclaimed that: “There are three elements in each
constitution in respect of which lawgiver must look at what is
advantageous to it: if these are well arranged the constitution is
bound to be well arranged...”

* John Lock developed the doctrine further in the 17th century in his
work titled 'Second Treatise of Civil Govt'. He wrote: The three
organs of the state must not get into one hand...It may be too great a
temptation to human frailty...”

* Baron de Montesquieu further developed the doctrine in his work
'The Spirit of Laws'. He wrote: “All would be lost if the same man or
the same ruling body...were to exercise these three powers...”
    SEPARATION OF POWERS

Meaning of SOPs:

(a) Strict sense: “There should be, ideally, a clear
demarcation in function between the legislature, the
executive and the judiciary in order that non-should have
excessive power and that there should be in place a
system of checks and balances between the institutions”.

(b) Liberal sense: It would mean that let there be overlaps
in function between the legislature, the executive and the
judiciary but on condition that there should be in place a
system of checks and balances between the institutions.
     SEPARATION OF POWERS

Whether the doctrine is practised in the UK

* The doctrine is said to exist in the UK but not in its pure
sense. The doctrine in the UK has seen significant
departures from the pure concept.

* The doctrine in the UK is argued to be essential towards
the idea of 'constitutionalism'.

  Note: The UK decided to take the contemporary
stand/view. Pure SOPs would be unworkable, particularly
under a constitution by the sovereignty of Parliament.
     SEPARATION OF POWERS
The three organs of the State:

  Executive organ: It comprises the Crown and the govt,
including the PM & Cabinet Ministers. The role of the executive
is to formulate & implement govt policy across all governmental
activities. The elected govt of the day is accountable to
Parliament.

 Legislative organ: It comprises of the Crown, the elected HOC
& the unelected HOL. The main function of the legislature is to
make law. The govt proposes legislation only Parliament may
enact laws.

  Judicial organ: It includes all the judges in the ct of law, and
also those who hold judicial office in tribunals, and the lay
magistrates who staff the magistrates' cts. The main function of
the judiciary is interpret the law passed by the legislative organ.
    SEPARATION OF POWERS
Whether there are overlaps within the three organs of
the State:

  Overlaps exist within the three organs of the State in
three different situations:

* Overlaps as to membership;

* Overlaps as to functions; &

* Overlaps as to powers.
      SEPARATION OF POWERS
Overlaps between the Legislature and the Judiciary:

 (a) Membership:

* The two organs do not overlap significantly i.e., judicial officers are
disqualified from being members of the HOC. (See the House of
Commons Disqualification Act 1975)

* The Queen is part of both organs i.e., Her Majesty is part of the
legislature by virtue of the requirement of Royal Assent to a Bill
before it becomes an Act of Parliament. Also, Her Majesty is part of
the judiciary i.e., the judiciary belongs to the Crown.

* The LC is part of both organs i.e. he/she is part of the legislature by
virtue of being the Speaker of the HOL. He/she is also part of the
judiciary by virtue of being the head of the judiciary.

* The Law Lords are part of the HOL (legislature)- See also the
position of the lay peers.
     SEPARATION OF POWERS
Overlaps between the Legislature and the Judiciary: (Continuation)

 (b) Functions and Powers

* The legislature is viewed as performing the function of the judiciary
e.g. Parliament has the sovereign power to regulate its own
composition and procedure. (Parliament in parliamentary privilege
and contempt of parliament cases makes judicial decisions).

* The issue or question of whether judges make law through the
doctrine of judicial precedent or through interpretation of statutes. If
yes, then that would be construed as violating the doctrine of SOPs.
(See the cases of National Provincial Bank v Ainsworth; R v R; &
Shaw v DPP)

 Checks & Balances:

* The Queen must assent to Bills passed by the Commons & Lords.
(She is merely a rubber stamp- Her 'roles' are ceremonial and seen
as a symbol of unity and fountain of justice).
     SEPARATION OF POWERS
Overlaps between the Legislature and the Judiciary: (Continuation)

 (b) Functions and Powers

* The legislature is viewed as performing the function of the judiciary
e.g. Parliament has the sovereign power to regulate its own
composition and procedure. (Parliament in parliamentary privilege
and contempt of parliament cases makes judicial decisions).

* The issue or question of whether judges make law through the
doctrine of judicial precedent or through interpretation of statutes. If
yes, then that would be construed as violating the doctrine of SOPs.
(See the cases of National Provincial Bank v Ainsworth; R v R; &
Shaw v DPP)

 Checks & Balances:

* The Queen must assent to Bills passed by the Commons & Lords.
(She is merely a rubber stamp- Her 'roles' are ceremonial and seen
as a symbol of unity and fountain of justice).
     SEPARATION OF POWERS
Overlaps between the Legislature and the Judiciary: (Continuation)

 Checks & Balances:

* The LC will not participate in judicial proceedings which involve
matters of govt policy or which might be politically sensitive.

