Scribd Logo
Upload

Welcome to Scribd!

  • 3K views

    2 Separation of Powers

    Uploaded by

    Choon Loong
    The British Constitution is largely unwritten and based on legal and political doctrines like the rule of law and separation of powers. While a strict separation could cause deadlock, there must be adequate separation to prevent abuse of power. In the UK, the executive and legislature are closely tied but there are checks like Parliamentary scrutiny. The judiciary is subordinate to Parliament but can interpret laws, representing a compromise between sovereignty and the rule of law. Judicial review also acts as a check on other branches. Overall, some overlap is necessary for efficiency but independence of the judiciary provides important checks and balances.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    2 Separation of Powers

    Uploaded by

    Choon Loong
    3K views4 pages
    The British Constitution is largely unwritten and based on legal and political doctrines like the rule of law and separation of powers. While a strict separation could cause deadlock, there must be adequate separation to prevent abuse of power. In the UK, the executive and legislature are closely tied but there are checks like Parliamentary scrutiny. The judiciary is subordinate to Parliament but can interpret laws, representing a compromise between sovereignty and the rule of law. Judicial review also acts as a check on other branches. Overall, some overlap is necessary for efficiency but independence of the judiciary provides important checks and balances.

    Original Description:

    SOP

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The British Constitution is largely unwritten and based on legal and political doctrines like the rule of law and separation of powers. While a strict separation could cause deadlock, there must be adequate separation to prevent abuse of power. In the UK, the executive and legislature are closely tied but there are checks like Parliamentary scrutiny. The judiciary is subordinate to Parliament but can interpret laws, representing a compromise between sovereignty and the rule of law. Judicial review also acts as a check on other branches. Overall, some overlap is necessary for efficiency but independence of the judiciary provides important checks and balances.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    3K views4 pages

    2 Separation of Powers

    Uploaded by

    Choon Loong
    The British Constitution is largely unwritten and based on legal and political doctrines like the rule of law and separation of powers. While a strict separation could cause deadlock, there must be adequate separation to prevent abuse of power. In the UK, the executive and legislature are closely tied but there are checks like Parliamentary scrutiny. The judiciary is subordinate to Parliament but can interpret laws, representing a compromise between sovereignty and the rule of law. Judicial review also acts as a check on other branches. Overall, some overlap is necessary for efficiency but independence of the judiciary provides important checks and balances.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 4

    A strict separation of powers would lead to a constitutional

    deadlock. Nonetheless, there must be an adequate separation of


    powers to avoid abuse of power. Discuss this statement with the
    reference to the British Constitution.
    The British Constitution is in nature largely unwritten and it is
    derived from legal sources and non legal sources including political
    doctrines. The concept of the rule of law, separation of powers and
    parliamentary supremacy runs like a thread through the British
    Constitution (Hilaire Barnett). The doctrines of separation of powers play a
    fundamental role in the British Constitution and are still practiced to this
    very day. The statement suggests that a strict separation of powers is
    undesired as it leads to a constitutional deadlock and alternatively, a
    complete overlap between the 3 organs of the state will lead to an abuse
    of powers. Hence, adequacy of separation of powers is vital in achieving
    desired powers concerning the three arms of the state.
    This doctrine is traceable to Aristotle and further expanded by and
    stressed by Baron Montesquieu. There are 3 organs which are legislative
    who makes law, executive who executes and implements the law and
    judiciary who plays an important role to apply and declare law. There must
    be separate from each other to prevent abuse of power as per Lord Acton
    power corrupts and absolute power corrupts absolutely. Besides, Bardley
    and Ewing noted that the doctrine may mean at least 3 different things
    which are the same person should not form part of more than one of the 3
    government, one organ should not control or interfere with the work of
    another, and one organ should not exercise the function of another.
    However, the modern view by Hiliare Barnett the doctrine is allocated
    clearly with check to ensure that no institution encroached significantly
    upon the function of the other.
    In the UK, and other common law jurisdictions, the executive and
    legislature are closely entwined. The Prime Minister and a majority of his
    or her ministers are Members of Parliament and sit in the House of
    Commons. The executive is therefore present at the heart of Parliament.
    By contrast, in the USA, the President may not be a member of the
    legislature (Congress), and is elected separately from congressional
    elections. This may result in the President being a member of a different
    political party from the majority of members of Congress. The UKs
    integration of executive and legislature is said to provide stability and
    efficiency in the operation of government. It has been described as a
    system that intentionally promotes efficiency over abstract concerns
    about tyranny. For example, the Prime Minister is usually both head of
    the executive branch and leader of the majority party in the legislature,

