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There Is No Real Seperation Of Powers In The UK Constitution Nor Does There Need To Be.' Discuss
What are the separated powers?
Executive = the administrative branch of government; it makes laws by way of delegated legislation and drafts bills.
Legislature = the law making branch of government
Judiciary = the law enforcing branch of government
What can you say about the separation of powers?
The overlap of powers allows Parliament to make any change it wishes by Act of Parliament and helps to insure against arbitrary exercise of power.
There is almost complete separation of powers in the USA where governmental intransigence in controversial matters is a much bigger problem than it is here (here the judges can indulge in greater law making activities if necessary).
There is little executive-legislature separation in the UK but much legislative-executive / judiciary separation.
The concept of the separation of powers was first discussed by Charles Montesquieu (after observing the British system).
To what extent do we have imperfect separation of powers?
The executive controls, and makes the legislature by creating peers (subject to the approval of the Queen), whips, dissolution (subject to the approval of the Queen, but note that permanent prorogation possible without her permission), prorogation (in theory this is under the Royal Prerogative but the Queen's permission is not necessary), controlling the timetable.
Part of the legislature (the government ministers) form the executive. The legislature controls the judiciary by removing senior judges (in the name of the Lord Chancellor). The executive (the Lord Chancellor) controls the judiciary by removing (or perhaps worse not removing) junior judges. The judiciary do not have their salary voted on by Parliament The judiciary reviews the activities of the executive. Paid judges cannot be in the Commons.
The executive (the Lord Chancellor (with the Prime Minister in appointing law lords) ) appoints judges. The executive makes treaties, which have a degree of legislative influence (though not true legislative force). The judiciary (as Coroners or magistrates (licensing, etc. ) ) undertake executive activities. The executive (the Lord Chancellor) sits as a judge. The executive (the Lord Chancellor) sits as legislator.
The executive (the Home Secretary) refers cases to the Court of Appeal and can grant Royal Prerogative of Mercy. The executive (the Home Secretary) sets sentences of detention during her Majesty's pleasure. The monarch is the fountain of justice and is in theory present in court, has prosecutions in his name, appoints judges and peers (who thus form part of the legislature) she also has grants all laws by giving her royal assent. Royal Proclamations such as are made when a new territory is conquered / taken over to set up a new system of law where none existed are a more real legislative power as her similar powers to make law by Order in Council. As part of the executive she heads the armed forces and appoints and dismisses ministers (but only the Prime Minister in person). In times of war the Crown may requisition ships (as in the Falklands) and enter private land to repel invasion.
She 'makes' all foreign treaties. Parliament is the 'High Court of Parliament' The Speaker of the Commons who has theoretical legislative powers (by convention only exercised where there is a tie, and then in favour of the status quo) is part of the Privy Council and as such has theoretical judicial powers. The executive (through the whip system) controls the legislature. Tribunals are created by acts of Parliament and have both judicial and executive / administrative powers. The judiciary makes laws. The Queen is effectively a part of all three branches of government - she is the fountain of justice and she appoints ministers and makes laws (although not in person anymore).
The Attorney General (or the Solicitor General) does no lle prose qui and advises the government on legal matters - this is a member of the Executive interfering with the judiciary; it is not a breach, as such, of the separation of Powers The Director of Public Prosecutions can take over private prosecutions, which is a quasi-judicial power. Local Government has legislative and executive powers, which are created by the executive in Parliament by Royal Charters. The legislature grants the executive legislative powers by delegated legislation. The executive makes laws (or rather gives assent to them) in Europe (but see below) The executive appoint bishops, who have legislative powers.
The Parliamentary Control of the Executive Bill The Parliamentary Control of the Executive Bill will make important changes to the present separation of powers. It is a Bill that demonstrates that the so-called 'Royal' Prerogatives are, in reality, no such thing; Parliament being free to make them into parliamentary prerogatives. The Bill was formerly called the Crown Prerogatives (Parliamentary Control) Bill, and its long title although not forming part of the new Bill is perhaps worth quoting: "Whereas Crown prerogatives go back to the middle ages through periods of history extending well before and long after the universal adult suffrage was introduced and have no democratic legitimacy; And whereas these Crown prerogatives are, by long-established custom and practice, now almost all exercised solely by the Prime Minister without any legal or constitutional requirement for the House of Commons to be informed... ." "And whereas these same Crown prerogatives are used by Ministers of the Crown in the European Union to give their assent to European legislation which has legal effect in the United Kingdom and may supersede statutes passed by the United Kingdom Parliament, which are in conflict with it; And whereas the Crown prerogative of making war, without the prior consent of Parliament, can endanger the peoples of these islands without the prior consent of their representatives in the House of Commons; And whereas the powers of patronage vested in the Crown also allow the Prime Minister of the day to appoint archbishops and bishops, judges, peers, Ministers...
and make many other important public appointments... And whereas the same powers, exercised in the form of advice to the Crown, Can [sic] secure the dissolution of Parliament before the end of its statutory life." The Control of the Executive Bill requires many of the prerogatives to be made subject to the consent of Parliament.
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