Doctrine of Separation of Power Analysis

Doctrine of Separation of Power AnalysisIntroductionThe philosophy of breakup of antecedents is non a legal principle, but a political theory.1 The judgment of conviction interval of motives concerns the di h totallyucination of State power as between the executive, the legislature and terrace.2 Article 16 of the French Declaration of the Rights of man (1789) states, that a hunting lodge where rights ar not secured or the separation of powers established has no constitution.3The most important aspect of the separation of powers is the way in which the organs of State act to restrain each different and prevent the other institutions from exceeding their powers. There is a general belief that in all societies that there is a vivid tendency for an indivithreefold to monopolise power. The precept of separation of powers attempts to combat this by providing mechanisms to make it difficult for whatever single power group to dominate and to ensure that presidency action requi res the cooperation of different groups, each of which helps to occur the others within bounds.4One of the functions of brass is to protect the rights of individuals, however, historically authoritiess deplete been the major violators of these rights that they ar meant to protect. The concept of separation of powers is angiotensin converting enzyme of a number of measures that have been derived to reduce the likelihood of abuse of power by the organisation and the violation of individual rights.5If power is concentrated in a single group, they would have unlimited power and they would do as it pleases them.The French writer Charles Louis de Secondat, Baron Montesquieu is the person, most often associated with the doctrine of separation of power. pen in 1748, the French jurist, Montesquieu argued that, there can be no liberty and there would be no end of everything if the legislative, executive and judicial powers of government were to be cropd by the same person or authorit y.6 The side of meat political philosopher, John Locke had earlier expressed similar sentiments and he wrote in 1690, it may be to a fault great a temptation to human frailtyfor the same person to have the power of reservation faithfulnessfulnesss, to have also in their hands the power to execute them, whereby they may exempt themselves from the obedience to the laws they make, and grounds the law both in its making and execution, to their own private advantage.7The scope of the doctrine of separation of power is not caste in iron. The doctrine has generated a lot of debate and is capable of different interpretations. Statements just about the existence and importance of separation of powers in the United kingdom should be treated with caution.8This essay pass on look at the doctrine of separation of power and if the doctrine operates in a satisfactory manner in the United Kingdom today. I will first look at the origin of the doctrine of separation of powers. I will then l ook at doctrine of separation of powers in the U.K crinkle of separation of powers.The doctrine of separation of powers includes a proposition about the functions of government, and discussions of the forms and functions of government may be traced affirm to ancient Greece.9John Locke recommended that the legislative and executive functions should be placed in separate hand, for the sake of force as well as for the protection of liberty. His classification of functions was in to legislative the executive, and the federative.10Collin Munro, professor of built-in law at University of Edinburgh wrote that , another related term, which has as long a history in political thought, is the business of ensuring that the exercise of governmental power, if it is necessary for the promotion of a societys values, may nonetheless be subject to limits so that it does not itself destroy those values. That is the principle of constitutionalism, which became primaeval to western democratic tradi tion government.11Another theory, which was first, developed in ancient Greece and Rome was the theory of mixed governments, which proposed that the major interests in society must be allowed to participate jointly in government, so preventing any one interest from organism able to dominate entirely. The doctrine, just like the doctrine of separation of powers was aimed at avoiding absolutism by preventing a monopoly of power.12Viscount Bolingbroke presented a clear delineation of the functions of the different arms of government. He wrote, A king of Great Britain is that dogmatic magistrate, who has a negative voice in the legislature. He is entrusted with the executive, and several other powers and privileges, which we call prerogative, are annexed to this trust. The ii houses of parliament have their rights and privileges, some of which are common to both, others particular to each otherthe supreme organization resides in the Lords. The Commons are the grand inquest of the na tion and to them it belongs to judge of national expenses, and to give supplies accordingly. 