Examine the implications of the doctrine of the separation of powers and the concept of the rule of law for the exercising of prerogative power.

No current or past strict separation of powers has ever existed in the English constitution assigning constitutional laws to the different organs, referring to the legislative, executive and judicial bodies. Theoretical analysis has shown that no serious checks or balances are devised between these bodies of power. Development of public institutions has been mainly of empirical in that the Crown has always been a key element. The executive as the Queens government (Her Majesty's ministers), the legislative as the Queens parliament (throne in the House of Lords, royal assent to Bills) and the judiciary as the Royal Courts of Justice (Her Majesty's judges, indictment in the name of the Queen).3 Recently they have been disputes over the Lord Chancellors role as a cabinet minister and the head of the judiciary. This has been seen as incompatible with these two roles intertwining with his functions as the executive. The Home Secretary exercise the prerogative of mercy and the Attorney General may enter a nolle prosequui to a prosecution on indictment. Ministers and government powers have departments to delegate legislation, while ministers and administrative tribunals make decisions affecting private rights; local government has authority to make byelaws for the good rule and are that area. The House of Lords as the second chamber also acts at some capacity as the final court of appeal. Courts must at some degree, have executive power to enforce decisions without interference their proceeding. Final appeal from certain overseas courts in certain cases lies with the judicial committee of the Privy Council, technically an advisory executive organ of the crown. The absence of judicial review of the Acts of Parliament may be recognize as a separation of powers as parliament can amend and put forward acts without interference from the courts. This expresses the doctrine of the sovereignty of parliament, though the doctrine gives parliament the power to make law judges have the sole duty to apply and interrupt the law where necessary. In the case of Abse v. Smith [1986] the courts showed no concern in interpreting the law to the wishes or views of the government and nor to the interruption being unwelcome.4 The Lord Chancellor at times sits in devolution cases and concern has been expressed on this issue. The Human Rights Act 1998 brought about a case of McGonnell v. U.K.5 where the decision of European Court of Human Rights ruled on the breach of Art.6 E.C.H.R on the position of the Deputy Bailiff of Guernsey as judge and member of the legislature. In R v. Home Secretary ex p. Fire Brigades Union [1995] this case demonstrated that the recent decision of the House of Lords raises important constitutional questions about the extent to which the government is required to seek Parliamentary approval for its policies or may rely instead on prerogative powers. This note considers the implications of the ruling that the Home Secretary acted unlawfully in introducing a revised criminal injuries compensation scheme under the prerogative power, rather than implementing the statutory scheme under the Criminal Justice Act 1988. 6 It is argued that the House of Lords reached the right decision, but for the wrong reasons.

The concept of parliamentary sovereignty means that Parliament is the supreme legal authority in the UK. In many countries, for example, the Constitutional laws limit the USA legislature. The U.S. Supreme Court can declare laws passed by the legislature to be unconstitutional and therefore invalid. The traditional view in the UK is that Parliament is not subject to any legal limitation and that the UK courts have no power to declare laws duly passed by Parliament invalid. According to A.V. Dicey, "In theory Parliament has total power. It is sovereign."7 Dicey's view of parliamentary sovereignty consisted of different factors:

. Parliament is competent to pass laws on any subject;

2. Parliament's laws can regulate the activities of anyone, anywhere;

3. Parliament cannot bind its successors as to the content, manner and form of subsequent legislation; and Laws passed by Parliament cannot be challenged by the courts.

However, Parliament may in practice limit its own sovereignty by for example:

* The European Communities Act 1972

"The ECA 1972 gave effect to British entry to the European Union. Directly applicable EU Law now applies in the UK and takes precedence over national law."

In the Factortame Case (1990), the European Court of Justice held that English courts could not apply the Merchant Shipping Act 1988, designed to protect British fishermen, because it contravened the Treaty of Rome 1957.

The Bill of Rights, entitled "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown", is one of the basic documents of English constitutional law. It was signed in 1689 by William of Orange and Mary II in return for their being affirmed as co-rulers of England and Ireland by the English Parliament after the Glorious Revolution.