    which gives the executive branch much more freedom of action than a
    president usually enjoys in a presidential system of government.
    Additionally, the upper parliament, House of Lords is check within
    the House of Commons, as they can cause government to modify or
    abandon proposed legislation. Under Parliamentary Acts 1911 and 1949,
    the HOL has power to amend and delay non-Money bill for 1 year. Besides,
    Parliament may delegate law-making powers to the Government through
    powers to draft secondary or delegated legislation. This can liberate
    Parliament from the need to scrutinise small technical details, while
    maintaining the safeguard of Parliamentary approval. But, Chief Justice
    Hewart criticised delegated legislation being an abuse of power. However,
    DL is necessitated as it can reduce the heavy legislative programme and
    provided that parliamentary scrutiny is adequate.
    In this way, in the UK legislature and executive are far from separate
    powers. On the other hand, the executive presence in Parliament may
    actually facilitate scrutiny provided that the necessary procedures are in
    place. For example, Question Time can be a powerful procedure for
    holding the executive to account, throwing ministers straight into the
    lions den of the legislature. Besides The former Prime Minister, Gordon
    Brown, set out some of the arguments for the efficiency of a mixed
    system. He stated that often happens with the American constitution
    when Congress, the Senate and the President cannot agree on what needs
    to be done. It took the Americans weeks and months to get those
    provisions through their legislature as a result of the issues that arise from
    the separation of powers. In order to prevent the executive from
    controlling Parliament the House of Commons (Disqualification) Act 1975
    created limits on the number of salaried ministers who sit in the
    Commons. Additionally, the convention of ministerial responsibility
    establishes the accountability of government to Parliament.
    The second element of the separation of powers is separation
    between legislature and judiciary. In UK the Parliament is sovereign and
    that the judiciary is subordinate to the Parliament and there cannot
    question the validity of the Act of Parliament once the Royal Assent is
    given. However, there have some leeways to give judge to interpret
    statute and this raises the question of whether the judges are able to
    make law. There is an element of judicial law-making in the evolution of
    common law. In Magor and St. Mellons Rural District Council v
    Newport Corporation the HOL rejected the approach of Lord Denning
    stated that courts should filling the gaps of the legislation. However, Lord
    Reid said that while it was once thought almost indecent to said judge
    make law, the notions that judges only declare the law was outdated.

    Lord Scarman argued a middle course, suggesting that the objective of


    judges is the formulation of principles; policy is the prerogative of
    Parliament.
    The cooperation between judiciary and legislature has been
    described as a constitutional partnership as Parliament may give tacit
    approval to judge-made law by not interfering with it. Professor
    Bogdanor has argued, for example, that the Human Rights Act
    necessitated a compromise between two doctrinesthe sovereignty of
    Parliament and the rule of lawand that the compromise depends upon
    a sense of restraint on the part of both the judges and of Parliament. In
    Factortame (no 2) Lord Bridge interpreted the European Communities
    Act 1972 to mean that UK statute would not apply where it conflicted with
    European law, a significant departure from the principle of Parliamentary
    sovereignty. Besides, S 4 HRA 1998 also stated that a court can declare a
    statute to be incompatible with the European Convention on Human
    Rights and the Government is then obliged by the Convention to rectify
    the inconsistency.
    Furthermore, the sub judice rule intended to defend the rule of law
    and citizens right to fair trial. Where an issue is awaiting determination by
    the courts, that issue should not be discussed in the House in any motion,
    debate or question in case that should affect decisions in court. However,
    the sub judice rules are not absolute one. The 1999 Joint Committee on
    Parliamentary Privilege explained that sub judice rules are intended to
    strike a balance between two sets of principles. On the one hand, the
    rights of parties in legal proceedings should not be prejudiced by
    discussion of their case in Parliament, and Parliament should not prevent
    the courts from exercising their functions.
    The third element of separation is between the executive and the
    judiciary. There are several implications for the separation of powers
    requires examination. First, the judicial review is a action designed to
    ensure that any delegated legislation is consistent with the scope of
    power granted by Parliament and to ensure the legality of government
    action and the actions of other public bodies. From this perspective, it may
    argue that the judges are upholding the will of Parliament in controlling
    the exercise power delegated by it own subordinate. Recently, the use of
    the judicial review increase considerably by the HRA 1998 and S6 of this
    act make it unlawful for any public authority.
    The judges have traditionally exercised self-restraint or deference
    in the areas of power that they regard themselves as competent to review.
    Some uses of the royal prerogative, for example, involve issues of high

    policy, such as the appointment of ministers, the allocation of financial


    resources, national security, signing of treaties and defence matters and
    judges would not usually interfere in these matters. For an example of this
    traditional view see the case of GCHQ. More recently, in A v Secretary
    of State for Home Department, concerning the detention without
    charge of suspected international terrorists in Belmarsh prison, the
    Attorney General argued that these were matters of a political character
    calling for an exercise of political and not judicial judgment. However,
    Lord Bingham, rejected this argument, concluding that the function of
    independent judges charged to interpret and apply the law is universally
    recognised as a cardinal function of the modern democratic state and
    that the Attorney General was wrong to state that it is undemocratic.
    In conclusion, the statement above is truly to say that a strict
    separation of power can rise deadlock and there must be adequate
    separation of powers. The overlaps of powers are inevasible in order to
    carry out efficient working of the constitution and certain function.
    However, the judiciary have to be independence and it can provide
    greater check and balance to avoid an abuse of powers.
    http://researchbriefings.files.parliament.uk/documents/SN06053/SN06053.
    pdf

    You might also like