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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...

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Introduction

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. ...read more.

Middle

According to the doctrine, as well as the functions of the three branches being distinct from one another so should the personnel. Nevertheless, in the UK, there is a clear link between the three bodies within the system of government. This can be seen by members of the executive that sit within the legislature as do some members of the judiciary. However the most noticeable breach of the doctrine of the separation of powers is the position of the Lord Chancellor who sits in all three branches. His position in relation to the doctrine within the constitution will be discussed later. One reason why it has been held that the UK constitution is in breach of the doctrine is to do with the fact that the UK, unlike other countries such as America and France never underwent a lasting revolution. This therefore means that there has not been a need to establish a new constitution and so the separation of powers has not been incorporated specifically into the constitution. After a revolution is over, a written document is regularly produced in order to clarify and certify certain rules that govern bodies within the State, including that of the separation of powers. However in the UK, the separation of powers has not been clearly set up in the form of a written document, which increases the possibility of excessive power and therefore tyranny. ...read more.

Conclusion

Furthermore the courts still cannot declare an Act of Parliament as unconstitutional as seen in Pickin v British Railway Board8. This supports the theory of separation of powers, as the judiciary cannot trespass into territory of the legislature. The judiciary appear to be very keen that each primary body work within its own allocation of power and will say when a member of the executive has exceeded their allocated powers and will also refuse jurisdiction when lawful authority is not being used. In R v Secretary of State for the Home Department ex parte Fire Brigades Union9 the House of Lords held that the home secretary had acted unlawfully in the way they had used the prerogative. On the other hand, in Chandler v DPP10 the court refused to hear the case on the grounds that the evaluation of threats to national security is not for the judiciary but for the government. In conclusion to this essay, I feel that both sides of the argument have been looked at and it is fair to say that the UK constitution does not include an absolute separation of powers however the doctrine also does impose limits on the exercise of governmental power. In my opinion, I feel that the doctrine of separation of powers does exist to some extent within the UK constitution however I also believe that from Montesquieu's perception, the doctrine does not exist on a scale as imagined and expressed by himself. ...read more.

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