Separation of Powers

The relationship between the executive and judiciary and legislature

In light of the doctrine of separation of power, is necessary to evaluate the manner in which, and the extent to which, separate functions are allocated between the differing bodies and kept separate. This task is most controversially undertaken by examining the relationship between first, the executive and the legislature, secondly, the legislature and judiciary, thirdly, the executive and the judiciary

The Supreme Court

One constitutional curiosity which represented a challenge to the separation power was the existence of the highest court in United Kingdom, the Appellate Committee of the House of Lords, sitting in Parliament. Judges elevated to the highest court where made life peers under the Appellate Jurisdiction act 1876, and known as lords of appeal in ordinary, or Law Lords, and judgements were delivered in the chambers of the House of Lords, where its legislative work is carried out. The judges also contributed to do legislate work of the House of Lords, further blurring the line between the judiciary and the legislators. The arrangement can only be understood by reference to the Constitutional Convention, which regulate the relationship between the judges sitting in their judicial capacity and the judges participating in the lawmaking work of the House of Lords. Conventions dedicated that in order to protect their independence and impartiality judges would not participate in party political debates. The Constitutional reform act 2005 remedied this anomalous citation by creating a Supreme Court physically removed from the house of Parliament. Situated in Middlesex Guildhall, opposite the house of parliament, the sprinkle represents an improved separation of power between Parliament and the judiciary and complements the reformed office of Lord Chancellor. Although the name 'Supreme Court'was adopted, the court was not given additional powers and is not comparable to a Supreme Court under a written constitution. Accordingly, it has the same power as the Appellate Committee of the House of Lords, and as previously has no power to invalidate acts of parliament. The Justice of the Supreme Court sits in panels of five, seven or nine Justice. Proceeding are open to the public