13Bolingbroke, had the vision to see that, in a constitution like ours, the safety of the whole depends on the balance of the move.14 In Bolingbrooks writings, he proposed that that no arm of government should have monopoly of power, that was the only way, the rights, and liberty of individuals could be protected.Montesquieu took on the constitution that Bolingbroke described as his model and explicitly restated the doctrine of separation of powers.The Separation of Powers in the UKThe separation of powers has been endorsed by contemporary UK judges, e.g. Lord Templeman in M v. Home Office (1993) 3 each ER 537.15Lord Diplock in a case concerning an industrial dispute stated, At a time when more and more cases involve the application of legislation which gives effect to polices that are the subject of bitter populace and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly found on the separation of power parliament makes the laws, the judiciary interpret them.16Sir John Donaldson MR once remarked, Although the United Kingdom has no written constitution, it is one of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of fan tan over the judicature which are immaterial present purposes. It thus behoves the courts to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament.17 Shortly afterwards, Lord Scarman referred to the doctrine in Re Nottinghamshire, in explaining why the courts should be slow to interject over the exercise of an executive power which had been subject to the specific approval of the place of Commons.18 More belatedly in the case of M v Home-Office, Lord Templeman remarked that , Parliament makes the law, the executive carry the law in to effect and the judiciary enforce the law.19Other judges have recognised it as applying at least between the legislature and the judiciary, e.g. Lords Nicholas and Hope in Wilson v First County Trust (2003) 4 on the whole ER 97.20 A strict separation of powers in the United Kingdom is impossible, because in strict constitutional theory the threesome functions of government are derived from the Crown.21 The Crown has always been an element in the exercise of all three kinds of powers, namely the executive, legislature and judiciary.22There is not, and never has been, a strict separation of powers in the side of meat constitution in the sense that the legislative, executive and judicial powers are assigned respectively to different organs, nor have checks and balances between them been devised as a result of theoretical analysis.23There is clear overlap between the three organs of government in the United Kingdom both in terms of personnel and between functions. The principal ov erlaps in personnel are that the majority of government ministers will be members of the House of Commons, piece other ministers will have seat in the House of Lords. The Lord Chancellor presided over the House of Lords prior to the thoroughgoing Reform Act 2005 in its legislative capacity. He was also the head of the judiciary and a cabinet minister. However, by virtue of Part 2 of the Act, the Lord Chancellor ceases to be a member of the judiciary and loses the judicial functions traditionally associated with the office. Future Lord Chancellors may be drawn from any the House of Lords or the House of Commons.24The principal overlap in functions are that government ministers direct the activities of central government departments and, as it has been alleged, through their majority in the House of Commons exert a controlling influence over its timetable, business and legislative output.25 The Law Lords exercise both judicial and legislative functions, although this dual rate will end when the Supreme Court is established. The Lord Chancellor will continue to be involved in the process of judicial appointment, notwithstanding that his judicial functions were removed by the 2005 Act.26 The Home deposit exercises the prerogative of mercy, and the Attorney General may enter a nolle prosequi to a prosecution on indictment.27In R. v Home Secretary ex. p Fire Brigades Union28, Lord Mustill referred to the peculiarly British conception of the separation of powers that Parliament, the executive and the courts each have their distinct and largely exclusive domain.29 Most writers on constitutional law unanimously agree that