Separation Of Power In The

Separation of power concept historically goes back to the times of Aristotle who in his written work mentioned that each and every constitution contains three basic elements including deliberative, officials and the last one is the judicial. Hence these three earlier mentioned elements define the concept of separation of powers in its early stages and in present times, and now it is modified as the legislature, executive and judiciary in accordance with which the government carried out its functions.

Now here our matter of concern is whether UK have a separation of power concept in its constitution or not. The UK does not have a written constitute. To understand this here we will look in to the wordings of Parpworth who stated that ‘ a separation of power concept has never been a paramount and important feature of UK constitution’. In practical ways, it is examined and observed that the main powers most of the time is practiced by those who already hold other positions as well with them. This shows that there is no hard and fast rule regarding separation concept. This has been explained by Saunders by stating that all those constitutional systems that is expressed to be based on the doctrine of separation of powers in its real meanings gives in a deliberate, not incidental way a concise and implied ray of systems of checks and balance where under its supervision every constitutional unit effect other, hence moves on with the same encroachment. The main reason behind all these is the fact that if these checks and balance power remain extinct in practice then to run affairs of government would ultimately rendered uncertain.

Let’s go with the recent development relevant to the Lord Chancellor status. Where it’s been citied in an obvious manner that separation of powers has in no way a place in UK. In historic background, Lord Chancellor used to hold a position unique in a way that exercised three kinds of powers having the membership of all the three branches of the government. Now after Human Rights Act 1998 and the precedent of McGonnell v UK (2001), alterations were declared with respect to the Lord Chancellor position in UK. Where the Court decision effected Lord Chancellor position in a way that before the enactment and judgement Lord Chancellor acted and affected other pillars as well.

From the abovementioned Act and court decision along with many other reforms Act, shows that separation of powers doctrine played an important role and after these developments, in some way it is recognized as well. But still power overlapping between different limbs is clear and in existence. Now it is visibly observed that despite several impliedly moves made to establish a distinction between the powers of different units of government, there has been still overlapping in legislative, judicial branch and the executive, whereas checks and balance system exist there. Overlapping includes keeping eyes on each other’s. Like Prime Minister have the responsibility to advise the queen if she wants to dissolve the Parliament. Queen can deny the refusal advice. Ministers individually are accountable in front of Parliament floor. It can be said that House of Lords has either complete or profoundly partial look after the executive authorities functions. For example judicial nominations for upper level judiciary are made by Her majesty receiving recommendations from the Lord Chancellor. While for the other lower level judicial the appointments are usually directly made by Lord Chancellor itself. However senior member of judiciary shall be made by the council of Judges while the other lay and lower level member shall be given selection by the concerned panel comprised of four persons.

The Human Rights Act of 1998, draw a line between the important three basic functioning units of government needed it to be scrutinized by the courts, all acts of these three branches in line with the provisions laid down in ECHR. But the parliament has got the authority to override the rights enunciated in Convention using an obvious language. Apparently the executive and legislative branch merger with each other with a prime minister with a conferred full powers emerged from the leading party in the parliament with a simple and safe majority, impelled the experts and theorist to come to the ultimate conclusion that the doctrine of separation of powers is not applicable to the UK. However the above mentioned several developments, negated this theory in terms that many enactments and moves had been made that whether impliedly or expressly draw a distinction between the powers of the concerned branches and limit to interfere or poke nose in other power exercising range. So we can say that there exist a concept of separation of powers in UK but it is not clearly in a visible and clear way codified like that of the UK Constitution itself. But it doesn’t mean that there is no separation of powers doctrine. It does exist but with some ambiguities in it.