Legislature and judiciary

Parliament is sovereign and that the judiciary is subordinate to Parliament, but that the independence of the judiciary is protected. At the head of the judiciary is the Crown. The Crown appoints senior judges and represents the 'Fountain of justice': all judicial acts are carried out in the name of the Crown. Rules against criticism of the judiciary to reinforce the independence of the judges, conventions dictates that there should be no criticism levelled at them from members of the executive - but not from other members of Parliament. Parliamentary practice prohibits the criticism of judges other than under a motion expressing specific criticism or leading to an address to the Crown for the removal of a judge. It was not, however, regarded as a breach of conventional rules when the then Prime Minister, Mrs Thatcher, in Parliament, criticised the light sentence imposed on a child molester. There have, however, been other incidents where judges have been criticised in Parliament. The manner in which members of Parliament are controlled in terms of what they may, or may not, say, through the power of speakers of the House of Commons. The sub judice rule Where proceedings are either before a court or waiting trial, members of Parliament are barred if the speaker considers that there would result a real and substantial danger of prejudice to the trial arising as a consequence. No reference may be made to criminal proceedings from the time of the charge being made until the final appeal is determined. Parliamentary supremacy and the judicial function the doctrine of parliamentary supremacy entitles the necessary constitutional subordination of judges to Parliament and has several implications. First, it is well established that the sovereign Parliament can overturn any court decision by way of legislation. For example, the war damage act 1965. Secondly, the judges primary role in relation to the interpretation of statutes is to give effect to the latest expression of the will of Parliament. This principle can be seen in the case of - Vauxhall Estate Ltd v Liverpool Corporation (1932); Ellen Street estate Ltd v Minister of health (1934) The human rights act 1998 was consciously drafted in such a manner as to preserve the balance of power and separation of power between the judiciary and Parliament. This is accomplished by providing that primary (but not secondary legislation is remain immune from being declared invalid. Even where there legislation is ruled to be incompatible with Convention rights. Where judges in the higher court make 'declaration of incompatibility', the matter is referred back to the executive to determine whether, and in what form, amending primary legislation should be enacted by Parliament. Judges as legislators One of the most debated aspects of the relationship between the legislature and the judges lie in the question: 'do judges make law?' In constitutional terms, the issue is whether by making law-either by virtue of the doctrine of precedents or through the interpretation of statutes-the judges are usurping the legislative function or, in other words, violating the separation of power. The role the judges as lawmakers must be understood against the back drop of the long history of common law - the law common to the whole country, developed by the judges, rather than by act of Parliament. In terms of the volume of law, Parliament only became the principal lawmaker in the 19th century when the effect of industrialisation required major programmes of legislation, much of it relating to safety at work and employment law, Housing, health and relief from property. Acts of Parliament are supreme and may overturn the common law, as occurred in the case of - Burmah Oil v Lord Advocate (1965): in which the House of Lords awarded compensation for the property loss and Parliament ruled the decision by enacting the water damage act 1965 However, when judges make law, Parliament may also 'tacitly' approve the decision by not interfering with it: when this occurred it can be said that judges and Parliament are acting in a form of constitutional partnership. Parliament may also expressly induce a judicial decision by incorporating it into a statute as occurred with the amendment to the statutory definition of rape, following the House of Lords decision in R v R (1991). The rule of precedent does have been developed by the judges in order to ensure certainty and uniformity in decision. The need for certainty is expressed in the words stare decisis: 'stand by the decided case'. In essence, decision of the highest court-the Supreme Court-are binding on all the courts lower in the hierarchy. Furthermore, the Supreme Court is very slow to go against a previous decision of its own, although the house of laws had the power to do so since 1966. Decisions of the next highest court-the Court of Appeal, are binding on the courts below in the hierarchy, and the Court of Appeal may only depart from its own previous decision under limited circumstances. As seen in the case of young v Bristol aeroplane Ltd (1944). There is thus a structure in place by which the lower court are controlled by the decision of the higher courts. It is of course essential that while the law is certain, it is also able to reflect changes in society. The requisite flexibility is provided within the rules that structure. The extent to which judges may depart from previous decisions. It should be noted that not all aspects of a previous case will be binding on a new case before the court. What is 'binding' is the ratio decidendi of the precedent case, and the ratio may be defined as 'the rule of law upon which the decision is founded', or 'the material facts of the case plus the decision thereon'. Other aspects of the precedent judgements are known as obiter dicta: being said 'by the way', which are not binding on future courts, but may nevertheless prove to be higher influenced in the future. The rules also include the technique of distinguishing: the reasoning process through which it can be said that the facts before the court in the instant case can be distinguished from those of a precedent case, thereby making its decision inapplicable. Taken together, the rules relating to being bound by the higher courts and to the ratio and distinguishing produce a high degree of stability, while also allowing for the necessary flexibility. The rules of statutory interpretation, devised by the judges themselves, are designed to limit judicial creativity. Statutory interpretation is not straightforward, even though Act of Parliament are crouched in detail language in order to maximise the clarity and minimise vagueness or obscurity. Despite this attempt to achieve clarity in statutory language, it is artificial to deny that judges 'making law'. Every new meaning conferred on a word, every application of a rule to a new situation, whether by way of statutory interpretation or under common law, 'creates' new law. Judges have themselves abandoned the fiction of the 'declaratory theory' which asserts that they do not 'make' law but merely discover its true meaning. From the separation of power perspective, judicial lawmaking should cause disquiet only if judges display overtly dynamic law making tendencies. By way of illustration, in - Magor and St Mellons Rural DIstrict Council v Newport Corporation (1965), Lord Denning MR was accused by Lord Simonds in the House of Lords of 'naked usurpation of the legislator function'. The traditional techniques of statutory interpretation contrast remarkably with the European method of interpretation. Civil codes are, for the most part, phrase in broad language which indicates the objective(s) being sought. The interpretative technique-the teleological or purposive approach-is accordingly designed to guide the judge towards the desired outcome and involves far less detailed construction of the statutory was then in customary within the English legal system. The scope for 'creative' interpretation has been enlarged by the human rights act 1998, section free of which requires the judge to 'read and give effect to' primary and subordinate legislation 'in a way which is compatible with Convention rights'. Even here, however, Parliament has restricted this requirement by the preceding words 'so far as it is possible to do so', the judges recognise and respect this limitation. The High Court of Parliament Parliament has the sovereign power to regulate its own composition and procedure. Under parliamentary privilege-derived from the law and custom of Parliament and thus part of the common law-Parliament, and not the courts, has jurisdiction to rule on its own power. Parliament cannot, however-other than by an act of Parliament-extend its own privileges. As seen in the case of Stockdale v Hansard (1839). The role of the judge in relation to privilege is to rule on its existence and extent. Once the court is satisfied that a particular matter falls within Parliament domain, it will defer to Parliament. Accordingly, if, for example, a citizen is defamed by the absolute privilege of free speech in parliamentary proceedings, (as seen in the Bill of Rights, Article IX) there is no redress. Privilege will thus protect the member of Parliament from the law of defamation and leave the aggrieved visual without a legal remedy. Privilege also extends to regulating the legislative process. It is for Parliament alone to determine the procedure by which an act of Parliament should come into being. It is clearly established that, in order to become an act of Parliament, a bill must pass this legislative stages in the Commons and Lords (except where a Parliament act apply) before receiving Royal assent. Once the process is complete, it is not for the judiciary to enquire behind the parliamentary role. As seen in the case of Pickin v British Railway Board (1974).

