SEPARATION OF POWERS Introduction: * The doctrine of SOPs, together with the ROL and parliamentary sovereignty runs like a thread throughout the constitution of the UK. * The doctrine can be traced back to Aristotle i.e., in his work 'The Politics' where he proclaimed that: “There are three elements in each constitution in respect of which lawgiver must look at what is advantageous to it: if these are well arranged the constitution is bound to be well arranged...” * John Lock developed the doctrine further in the 17th century in his work titled 'Second Treatise of Civil Govt'. He wrote: The three organs of the state must not get into one hand...It may be too great a temptation to human frailty...” * Baron de Montesquieu further developed the doctrine in his work 'The Spirit of Laws'. He wrote: “All would be lost if the same man or the same ruling body...were to exercise these three powers...”

SEPARATION OF POWERS Meaning of SOPs: (a) Strict sense: “There should be, ideally, a clear demarcation in function between the legislature, the executive and the 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”. (b) Liberal sense: It would mean that let there be overlaps in function between the legislature, the executive and the judiciary but on condition that there should be in place a system of checks and balances between the institutions.

SEPARATION OF POWERS Whether the doctrine is practised in the UK * The doctrine is said to exist in the UK but not in its pure sense. The doctrine in the UK has seen significant departures from the pure concept. * The doctrine in the UK is argued to be essential towards the idea of 'constitutionalism'. Note: The UK decided to take the contemporary stand/view. Pure SOPs would be unworkable, particularly under a constitution by the sovereignty of Parliament.

SEPARATION OF POWERS The three organs of the State: Executive organ: It comprises the Crown and the govt, including the PM & Cabinet Ministers. The role of the executive is to formulate & implement govt policy across all governmental activities. The elected govt of the day is accountable to Parliament. Legislative organ: It comprises of the Crown, the elected HOC & the unelected HOL. The main function of the legislature is to make law. The govt proposes legislation only Parliament may enact laws. Judicial organ: It includes all the judges in the ct of law, and also those who hold judicial office in tribunals, and the lay magistrates who staff the magistrates' cts. The main function of the judiciary is interpret the law passed by the legislative organ. SEPARATION OF POWERS

SEPARATION OF POWERS Whether there are overlaps within the three organs of the State: Overlaps exist within the three organs of the State in three different situations: * Overlaps as to membership; * Overlaps as to functions; & * Overlaps as to powers.

SEPARATION OF POWERS Overlaps between the Legislature and the Judiciary: (a) Membership: * The two organs do not overlap significantly i.e., judicial officers are disqualified from being members of the HOC. (See the House of Commons Disqualification Act 1975) * The Queen is part of both organs i.e., Her Majesty is part of the legislature by virtue of the requirement of Royal Assent to a Bill before it becomes an Act of Parliament. Also, Her Majesty is part of the judiciary i.e., the judiciary belongs to the Crown. * The LC is part of both organs i.e. he/she is part of the legislature by virtue of being the Speaker of the HOL. He/she is also part of the judiciary by virtue of being the head of the judiciary. * The Law Lords are part of the HOL (legislature)- See also the position of the lay peers.

SEPARATION OF POWERS Overlaps between the Legislature and the Judiciary: (Continuation) (b) Functions and Powers * The legislature is viewed as performing the function of the judiciary e.g. Parliament has the sovereign power to regulate its own composition and procedure. (Parliament in parliamentary privilege and contempt of parliament cases makes judicial decisions). * The issue or question of whether judges make law through the doctrine of judicial precedent or through interpretation of statutes. If yes, then that would be construed as violating the doctrine of SOPs. (See the cases of National Provincial Bank v Ainsworth; R v R; & Shaw v DPP) Checks & Balances: * The Queen must assent to Bills passed by the Commons & Lords. (She is merely a rubber stamp- Her 'roles' are ceremonial and seen as a symbol of unity and fountain of justice).

SEPARATION OF POWERS Overlaps between the Legislature and the Judiciary: (Continuation) (b) Functions and Powers * The legislature is viewed as performing the function of the judiciary e.g. Parliament has the sovereign power to regulate its own composition and procedure. (Parliament in parliamentary privilege and contempt of parliament cases makes judicial decisions). * The issue or question of whether judges make law through the doctrine of judicial precedent or through interpretation of statutes. If yes, then that would be construed as violating the doctrine of SOPs. (See the cases of National Provincial Bank v Ainsworth; R v R; & Shaw v DPP) Checks & Balances: * The Queen must assent to Bills passed by the Commons & Lords. (She is merely a rubber stamp- Her 'roles' are ceremonial and seen as a symbol of unity and fountain of justice).

