Seperation of Powers

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HILAIRE BARNETT
SEPERATION OF POWERS
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Introduction
* The separation of powers is a doctrine which is fundamental to the organization of a state – and to the concept of constitutionalism – in so far as it prescribes the appropriate allocation of powers, and the limits of those powers, to differing institutions * Three essential bodies exist: the executive, the legislature and the judiciary * The essence of the doctrine is that there should be a clear demarcation of personnel and functions between the legislature, executive and judiciary in order that none should have excessive power and that there should be in place a system of checks and balances between the institutions…there will be significant departures from the doctrine under the UK constitution

Historical Developments
* The identification of the three elements of the constitution derives from Aristotle there are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; the three elements are the deliberative, the officials and the judicial element. * Montesquieu stressed the importance of the independence of the judiciary when the legislative and executive powers are united, there can be no liberty. There will be no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control. * It has been remarked that Montesquieu’s observations on the English constitution were inaccurate at the time, representing more a description of an idealized state than reality Vile

Contemporary Doctrine
* The doctrine would be unworkable under a constitution dominated by the sovereignty of parliament * A complete separation of the three institutions could result in legal and constitutional deadlock. * If hypothetical constitutional arrangements within a state are considered, a range of possibilities exists; * Absolute power residing in one person or body exercising executive, legislative and judicial powers * Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel * Powers and personnel being largely separated with checks and balances in the system to prevent abuse * It is to this third category that the constitution of the UIK most clearly subscribes

Defining the institutions
THE EXECUTIVE
* The executive may be defined as that branch of the state which formulates policy and is responsible for its execution * The Crown is the head of the executive

THE LEGISLATURE
* The Queen in Parliament is the sovereign law making body within the UK * Membership of the HOL is not secured by election and is accordingly not accountable in any direct sense to the electorate * The House of Commons is directly elected and a parliamentary term is limited under the Parliament Act 1911 to a maximum of years * The House is made up of the majority party

* Head of the party will be invited by the Queen to take office as Prime Minister * 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 JUDICIARY
* The judiciary is that branch of the state which adjudicates upon conflicts between state institutions between state and individual, and between individuals * Judiciary is independent of both Parliament and the executive * Blackstone observed …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… APPOINTMENT

* The Lord Chief Justice, master of the Rolls, President of the Family Division, Vice Chancellor, Lord Justices of Appeal and Justices of the Supreme Court are appointed by the Queen under section 10 (1) and (2) of the Supreme Court Act 1981...
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