Appointment

The Lord Chief Justice, Master of the Rolls, President of the Family Division, vice chancellor, Lord Justice of appeal, and justice of the Supreme Court are appointed by the Queen. For appointment to the High Court, the candidate must be a barrister of 10 years standing, or a solicitor with rights of audience in the High Court, or a circuit judge of two years standing. For appointment to the Court of Appeal, the candidate must either be a barrister of 10 years standing, a solicitor with rights of audience in the High Court, or a current member of the high court bench. The Lord Chief Justice is the head of the judiciary, assuming the additional title of president of the courts of England and Wales and head of the judiciary of England and Wales, and Lord Chief Justice of Northern Ireland and the Lord Pres of the courts of session in Scotland may make written representation to Parliament on matters relating to the judiciary or the administration of justice. The socio-economic and educational background of the judiciary has been subjected to much research. In brief, the picture presented is one of a middle and upper class, middle aged, white, predominantly male judiciary dominated by people with a public school and Oxford or Cambridge University education. The Constitutional reform act 2005 established a judicial appointment commission, which has responsibility for the recruitment and selection of judges for the courts in England and Wales.

Defining the institution

The executive The executive may be defined as that branch of the states which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, Cabinet and other ministers, (how some ministers are drawn from the unelected House of Lords) for the most part, our elected members of parliament. In addition, the civil service, local authorities, police and armed forces, constitute the executive in particular terms. Legislature the Queen in Parliament is the sovereign lawmaking body within the United Kingdom formally expressed, Parliament comprises the Queen, House of Lords and the House of Commons. All bills must be passed by each house and receive Royal assent. Parliament is bicameral, that is to say there are two chambers, each exercise a legislated role - although not having equal powers - and each playing a part in ensuring the accountability of the government. By way of introducing, it should be noted that membership of the House of Lords is not secured by election and is accordingly not accountable in any direct sense to be electorate. The House of Commons is directly elected, and a partridge term is limited under the Parliament act 1911 to maximum of five years under the fixed term Parliament act 2011, each Parliament (with limited exceptions) lasts for five years. The House is made up of the governing party: the political parties which secures the highest number of seats at the election, and the opposition parties. The opposition parties comprise the remainder of that now 650 members of Parliament. The official Opposition is the party , which represents the second largest party in term of elected members. In principle, the role of the official opposition is to act as a government in waiting, ready at any time to take office should the government be forced out of office. The general election of 2010 produced an unusual result with no one political party having a sufficient majority of seats to form a government. A coalition government made up of the larger Conservative party and the Liberal Democrat party was formed, with the Labour party forming the Official Opposition. The judiciary the judiciary is that branch of the state which adjudicates upon conflict between state institutions, between state and individual, and between individuals. The delivery is independent of both Parliament and the executive. Judicial independence is of prime importance, both in relation to government, according to law and in protection of the rights and freedom of the citizens against the executive. As Blackstone observed in his Commentaries: '...in this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and from the executive power. It is apparent, however, that, was a high degree of judicial independence is secured under the constitution, there are several aspects of judicial functions which reveal an overlap between judiciary, Parliament and executive.