SEPARATION OF POWERS Overlaps between the Legislature and the Judiciary: (Continuation) Checks & Balances: * The LC will not participate in judicial proceedings which involve matters of govt policy or which might be politically sensitive. * The Law Lords do not take part in politically contentious debates in the HOL. And the lay peers do not participate with the Law Lords when hearing appeals. * MPs will not criticise judicial decisions where proceedings are before the ct, or imminent issues, MPs are barred from raising the issues in debate. * Judges have discretion when performing the task of interpreting and applying those less perfect legislation though the concept of parliamentary sovereignty prevails. (See the case of Duport Steels Ltd (1980), Rv R etc)

SEPARATION OF POWERS Overlaps between the Legislature and the Judiciary: (Continuation) Checks & Balances: * The effect of the ECA 1972 on the role of the judges and the doctrine of Parliamentary sovereignty. The ECA 1972 empowers the UK Cts to interpret UK legislation in line with EU Law. * The effect of the HRA 1998 on the relationship between the legislature and the judiciary. Under the Act, higher cts are empowered to declare a primary and a secondary legislation incompatible with Convention rights. Are the checks and balances effective? (The answer seems to be no. This is due to the legal sovereignty of Parliament. But, this is in theory as opposed to practice.

SEPARATION OF POWERS Overlaps between the Executive and the Judiciary: (a) Membership * The Queen is part of both organs i.e Her Majesty is part of the executive organ by virtue of being the head of the state. She is also part of the judiciary by virtue of the judiciary belonging to her. * The LC is part of both organs i.e., he/she is part of the executive organ by virtue of holding a ministerial post. He is also part of the judiciary by virtue of being the head of the judiciary. * The AG is part of the executive organ (may hold a ministerial post) and as well as part of the judiciary by virtue of being the sole legal advisor to the govt. (b) Functions & Powers * The executive is said to be performing the function of the judiciary i.e., the exercise of 'royal pardon' by the Home Secretary. SEPARATION OF POWERS

SEPARATION OF POWERS Overlaps between the Executive and the Judiciary: (Continuation) (b) Functions and Powers * The AG is also viewed as peforming the function of the judiciary i.e., in exercising the discretion of whether to prosecute or not regarding criminal matters * Administrative tribunals, over which the executive exercises some control, make judicial decisions. * The judiciary also is viewed as performing the function of the executive i.e., through review of prerogative powers (see the case of GCHQ) Checks & Balances: * The Queen does not play an active role in both organs other being viewed as a 'symbol of unity'- (Her Majesty is a mere 'rubber stamp'). See also the operation of conventions on the exercise of royal prerogatives that belongs to the Crown.

SEPARATION OF POWERS Overlaps between the Executive and the Judiciary: (Continuation) Checks & Balances: * The LC is governed by conventions i.e., not expected to act impartial. * Where consent for prosecution is required, by convention the AG must avoid party political considerations, and may not take orders from govt. Also, being part of the legislature, the parliamentary procedures like question time; debates; and select committees will be used as a check and balance on the AG's office. * The operation of the concept of JR (see the case of GCHQ). The concept helps keep those persons & bodies with delegated powers to act within the scope of power conferred by Parliament. * The effect of the HRA 1998 & also the ECA 1972. * The effect of the Settlement Act 1700.

SEPARATION OF POWERS Overlaps between the Executive and the Legislature: (a) Membership * The Queen belongs to both organs of the State. The Queen is the head of the State. The Queen is also part of the legislature by virtue of the requirement of Royal Assent to a Bill. * The PM and his Cabinet, who form part of the executive are by convention, members of one of the Houses. * The LC is part of both organs of the State. (b) Functions and Powers * The executive is said to be performing the function of the legislature with respect to delegated legislation. * The legislature is said to be performing the function of the executive through the parliamentary procedures like question time, debates, and select committees.

SEPARATION OF POWERS Overlaps between the Executive and the Legislature: (Continuation) Checks & Balances: * The Queen does not play an active role in both organs other being viewed as a 'symbol of unity'- (Her Majesty is a mere 'rubber stamp'). * Parliament has control over the working of the executive e.g. Through parliamentary such as question time, debates and select committees, the legislature is in a position to scrutinise the executive. * Parliament may oust a govt through a vote of no confidence cast against the govt of the day for example ousting of the minority govt of Mr. James Callaghan in March 1979. * When acting as Speaker of the HOL the LC sits on the Woolsak; when acting as a spokesman on behalf of the govt the LC moves from the Woolsak to a different position. * The efect of the HRA 1998 (see the provision of sec 19 of the Act).

SEPARATION OF POWERS Conclusion: UK with its an unwritten constitution gives the impression that the doctrine of separation of powers is not practised in its true sense, which is true. However, there should be no total denial that the doctrine does not exist at all. This is due to the fact that its importance has been recognised and it has worked well in different but equally effective way and its objectives have been served. Probably what is needed is to make sure that the checks and balances in place are effective enough to prevent abuse of power.