The Bill of Rights put forward that:

* Englishmen possessed certain civil and political rights that could not be taken away. These included:

o freedom from royal interference with the law

o freedom from taxation by royal prerogative, without agreement by Parliament

o freedom to petition the king

o freedom to bear arms for self-defence

o freedom to elect members of Parliament

o the freedom of speech in Parliament

o freedom from cruel and unusual punishments

o freedom from fines and forfeitures without trial

In the separate Kingdom of Scotland, the 1689 Claim of Rights of the Scottish Estates was expressed in different terms, but to a largely similar effect declaring William and Mary to be King and Queen of Scotland. The Bill of Rights was later enhanced by the Act of Settlement in 1701 and became a major step in the evolution of the British government towards parliamentary supremacy, and the limitation of the rights of the monarchy.

The rule of law entails that governmental authority only be exercised in agreement with written laws, which were adopted through established procedure. The principle is anticipated to safeguard against arbitrary rulings in individual cases that might arise. Perhaps Albert Venn Dicey laid down the most famous exposition of the concept of rule of law: "When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. ...

:... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person." The phrase 'The Rule of Law' was historically first used as a reference to depict that law posses a higher authority - whether divined or natural - it was regarded as high power. In the British government parliament is the higher power and it can be said, in constitutional terms, that England has no rule of law. Since no superior law puts limitations to parliament can legislate the rule of law is very difficult to recognise. Although the courts have no power to hold legislation unconstitutional they can interpret it on assumption, that parliament did not intend to breach any fundamental principles of common law. "I must ... be faithful to parliament always sovereign will. Nevertheless, I am entitled to presume that parliament always intends to conform to the rule of law as a constitutional principle and accordingly to respect the constitutional rights of the individual to enjoy equality under the law."8 In X Ltd v. Morgan-Grampian (Publishing) Ltd Lord Bridge said "the rule of law rests on twin foundations: the sovereignty of the Queen in parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying law."

In England the constitutionals separation of powers is more diverse and flexible, it does not have the rigidity of most written constitutions as parliament can apply law and amend laws as they see fit. This is not to say that parliament can one day write a law discriminate or take away fundamental human rights, as the courts would no apply these laws. Nevertheless, while other countries have a constitution that limits certain powers being given one main branch British law allows other organs to have freedom another way. Judges have independence from the executive due to the safeguard of their position; this allows them the freedom to make decisions freely. In this way, the rule of law still applies and this allows parliament to still maintain sovereignty without the judiciary being overridden on decisions. In conclusion, the absence of a written constitution has allowed a number of considerable changes to be made informally, without amendment to legal rules that already exist. A written constitution would put into perspective each systems limitations and powers. This would also introduce a clear separation of powers and put fourth a precise view laws that regulate each institution. The implications of the constitution as it is right now are that the majority of power has been placed into one institution and cannot be overridden by the courts. The government as it stands right now has the power to re-write, present new laws as it wish, and the courts have implemented them as they see fit. The judicial system has no powers to revoke parliamentary laws and the courts should be the main body that is included in law making.

BIBLIOGRAPHY

BOOKS

* Greer Hogan. Constitutional and Administrative Law, sixth edition, Sweet & Maxwell

* E. Barendt, An Introduction to Constitutional Law (1998)

* History of English Law, Vol. X

INTERNET

* www.hcourt.gov.au/speeches/haynej/haynej_DisputeResolutionBeijing

* www.lawteacher.net

* www.worldhistory.com/wiki/s/separation-of-powers.

Student No. 245987

In the circumstances that lead me to email my work to Nick Bogg were that, my printer had run out of ink and with no disk on which to save my document I was unable to hand in the work personally. I emailed my work to Nick Bogg after a head of Business school or Law offered me Mick's email in light of my problems. I was told to explain these issues in the email so that it could be printed and handed in. I now email you after countless visits to his offices and some phone calls. I have sent you this attached documentation as evidence of the work lost. Thank you in advance for looking into this matter.

I was unable to email you privately to the address [email protected] as my email is playing up.

L'Esprit des Lois, Chap. XI, pp. 3-6

2 E. Barendt, An Introduction to Constitutional Law (1998) pp. 32-34

3 History of English Law, Vol. X

4 Abse v. Smith [1986] Q.B 536

5 The Times, February 22, 2000

6 R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 WLR 464

7 Law of the Constitution, (1885)

8 Fitzpatrick v. Stirling Housing Association [1998] Ch. 304, 337