Historical development

The identification of the three elements of the constitution derives from Aristotle (384- 322 BC). In the politics, Aristotle proclaimed that: there are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the difference in constitution are bound to be corresponding to the difference between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element. The constitutional seeds of the doctrine were thus sown barley, reflecting the need for government, according to an under the law, and requirement encouraged by some degree of a separation of functions between institutions of the state. The constitutional historian FW Maitland praises the separation of power in England to the reign of Edward I (1272 - 1307): in Edwards days all become definite - there is the Parliament of the three estates, there is the king's council, there are the well-known courts of law. Visocunt Henry St John Bolingbrokes (1678 - 1751), in remarks on the history of England, advised the ideal separation of powers. Bolingbroke was concerned with the necessary balance of powers within a constitution, arguing that the protection of liberty and security within the state depended upon achieving and maintaining an equilibrium between the Crown, Parliament and the people. Addressing the respective powers of the King and Parliament, Bolingbroke observed that: 'Since this division of power, and these different privileges constitute and maintain our government, it follows that the confusion of the tends to destroy it. This proposition is therefore true; that is, in a constitution like cars, the safety of the whole depends on the balance of the parts'. Barons Montesquieu (1689 - 1755, living in England from 1729 - 31) stressed the importance of the independence of the judiciary in De l' Esprit des Lois (1748): when the legislative and executive powers are united in the same person, or in the same body of the magistrates, there can be no liberty... Again, there is no liberty if the power of judging is not separate from the legislative and executive. If it were joined with the legislated, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined executive powers, the judge might behave with the violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, where to exercise those free powers, that of enacting law, that of executing public affairs, and that of trying crimes of individual causes. Here is the clearest expression of the demand for a separation of functions. It has been remarked that Montesquieu observation of the English constitution works inaccurate at the time, representing more of a description of an idealised state than reality. Moreover, it should not be assumed that Montesquieu preferred arrangement of a pure separation of power is uncontroversial. Throughout history, there has been exhibited in tension between the doctrine of separation of power and the need for balanced government - an arrangement, depending more on checks and balances within the system (as emphasised by Bolingbroke) than on a formalistic separation of power. Sir Ivor Jennings has interpreted Montesquieu's words to mean not that the legislature and the executive should have no influence over the other, but rather that neither should exercise the power of the other. Sir William Blackstone, a disciple of Montesquieu, adopted and adapted Montesquieu strict doctrine, reworking his central idea to incorporate the theory of mixed government. While it was of central importance to Blackstone that, for example, the executive and the legislature should be sufficiently separate to avoid 'tyranny', he nevertheless viewed their total separation as potentially leading to dominance of the effective by the legislature. Thus, partial separation of powers is required to achieve a mixed and balance constitutional structure. John Locke, an English philosopher stated that: "... It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to also have the power to execute them".

