A comparison of our separation powers with modern britain

Of the theories of government which have attempted to provide a solution to this dilemma, the doctrine of the separation of powers has, in modern times, been the most significant, both intellectually and in terms of its influence upon institutional structures.

This is important in cases of judicial review and other judicial methods of preventing government abuse of power. It took a century, from the English Civil War until the mid eighteenth century, for a threefold division to emerge fully and to take over from the earlier twofold division.

Parliament has a legally unchallengeable right to make whatever laws it thinks right. Edition: current; Page: [28] However, Professor Plucknett points out that as early as the first half of the fourteenth century the English judges frankly faced the fact that law was being made by statute, and that their decisions created generally applicable rules.

Separation of powers uk revision

Edition: current; Page: [6] The desire for a unified system of government, whether to achieve reform or for purposes of positive State action, led to a rediscovery of the role of discretion and prerogative in government. If absolute power were in the hands of the people, or their representatives, then it could be stripped of its associations with arbitrary government and formed into an instrument of democratic power. Nothing more is needed. It was suggested that it was not possible to deduce from a general theory of politics specific unequivocal solutions to particular problems, and that therefore it was probably more fruitful to adopt a pragmatic approach to these individual problems, rather than to attempt wide-ranging generalizations. It was by no means a value-free or neutral theory of politics, but it did claim to be based upon a demonstrable empirical proof. The now discarded theory of mixed government had at least had a social basis for its view of a desirable governmental system, whereas the separation of powers had, quite deliberately, been formulated as a constitutional theory devoid of class bias. Marsilius in fact provided a transition, from the classification of the parts of the State by a mere echoing of Aristotle, to a classification of government functions which forms the basis of modern thought, and which remained essentially intact until the time of Montesquieu. Rather it was a way of looking at government which encompassed the whole range of governmental acts, whilst recognizing that there were differing agencies involved, differing tasks to be performed, and differing procedures to be employed. Nevertheless, the fundamental conception of the government as an instrument for distributing justice persisted, for this was in fact still the major aspect of government from the point of view of the citizens. There is no conspiracy of power-hungry men attempting to usurp our governmental systems, and the reaction that is called for from us is not the hysterical denunciation of tyranny. A rather more remarkable attempt to refashion the pattern of thought about the functions of government was made in a work dated , entitled The Royalists Defence, and attributed to Charles Dallison, Recorder of Lincoln, and a moderate royalist. The basis for the idea of a division of functions existed in medieval thought, Edition: current; Page: [29] for the idea of function played an important part in the papal theory of the division of labour among the offices of the Church, 20 and the foundation for a twofold division of government function was to be found in the division of royal power into gubernaculum and juridictio, the powers of government and jurisdiction. That it could equally well become the instrument of another class, and of a different philosophy of government, was a possibility that, if they acknowledged it, did not prevent them from attacking the earlier ideas of the division and limitation of power. Nevertheless, the close relationship between the description and explanation of political institutions and of the justification of the values they reflect is an inescapable one.

A Select Committee report suggested: [17] The balance of advantage between Parliament and Government is so weighted in favour of Government that it is inimical to the proper working of our parliamentary democracy. There are restrictions on the criticism of judges in parliament.

separation of powers uk definition

That it could equally well become the instrument of another class, and of a different philosophy of government, was a possibility that, if they acknowledged it, did not prevent them from attacking the earlier ideas of the division and limitation of power.

How many people are to be allowed to be members of more than one branch, who will they be, and what will be their function and authority?

Overlaps in the separation of powers uk

The general context of political development during the nineteenth and early twentieth centuries provided, therefore, the framework for a sharp reappraisal of the doctrine of the separation of powers, but there were other equally important, and related, intellectual challenges to the doctrine. A rather more remarkable attempt to refashion the pattern of thought about the functions of government was made in a work dated , entitled The Royalists Defence, and attributed to Charles Dallison, Recorder of Lincoln, and a moderate royalist. That is to say that some people may be allowed to be members of more than one branch of the government, although a complete identity of personnel in the various branches will be forbidden. This is the most dramatic characteristic of the pure doctrine, and is often in a loose way equated with the separation of powers. The first element of the doctrine is the assertion of a division of the agencies of government into three categories: the legislature, the executive, and Edition: current; Page: [16] the judiciary. The final element in the doctrine is the idea that if the recommendations with regard to agencies, functions, and persons are followed then each branch of the government will act as a check to the exercise of arbitrary power by the others, and that each branch, because it is restricted to the exercise of its own function will be unable to exercise an undue control or influence over the others. In spite of the attacks upon the form, and upon the content, of the doctrine there is a sense in which the problems the theorists of the separation of powers set out to solve are more than ever critical today. The participation of Parliament in the promulgation of law was seen as an aspect of this judicial function of government; the High Court of Parliament advised the King upon the issues which came before him for decision, and declared the law as a court declares it, but in a more formal way, and usually, but not always, in general terms. The executive carries on the administration of the country in accordance with the powers conferred on it by law. To substantiate this view it will be necessary to attempt to define and use terms in a more precise way than has been generally the case in the past, and to review the evolution and history of the doctrine, important enough in itself, in order to understand its significance in the past and its relevance today. If the franchise could be restricted to those with a stake in the community then the idea of an unlimited, indivisible sovereign power became for the liberal individualist not a threat, but a safeguard.

The self-interest of political actors, under this theory, bridges the separate sections of government, drawing upon the approach of the Committee on Standards in Public Life which applies the same rules to different organs, although heir approach to judges is separate.

To follow the course of this history should be of interest in itself, but it is also an essential step towards the understanding of the ideas of the past which have helped to shape our own, and towards the reformulation of these ideas into a more coherent theoretical approach to the nature of modern constitutional government.

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Separation of powers in the United Kingdom