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The Theory of the Separation of Powers in UK Government.

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Introduction

´╗┐SEPARATION OF POWERS The doctrine of SOP is the appropriate allocation of powers and the limits between the legislature, executives and the judiciary. Each state organ must be rules by different people and each of them have different powers. The doctrine originated from Aristotle, where he distinguishes the deliberative, majesterial and the judiciary in every constitution. By the 13th century, England?s King, Lords and Commons could be classified in three types of government, monarchies, aristocracies and democracies as per ancient Greece. In UK today, Montesquieu sees SOP in a different way. He believes there is legislative, executive and judiciary in a constitution. Currently, there is a proper allocation of powers between the three state organs. Furthermore, the SOP doctrine aims to avoid absolutism in power by preventing a monopoly of powers and functions. Montesquieu also mentions that all would be lost if the same man or same ruling body were to exercise these powers. This shows SOP is important in upholding the rule of law doctrine in the British Constitution. Since there is an unwritten constitution in UK, it is a product of experience and does not recognize strict SOP. ...read more.

Middle

Legislature performs judicial functions as they enforce parliamentary privileges. The House of Parliament can act like a criminal court in considering if someone is in contempt of Parliament. A series of memos were leaked from the Home Office in 2008 and police investigation led to a minister, Damien Green who was protected from arrest due to parliamentary privilege, protecting members of Parliament. Judges can make law like in R v R and can declare a statue incompatible through section 4 of the Human Rights Acts 1998. Since no one can question an act of parliament, it can alter the effects of judicial decisions, as parliament is sovereign. In the case of Burmah Oil, the War Damages Act 1965 was made respectively. Due to Parliament being supreme, there is very limited check and balances between the legislature and judiciary. Executive and Judiciary Likewise, the Queen and Lord Chancellor (used to) have memberships in the two state organs. The judicial committee of the Privy Council whose members includes former and present Lords of Appeal. Through the Act of Settlement 1700, there is judicial independence and dismissal is no longer at the discretion of the executives. ...read more.

Conclusion

This principle was applied in M v Home Office with the decision that judicial review cannot be against the Crown. However a minister or officer acting on behalf of the Crown is subject to judicial review. The Attorney General may stop proceedings on the grounds of nolle prosequi like in the case of Gouriet, where judicial review could not have been done, as AG?s decisions cannot even be challenged in the courts. Though the checks and balances such as the sub-judice rule, executives appointing judges through the Judicial Appointment Committee, the courts protect rights like in Entick v Carrington and also ensure that the government is under law like in M v Home Office. Hence it shows that these are sufficient checks and balances and can also been seen as effective. In conclusion, SOP is a much-respected doctrine in UK, upholding rule of law. However due to the overlaps between the state organs, there are no material differences as per Sir Ivor Jennings. Since the British constitution is unwritten and gradually develops, the doctrine of SOP has helped set a sufficient amount of overlaps, checks and balances. Thus as per Barnett, SOP together with rule of law along with parliamentary sovereignty runs like a thread throughout the British Constitution. ...read more.

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