separation of powers is not a feature of the British Constitution. W.A Robson, likened Montesquieus doctrine to a rickety chariot and claimed that, the division of powers enunciated in this theory, and their allocation to separate branches of the government has at no full point of history borne a close relation to the actual grouping of authorit y under the system of government obtaining in England.30 In Halsburys Laws of England, Sir William Holdsworth denied that the doctrine of separation of powers had ever to any great extent corresponded with the facts of England.31 S.A de metalworker equally towed the line of other writers, arguing that the doctrine has no place in the British constitution. In his textbook on Constitutional and Administration law, he wrote, No writer of repute would claim that it is a central feature of the modern British constitution.32The doctrine of separation of power is susceptible to a variety of meanings. There appears to be a consensus amongst academics that , the doctrine is not a central feature of British constitution and that a strict separation of powers is impossible in the United Kingdom, however some lead story judges seem to have an opposite view. What the judges seem to have in mind is a version of the doctrine, which would require that the persons who exercise one kind of governmen tal function should not also exercise another.33ConclusionThere is no autocratic separation of powers in the United Kingdom. The Crown has always been a part in the exercise of all three kinds of powers, namely the executive, legislature and judiciary. There has never has been, a strict separation of powers in the English constitution in the sense that the legislative, executive and judicial powers are assigned respectively to different organs. There is clear overlap between the three organs of government in the United Kingdom both in terms of personnel and their functions.There are square(a) and not merely trivial links between the legislature and the executive, however, this does not mean that the separation of powers doctrine has been without effect.34 The doctrine of separation of powers, no doubt has shaped our constitutional arrangements and thinking, and continues to do so.35 The doctrine is not absolute in the United Kingdom nevertheless, it should not be dismissed lightly .BibliographyAlder, J (2005) Constitutional and administrative Law, fifth Edition, Palgrave Macmillan, LondonBarnett, H (2006) Constitutional and Administrative Law, 6th Edition, Routledge-Cavendish, OxonBradley, A.W Ewing, K.D (2007) Constitutional and Administrative Law, 14th Edition, Pearson, Harlow.Carroll, A (2007) Constitutional and Administrative Law, 4th Edition, Pearson, HarlowMarston, J Ward, R (1997) Cases Commentary on Constitutional and Administrative Law, 4h Edition, Pitman, LondonMunro, C.R (2005) Studies in Constitutional Law, 2nd Edition, Oxford University Press, OxfordParpworth, N (2006) Constitutional and Administrative Law, 4th Edition, Oxford University Press, OxfordPhillips, O.H capital of Mississippi (2001) Constitutional and Administrative Law, eighth Edition, Sweet Maxwell, LondonPollard, D, Parpworth N, Hughes, D (2001) Constitutional and Administrative Law, 3rd Edition, Butterworths, LondonThompson, B (1997) Constitutional and Administrative Law, 3rd Edition, Blackstone, London.1Footnotes1 Munro, C. R (2005) p.2952 Martson, J Ward, R (1997) p.2193 Alder, J (2005)p.1454 Alder, J (2005)p.1455 Landauer, J Rowlands, J (2001)6 LEspirit des Lois, 1748 citied in Carroll (2007) p.377 Second Treatise of Civil Government, 1690, citied in Carroll (2007) p.378 Marstson, J Ward, R (ibid) p.2199 Munro, C. R (2005) p.295artso10Munro, C.R (ibid) p.29811 Munro, C. R (ibid) p.29612 Munro, C. R (ibid) p.29613 Remarks on the History of England (1743) p.84 cited in Munro, C. R (ibid) p.29914 the Craftsman 27 June 1730 cited in Munro, C. R (ibid) p.29815 Alder, J (2005)p.15016 Duport Steels Ltd v Sirs (1980) 1 ALL ER 529 at p.54117 R v HM Treasury, ex p Smedley (1985) QB 657 at p.666 quoted in Munro, C. R (ibid) p.30618 (1986) AC 240 citied in Munro, C. R (ibid) p.30719 (1994)1AC 377 at 39620 Alder, J (2005)p.15021 Marstson, J Ward, R (ibid) p.21922 Jackson Leopold (2001)p.2623 Jackson Leopold (2001)p.2624 Carroll (ibid) p.38-4325 Carroll (ibi d) p.3926 Carroll (ibid) p.3927 Jackson Leopold (2001)p.2628 (1995) 2 AC 51329 (1995) 2 AC 513 at p.56730 W.A Robson (1951) p.16 cited in Munro, C. R (ibid) p.30431 Halsburys Law of England (1932) p.385 Munro, C. R (ibid) p.30432 SA de Smith R Brazier (1998)p.18 citied in Munro, C. R (ibid) p.30533 Munro, C. R (ibid) p.30734 Munro, C. R (ibid) p.32935 Munro, C. R (ibid) p.332