• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Do we agree with Lord Diplock's view that the British Constitution is firmly based on the separation of powers?

Extracts from this document...


"It cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers" Duport Steels v Sirs [1980] 1 WLR 142, per Lord Diplock The question here is, do we agree with Lord Diplock's view that the British Constitution is firmly based on the separation of powers? In addressing Lord Diplock's view, the first point to consider is the meaning of the doctrine, 'the separation of powers' and its origin then consider whether or not there's a separation of powers in the British constitution in which the overlaps between the legislative, executive and judiciary arms of the British constitution will be examined. The doctrine of separation of powers has emerged in several forms at different periods and in different contexts and is traceable back to Aristotle; it was developed by Locke; its best known formulation, by the French political philosopher Montesquieu, was based on an analysis of the English constitution of the early eighteenth century. The doctrine, formulated by Montesquieu in L'Espirit des Lois briefly stated the following. * There are three main classes of governmental functions: the legislative, the executive and the judicial. * There are (or should be) three main organs of government in a State: the Legislature the Executive and the Judiciary. * To concentrate more than on class of function in any one person or organ of government is a threat to individual liberty. For example, the executive should not be allowed to make laws or adjudicate on alleged breaches of the law; it should be confined to the executive functions of making and applying policy and general administration.1 In other words, the doctrine of separation of powers believes that each of ...read more.


[1994, p 18]9 However, this overlaps will no longer exist, as the judicial function of the Lord Chancellor is to be abolished and replaced by a Secretary of State for Constitutional Affairs which means he will not fulfil the judicial function or role of the Speaker of the House of Lords. There is already a temporary exercise where the office of Lord Chancellor gained a temporary reprieve and Lord Falconer of Thornton was appointed as the new Secretary of State for Constitutional Affairs.10 The doctrine of separation of powers provides that the judiciary should not have law making power. However, judges in a sense do have a law making power as they can develop common law. The 'declaratory' theory of precedent - the theory that judges do not make law, but only declare the common law or common customs of the realm - persisted, into the 19th century, but is more generally recognised that the judges in the UK do exercise some law making function, with the intent acquiescence of Parliament.11 A striking example of this creative function was the House of Lords decision in Burmah Oil v Lord Advocate12where the House of Lords held that the oil company had a common law right to be compensated for the destruction of the installation by British forces which were acting under prerogative.13This case illustrates how the courts may develop common law in order to take account of new situations. Equally, however, the courts have been prepared to rely on the doctrine of the separation of powers to justify a refusal to create new rights. Hence in Malone v Metropolitan Police Commissioner14. ...read more.


PLEASE, E-MAIL ME WITH YOUR RECOMMENDATIONS AND CRITICISMS, IF ANY. I HOPE I'M NOT TAKING TOO MUCH OF YOUR TIME BECAUSE I CAN'T THANK YOU ENOUGH FOR THE PART YOU'VE PLAYED IN HELPING ME (A TERRIBLY CONFUSED AND SCARED 1ST YEAR STUDENT!) WORD COUNT: 2,605 WORDS. 1 Brazier, R. (1998) Constitutional and Administrative law. London: Penguin 2 Vile, MJC. (1967) Constitutionalism and the Separation of powers. Oxford: Clarendon 3 For the eighteenth century, Holdsworth finds Montesquieu's analysis inadequate and misleading: History of English Law, Vol. X. pp.713-724 4 Parpworth, N CONST AND AD pp199-200 5 Parpworth, N p45 6 R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 WLR 1 7 Bagehot (1993) The English Constitution, pp 67-68 8 Stafford v United Kingdom [2002] NLJR 880 9 Barnett, H (2002) Constitutional and administrative law. London: Cavendish, p 111 10 www.telegraph.co.uk 'Reform blocked by 1,400 years of tradition' by Joshua Rosenburg and George Jones (14/06/2003) 11 Molan, M, T (1999) Constitutional law: The Machinery of Government. London: Old Bailey Press 12 Burmah oil v Lord Advocate [1965] AC 75 13 Parpworth, N (2002) Constitutional and Administrative law. London: Butterworths, p 240 14 Malone v Metropolitan Police Commissioner [1979] Chapter 344 15 Entick v Carrington [1765] All ER Rep 41 16 See 13. 17 M v Home Office [1992] 2 WLR 73 18 See 13. p 25 19 Definition of Judicial independence by former Lord Chancellor, Lord Mackay of Clashfern Barnett, H Constitutional and administrative law (2002) London: Cavendish. 20 Bill of Rights 1689, Article 9. 21 R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 All ER 93 22 [1964] 2 All ER 348 ?? ?? Abisola Oshinusi Constitutional and Administrative law essay 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. Lon Fuller - professor of Jurisprudence at Harvard.

    that it represents a morality of aspiration. I have already defended, against Nolan's objections, the Inner Morality of law in this light. But, to extend Hart's analogy of the poisoner, might not the legislator also use laws, enacted in clear observance to all the desiderata, to terrorize the populace?

  2. Royal Prerogative

    A similar situation arose in R v Hampden or the case of Ship Money10 were it was held the king was entitled to impose a charge for providing ships without the common consent of parliament. Godden v Hales followed the case of ship money as by this time James II

  1. Lease or Licence

    similar facts; Kay v Lambeth LBC 47 and London Borough of Islington v Green and O'Shea.48 The court of appeal in both of these cases have confirmed that a licensee can grant exclusive possession amounting to a tenancy despite their status and that this agreement will be binding on the

  2. "The need for an independent judiciary is recognised throughout the free world. It is ...

    imposed non-judicial duties on the courts and thus violated the separation of powers"11. For the traditional doctrine states that courts "review" and do not "appeal" legislation enacted by the elected representatives of the people, since they are not Platonic philosopher-kings.

  1. Critically analyse Police powers on Stop and Search, Arrest and Detention.

    The report on Race and the Criminal Justice system also showed that ethnic minorities were over-represented in the criminal justice system but under represented as employees. Once a person has been arrested they are taken to a police station where they are detained.

  2. Law Making - Judicial Precedent.

    A judge dealing with a burglary case will never face the same circumstances as the case of Collins which creates the precedent on criminal trespass. Some judges feel that judicial precedent restricts their legal creativity. To avoid precedent the constantly distinguish the case before them with the precedent being quoted.

  1. ''A system of coercion imposing norms which are laid down by human acts in ...

    indicated the difficulties inherent in any attempt at investigating the law as a phenomenon 'in itself'. Thus, the law relating to theft may have little 'meaning' save as an expression of communal ethical attitudes to the ownership and possession of property.

  2. Principles of UK constitution + express & implied repeal

    Historically in order to establish what constitutes an Act of Parliament the courts would apply the ?enrolment bill rule? i.e. see whether the Act in question has passed both Houses of the Parliament and that it received the Royal Assent (Edinburgh and Dalkeith Railway Co v Wauchope (1842)

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work