The office of Lord Chancellor

The office of Lord Chancellor arise from the Norman conquest when the Kings secretary became known as the Royal 'Chancellor'. The first Chancellor is recorded in 1068. In the middle age, the primary role of the Chancellor was to preside over Parliament. From the 14th century, this function had been both parliamentary and judicial, in the later role presiding over the court of chancery until 1875. Prior to the Constitutional reform act 2005, the office of Lord Chancellor's spanned all three institutions of the state - the executive, the legislature and judiciary. The Lord Chancellor was a political appointed member of the candidate, the Speaker of the House of Lords and the head of the judiciary. Furthermore, as a senior judge the Lord Chancellor was entitled to participate in judicial proceedings, although by convention, he would not adjudicate in cases which involve the government or were overtly political in nature. As head of the judiciary, with wide ranging powers relating to the appointment of judges, the Lord Chancellor acted as the spokesperson for the judges and defended their independence from interference by the executive. However, whatever perceived advantage flowed from the close relationship between the executive and Lord Chancellor. These were outweighed by the criticism that the office of lord chancellor represented a major breach in the separation of power, and could not withstand the allegation that the office raised doubts about the independence of the judiciary. The constitutional reform act 2005, reformed the office of Lord Chancellor in a manner which establishes a clear separation of power between the executive, the legislature and judiciary. The office of Lord Chancellor is retained in name, but the power of the office are radically curtailed. The post is combined with that of secretary of state for justice. The officeholder must be 'qualified by experience'. This can be seen under section 2 of the Constitutional reform act 2005 'the Prime Minister may take into account any of these - (a) experience as a minister of the Crown; (b) experience as a member of either house of Parliament; (c) experience as a qualifying practitioner; (d) experience as a teacher of law in a university; (e) of experience that the Prime Minister considers relevant'. But need not be a lawyer, and the Lord Chancellor no longer exercises any judicial functions or act as a speaker of the House of Lords. Section 1 of the act makes explicit references to the law, stating that the act does not adversely affect that principle or the Lord Chancellor's existing role in protecting the rule of law. Section 3 imposes a statutory duty on the Lord Chancellor and other ministers of the Crown and those with responsibility for matters relating to the judiciary to uphold the continued independence of the judiciary.

