Public Law 1 - Assessed Coursework 2004 Over the years the UK constitution has come underscrutiny regarding the doctrine of the separation of powers. This doctrine isseen as being vital for any constitution to run smoothly with no problems. Inorder...

Authors Avatar

Public Law 1 – Assessed Coursework 2004

Over the years the UK constitution has come under scrutiny regarding the doctrine of the separation of powers. This doctrine is seen as being vital for any constitution to run smoothly with no problems. In order to examine the statement made by Lord Simon I will first look at the definition of Separation of Powers as well as how it relates to the three primary organs of the UK constitution. I shall then go on to look at breaches of the fundamental doctrine and whether the view of Lord Simon can be viewed as being accurate or not.

        The doctrine of the separation of powers was first put forward by a French political theorist named Charles de Montesquieu in 1748. In his book, ‘the spirit of the law’ he stated that the liberty of the individual is secure only if the three primary organs of the state; the executive, legislature and the judiciary are distinct and independent in both duty and in persons. This ensures that no one body accumulates excessive and uneven balance of power, which is in violation of the doctrine. Montesquieu also believes that the doctrine would produce institutions that are relatively independent from one another and supports a system of checks and balances. Thus it is fair to acknowledge that the doctrine prescribes the appropriate allocation of powers and the limits of those powers. It is the relationship between the doctrine and the three essential bodies that is fundamental to any constitution.

        ‘ The separation of powers runs like a thread throughout the constitution of the United Kingdom.’   It is this type of statement that can be misconstrued to be inaccurate because of certain breaches of the doctrine. I think it is vital firstly to look at the three primary bodies that interact with the doctrine of separation of powers. The executive (Government) is branch of the State which ‘ formulates policy and is responsible for its execution.’ It has the power to administer law or apply the law. The legislature (Parliament) has the power to interpret the law and decide disputes. It considers proposals for legislation, which fall under two categories: 1. Primary- refers to Acts of Parliament

2. Secondary (delegated)- refers to legislation drafted by authorised persons or bodies under the authority of a ‘parent’ statute, which is delegated to ministers. Where delegated legislation comes to be incompatible with EU law, it can be judicially reviewable to be looked at in accordance with rules or powers given under Acts of Parliament. Disadvantage of delegated legislation is that it is not properly scrutinised.

Join now!

Finally the judiciary (Court system) is responsible for applying the law in settling legal disputes by interpreting legislation so as to enforce the intention of Parliament. It has the power therefore to make law.  

        These are the functions set out for each of the principal bodies however in the UK it can be seen that there certainly is not a clear separation between the branches of the State. Instead, there is a striking dominance by the executive over the legislature. Traditionally, the leader of whichever party in the Commons that commands a majority forms the Government (executive). As a ...

This is a preview of the whole essay