* The Law Lords do not take part in politically contentious debates in
the HOL. And the lay peers do not participate with the Law Lords
when hearing appeals.

* MPs will not criticise judicial decisions where proceedings are
before the ct, or imminent issues, MPs are barred from raising the
issues in debate.

* Judges have discretion when performing the task of interpreting and
applying those less perfect legislation though the concept of
parliamentary sovereignty prevails. (See the case of Duport Steels
Ltd (1980), Rv R etc)
     SEPARATION OF POWERS
Overlaps between the Legislature and the Judiciary: (Continuation)

 Checks & Balances:

* The effect of the ECA 1972 on the role of the judges and the
doctrine of Parliamentary sovereignty. The ECA 1972 empowers the
UK Cts to interpret UK legislation in line with EU Law.

* The effect of the HRA 1998 on the relationship between the
legislature and the judiciary. Under the Act, higher cts are
empowered to declare a primary and a secondary legislation
incompatible with Convention rights.

  Are the checks and balances effective? (The answer seems to be
no. This is due to the legal sovereignty of Parliament. But, this is in
theory as opposed to practice.
     SEPARATION OF POWERS
Overlaps between the Executive and the Judiciary:

 (a) Membership

* The Queen is part of both organs i.e Her Majesty is part of the
executive organ by virtue of being the head of the state. She is also
part of the judiciary by virtue of the judiciary belonging to her.

* The LC is part of both organs i.e., he/she is part of the executive
organ by virtue of holding a ministerial post. He is also part of the
judiciary by virtue of being the head of the judiciary.

* The AG is part of the executive organ (may hold a ministerial post)
and as well as part of the judiciary by virtue of being the sole legal
advisor to the govt.

 (b) Functions & Powers

* The executive is said to be performing the function of the judiciary
i.e., the exercise of 'royal pardon' by the Home Secretary.
      SEPARATION OF POWERS
Overlaps between the Executive and the Judiciary: (Continuation)

 (b) Functions and Powers

* The AG is also viewed as peforming the function of the judiciary i.e., in
exercising the discretion of whether to prosecute or not regarding criminal
matters

* Administrative tribunals, over which the executive exercises some control,
make judicial decisions.

* The judiciary also is viewed as performing the function of the executive
i.e., through review of prerogative powers (see the case of GCHQ)

 Checks & Balances:

* The Queen does not play an active role in both organs other being viewed
as a 'symbol of unity'- (Her Majesty is a mere 'rubber stamp'). See also the
operation of conventions on the exercise of royal prerogatives that belongs
to the Crown.
     SEPARATION OF POWERS
Overlaps between the Executive and the Judiciary: (Continuation)

 Checks & Balances:

* The LC is governed by conventions i.e., not expected to act
impartial.

* Where consent for prosecution is required, by convention the AG
must avoid party political considerations, and may not take orders
from govt. Also, being part of the legislature, the parliamentary
procedures like question time; debates; and select committees will be
used as a check and balance on the AG's office.

* The operation of the concept of JR (see the case of GCHQ). The
concept helps keep those persons & bodies with delegated powers to
act within the scope of power conferred by Parliament.

* The effect of the HRA 1998 & also the ECA 1972.

* The effect of the Settlement Act 1700.
      SEPARATION OF POWERS
Overlaps between the Executive and the Legislature:

 (a) Membership

* The Queen belongs to both organs of the State. The Queen is the head of
the State. The Queen is also part of the legislature by virtue of the
requirement of Royal Assent to a Bill.

* The PM and his Cabinet, who form part of the executive are by convention,
members of one of the Houses.

* The LC is part of both organs of the State.

 (b) Functions and Powers

* The executive is said to be performing the function of the legislature with
respect to delegated legislation.

* The legislature is said to be performing the function of the executive
through the parliamentary procedures like question time, debates, and select
committees.
      SEPARATION OF POWERS
Overlaps between the Executive and the Legislature: (Continuation)

 Checks & Balances:

* The Queen does not play an active role in both organs other being viewed
as a 'symbol of unity'- (Her Majesty is a mere 'rubber stamp').

* Parliament has control over the working of the executive e.g. Through
parliamentary such as question time, debates and select committees, the
legislature is in a position to scrutinise the executive.

* Parliament may oust a govt through a vote of no confidence cast against
the govt of the day for example ousting of the minority govt of Mr. James
Callaghan in March 1979.

* When acting as Speaker of the HOL the LC sits on the Woolsak; when
acting as a spokesman on behalf of the govt the LC moves from the
Woolsak to a different position.

* The efect of the HRA 1998 (see the provision of sec 19 of the Act).
     SEPARATION OF POWERS
Conclusion:

  UK with its an unwritten constitution gives the impression
that the doctrine of separation of powers is not practised in
its true sense, which is true. However, there should be no
total denial that the doctrine does not exist at all. This is
due to the fact that its importance has been recognised
and it has worked well in different but equally effective way
and its objectives have been served. Probably what is
needed is to make sure that the checks and balances in
place are effective enough to prevent abuse of power.

				
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