The executive and legislature

The personnel of government Parliament provides the personnel of government. Ministers of the Crown, including the Prime Minister, must be members of either house of Parliament. By convention, the Prime Minister must be a member of the House of Commons. It is thus immediately apparent that the executive, far from being separated from the legislator, it drawn from within its ranks. It is for this reason that Walter Bagehot in English constitution denounced the theory of the separation power under the English constitution. For Bagehot, this feature of the constitution, however, far from being a dangerous diversions from an ideal separation power, had clear merits. To Bagehot, the close relationship between the executive and Parliament represents 'the efficient secret of English constitution' which: '... May be described as the close union, the nearly complete fusion, of the executive and legislature powers. No doubt by the traditional theory, as it exists in all the books, the goodness of our Constitution lies in the entire separation of the legislative and executive authorities, but in truth is merits consist in their single approximation. The connection link (between the executive and Parliament) is the Cabinet'. There are, however, opposing views. Lord Hailsham, Lord Chancellor in the 1979-87 Parliament, asserted that the current electoral process which, generally, but not invariably, returns a government with a large majority of seats in parliament, contributes to what he termed an 'elective dictatorship'that is to say, a situation in which the executive controls the legislature. While Bagehot these may have been 10 double at the time in which he wrote, it is nowadays to simplistic and inaccurate a description of the work of the constitution. Prima facie, this close union of executive and legislator would suggest that the potential for abuse against which Montesquieu Ward insists at the heart of the constitution. This would be so if it were to be demonstrated that the executive controls Parliament. Judgement on that matter must be suspended until the working of Parliament has been examined in detail. There exist, however, tenable grounds for such an argument, but these must be set against the extent to which procedural mechanisms and Parliament are avoided an actual or potential abuse of power by the sedative. The constitutional principle in title in this close union between executive and veg later, deriving from historical practice, is that of 'responsible government': that is to say that the powers of government are scrutinised adequately by a democratically elected parliament to whom every member of government is individually and collectively responsible. Statutory limits on memberships there exist statutory limits on the extent to which the executive can dominate Parliament. The House of Commons Disqualification act 1975 preserves the separation between the executive and legislature by providing that certain categories of people are disqualified from holding parliamentary office. Under section 2, holders of judicial office, civil servants, members of the armed forces and the police and members of Ford, legislature are debarred from office. The act also limits the number of government ministers in the House of Commons to 95 (section 2). Despite this limitation, 95 ministers, when considered together with their loyal parliament to private sector is, it sure that the government will generally enjoy the automatic support of some 120 Members of Parliament. Well, the government has been elected with a strong majority of seats as in 1983, when the Conservative party had a majority of 144, and in 1997, when the electorate returned a Labour government with a majority of 179 - it must be conceded that the potential for dominance exist. An evaluation of this matter depends upon the adequacy of parliamentary procedures. Political and procedural checks on government the government, it must be recognised, irrespective of the size of this majority of seats in parliament, is dependent upon Parliament for the continuance in office. The loss of vote of confidence on a matter of policy, central to the government program will cause the government to fall, as occurred in 1979 when the Labour Prime Minister, James Callagham, was forced to seek a dissolution of parliament and called a general election. Furthermore, parliamentary procedures are devised to secure adequate security for legislative proposal, and it cannot really be assumed that the government will always get its legislation through in the form which it envisaged. By way of example, in 1983-4, the police and criminal evidence bill was substantially amended following pressure from politicians of all parties, pressure groups, academic and lawyers. Furthermore, in 1986, the government - despite having a strong majority in parliament - was forced to abandon his plans for legislation to deregulate Sunday trading due to Parliamentary pressure. In 2012, the coalition government was forced to modify his plans for the reform of the House of Lords in light of opposition from conservative party MPs. The opposition. The role of the official opposition must also be considered. Her Majesty's loyal opposition is, constitutionally speaking, a 'government in waiting'. Not only is it the function of the opposition to question, challenge and oppose the government, but is also put forward alternative policies and solution to problems. In order to ensure that there is adequate opportunity for the opposition to fulfil its constitutional role, 20 days per session are set aside for debate on subject chosen by the opposition. Question times, debates and select communities question Time and debates in Parliament insured the accountability of government to Parliament. The administration of the state is scrutinised by a system of select committees in Parliament with wide powers of enquiry. The House of Lords in addition to check within the House of Commons, the House of Lords may cause government to modify or abandon proposed legislation. The House of Lords has the power to amend and delay non-money bills for approximately a year before the Bill has received Royal assent on the Parliament act 1911 and 1949. Rather than risk the delay of legislation, the government may prefer to compromise its proposal and except proposed amendments from the Lords. The electorate finally, the electorate, in addition to its role in a general election, can also express its displeasure with government policies during a parliamentary term at by-election and local government election. In the 1993 county council election, the government lost control of many of the councils which had been its traditional supporters - clear evidence that no government can afford to ignore the views of the people. Subsequent by-election confirmed the government's loss of electoral supports, as did the general election on May 1, 1997, when the Conservative government suffered a humiliating defeat. In 2011, the coalition government's plan to replace the simple majority's voting system with the alternative vote system was abandoned after the people delivered a decisive 'no' vote in a referendum. Dedicated legislation and the separation of power Delegated or secondary legislation raises important questions relating to the separation of power. Delegated legislation refers to laws, rules and relations, made by government departments, local authorities and other public bodies, under the authority of an act of Parliament: '... Every exercise of power to legislate conferred by or under an act of Parliament'. The principal justification for the delegation of such lawmaking powers is efficiency. By granting delegated powers, Parliament is freed from scrutinising every technical detail of a bill. Delegated power also enables ministers and others to 'fill in the details' after the parent act has been passed. AV Dicey approved of delegated power on this basis. Delegated power has, however, being questioned. In 1929, Chief Justice Herwart criticised delegated legislation as being an abuse of power. An interdepartmental committee of enquiry on ministers powers exonerated prisoners from this charge and defended both the necessity and desirability desirability if delegated legislation. In any Parliamentary year, some 40 to 50 acts of parliament will be passed. The volume of delegated legislation, however, may amount to some 3000 statutory instruments per year. While general bills, public and private are subject to full Parliamentary scrutiny. The implication of delegated legislation in constitutional terms is that a legislated function is being exercised by the executive and not Parliament. The delegation of lawmaking power is a necessity given the heavy legislative program and the modern complexity of legal regulations. Provided that Parliamentary scrutiny is adequate, and that the courts are vigilant and effective in ensuring that the delegated powers are exercised consistently with the law - intra vires - it may be concluded that this ostensible breach of the separation power is unavoidable, although whether it is subject to adequate scrutiny and control remains questionable. In addition to the delegation of powers to make secondary legislation, act of Parliament may on occasion confer on ministers the power to amend primary legislation.

