SEPERATION OF POWERS AND EXECUTIVE FOR PUBLIC LAW

Seperation of powers and Executive for public law

Seperation of powers and Executive for public law

The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. It ensures a diffusion rather than a concentration of power within the state. Under the uncodified, largely unwritten British constitution there is no strict separation of powers. Instead, while some separation of powers exists, it is more accurate to speak of a system of checks and balances which ensures that powers are not abused. The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens. The concept itself is of great antiquity and can be attributed to Aristotle (384-322 BC); however, the clearest exposition of the doctrine can be found in the French writer Charles- Louis de Montesquieu's De l'esprit des lois (1748) .

In essence, Montesquieu states that the three organs of government - the executive, legislature and judiciary - should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true 'separation of powers'. Under a written constitution, the powers allocated to various institutions will be clearly defined. In the UK - in the absence of such a document - the issue that requires evaluation is the manner in which and the extent to which differing functions are kept separate. For the purpose of analysis, the subject may be further broken down by considering the extent to which the executive and legislature, executive and judiciary, and judiciary and legislature overlap and interact. It should be noted that even under a written constitution a complete separation of powers is not possible, and that without some degree of interaction between the institutions there would be constitutional deadlock.

The executive

The executive comprises the Crown and the government, including the Prime Minister and Cabinet ministers. Ancillary to Her Majesty's Government is the civil service which runs the administration of the state, and the armed forces and the police which uphold executive power. The role of the executive is to formulate and implement government policy across all governmental activities. The elected government of the day is accountable to Parliament, which has the ultimate power to dismiss a government and force a general election through which the people will decide on who will run the next government. Members of government are primarily elected Members of Parliament who sit in the House of Commons, although a number of government ministers also sit in the House of Lords. In order to prevent the executive dominating Parliament there are limits imposed on the number of salaried ministers who sit in the Commons under the House of Commons (Disqualification) Act 1975.

Parliament

Parliament comprises the Crown, the elected House of Commons and the currently unelected House of ...