The Contemporary Doctrine

The separation of power doctrine does not insist that there should be free institution of government, each operating in isolation from each other. Indeed, such an arrangement would be unworkable, particularly under a constitution dominated by the sovereignty of Parliament. Under such an arrangement, it is essential that there be a sufficient interplay between each institution of the state. For example, it is for the executive, for the most part, to propose legislation for Parliament's approval. Once passed into law, Acts of Parliament are upheld by the judiciary. A complete separation of the three institutions could result in legal and constitutional deadlock. Rather than a pure separation of powers, the concept insist that the primary functions of the state should be allocated. Clearly, and that there should be checks to ensure that no institution encroaches significantly upon the functions of the other. If hypothetical constitutional arrangement within a state, are considered, a range of possibilities exists: - Absolute power residing in one person or body exercising executive, legislative and judicial powers: no separation of powers; - power being diffused between three separate bodies exercising separate functions with no overlaps in functions or personnel: pure separation of powers; - powers and personnel being largely - but not totally - separated with checks and balances in the system to prevent abuse: mixed government and weak separation of powers.

Separation of power

The separation of power, together with the rule of law and parliament sovereignty, runs like a thread throughout the constitution of the United Kingdom. Is a Dr Green which is a fundamental to the organisation of a state-and to the concept of constitutionalism-in so far as it describes the appropriate allocation of powers, and the limits of those powers, to differing institution. The concept has played a major role in the formation of the constitution. The extent to which powers can be, and should be separated and distinct was a central feature in formulating, for example, both the American and French revolutionary constitutions. In any state, three essential bodies exist: the executive, the legislature and the judiciary. It is the relationship between these bodies which must be evaluated against the backcloth of the principle. The essence of the doctrine is that there should be, ideally, a clear demarcation of personnel and function between the legislature, executive and judiciary in order that non-should have excessive power and that there should be in place a system of checks and balances between the institutions. However, there are significant departures from the pure doctrine under the United Kingdom's constitution and it must be conceded that, while the doctrine is accorded respect, it is by no means absolute. In order to evaluate the extent to which the separation of powers applies-and the many exceptions to the pure doctrine-is necessary firstly to define the major institutions of the state and evaluate the relationship between them. In order to do so. This is the following relationships will be examined: - The executive and the legislature; - the legislature and the judiciary - the executive and the judiciary

Executive and judiciary

With regards to the relationship between the executive and the judiciary, several matters having implications for the separation power requires examination: the attitude of the courts in matters entailing the exercise of the Royal prerogative; parliamentary privilege; judicial review; the role of the judge in the non-judicial functions; and the role of the law officer of the Crown.The Royal prerogative the Royal prerogative has significant implications for the separation of power. Being the residue of monarchical power, the prerogative is part of the common law and thus amendable to the jurisdiction of the courts. Today, the vast majority of prerogative powers are exercised by the government in the name of the Crown. The substance of many probative powers is political, entailing matters of policy of which the judges are not competent to decide. In other words, matters which, if broad on by the judges in a manner inconsistent with the interpretation of the executive, would place the judges in a sensitive constitutional position and leave them open to accusation of a violation of the separation of power. That is not to suggest, however, that the courts have no role to play with respects to the Royal prerogative. The traditional role of the courses rule on the existence and scope of the prerogative, but-having defined its existence and scope-to decide thereafter to rule on the exercise of the power. However, in - Council of civil service union v Minister of State for civil service (1985) (the EC HQ case), the House of Lords made clear that the courts have jurisdiction to review The exercise of executive power, irrespective of whether the source of power is statutory or under the prerogative. Having seemingly extended the jurisdiction of the courts in relation to the property of, the House of Lords, nevertheless, proceeded to ruled that there exists a wide range of 'nonjusticiable' matters which should be decided by the executive rather than the courts: a clear expression of separation power. Law officers of the Crown law officers of the Crown-.Attorney General and the solicitor general-our members of the government. The Attorney general may also be a member of Cabinet.The Attorney general is bound by conventions which serve to limit the the overlap in functions. Thus, where his consent to prosecution is required, by convention the Attorney General must avoid party political consideration, and may not take orders from government. This is a particularly delicate matter when essentially political prosecution are being contemplated. The law officer are advisers to government and its ministers, by convention, this advice must never be disclosed. In 1986, this convention was breached when Leon Brittan, then Secretary of State for trade and industry, revealed advice given on the Westland helicopter rescue plan. To reason matters have renewed concern over the office of Attorney General. The first related to the legal advice given to the government under the guarantee of the war in Iraq, and allegation that the Attorney general intitial advice differed from that which was eventually disclosed to Parliament in 2003, and-following controversy and leaks to the media-ultimately published in 2005. The second issue relates to the legality of the decision by the director of serious fraud office (for whom the Attorney general had constitutional responsibility) to discontinue a criminal investigation into allegations of corrupt payment and legibly made by BAE system Plc. One aspect of the investigation concerned a valuable arms contract between the British government and the kingdom of Saudi Arabia, for which BAE was the main contractor. The director announced that the investigation would be discontinued in light of recitation may to the Attorney General and directed concerning the need to safeguard national and international security. In Parliament the Attorney General stated that while there was a strong public interest in security of the United Kingdom, which would be harmed by the threat of the Saudi Arabian government that it would withdrew from the existing bilateral counterterrorism cooperation arrangements with the United Kingdom, withdrew co-operation from the United Kingdom in relation to its strategic objective in the Middle East and end negotiations for the procurement of Typhoon aircraft's. - R (Corner House Research and Other) v Director of the Serious of Fraud Office (2008): the appellate committee of the House of Lords ruled that the decision of the director was lawful. Lord Bingham of Cornhill referred to director's judgement that 'that public interest in saving British lives outweighed the public interest in pursuing BAE to conviction'. That was a decision that the Attorney general was lawfully entitled to make, and his decision 'involves no affront to the rule of law, to which the principles of judicial review given effect'. The office of Attorney general, as the Iraq war and BAE systems investigation illustrates, give rise to allegation that his legal and political role are insufficiently separated. Judicial review judicial review of admin actions is designed to keep those persons and public bodies with delegated power within the scope of the power conferred upon them by parliament: the doctrine of intra vires. Thus, if a Minister of the Crown or a local authority or other public body exceed the power granted, the court will nullify the decision taken require that the decision maker reach a decision according to the correct procedure. Judicial review is concerned with the process by which decisions are made, not with the merits of the decision itself, nor with the merits of the legal rules which are being applied by the Administrator. From this perspective, it may be said that the judges are upholding the world Parliament in controlling the exercise of power delegated by it to subordinate bodies. The scope of judicial review has increased considerably-and the rule of law, enhanced-since the coming into force of the human rights act 1998. The human rights act, section 6, makes it unlawful for any public body-excluding Parliament, but including the cause-to act in a way which is incompatible with the Convention rights protected under the act. A person who claimed that a public authority has acted or proposes to act in a manner incompatible with convention right may bring proceedings-including an application for judicial review-against our body. Judges as fact finders it has become increasingly common for the executive to appoint judges as chairman of the tribunal's of enquiry. That this should be so is unsurprising. Judges are enquired by training and experience to review evidence with impartiality and rigour and to present findings in a logical manner. Inquiries have been conducted by judges into such diverse matters as state secretary; civil unrest and terrorism; football club disasters; BSE in cattle; arms to Iraq; and the 2003 enquiry into the circle stance surrounding the death of the government weapons inspector Dr David Kelly. Many of these inquiries involves sensitive political issue. As a result, it is inevitable that judges will attract criticism from one quarter or another. There exists the potential for charges of political bias in the report, or that judges has avoided the issue and effected a 'white wash', or that the inquiry has not been conducted properly. To place judges in the position where criticism is likely to ensue is to create the possibility that their independence and impartiality will be damaged. The Inquiries Act 2005 goes some way to meet such concerns. The act provides that a person may establish an enquiry into events which 'have caused' or 'are capable of causing public concern'. Section 10 of the 2005 act provides that where a minister proposes to appoint a judge. The biggest must consult , as appropriate, the senior Lord of appeal in ordinary (now justice of the Supreme Court), Lord Chief Justice of England and Wales, Lord President of the Court of session, Lord Chief Justice of Northern Ireland.