How the power is to be determined as to separation of power in UK.

       An important task for a constitutional system is to determine how power is to be determine, how power is to be distributed across different institutions and public offense holders. Separation of power is a fundamental concept which has been made distinction between functions of the state and the personnel responsible for the functions dealing with the execution of power(the executive), debating and making laws(the legislature) and judging of individual cases according to the law (the judiciary). The concept of this principle and its practical application are contentious in the UK in several ways. The concept of separation of powers has various functions. It is a template for designing constitutions and constitutional reform. It may protect individual liberty by ensuring that too much power is not concentrated into the hands of one person or institution. It may promote efficiency by ensuring that appropriate institutions make decisions.

         In the UK system, separation of powers is a justification for basic constitutional arrangements. Members of parliament and peers cannot serve as senior judges. Judges cannot serve as MPs or in the House of Lords. “parliamentary privilege” prevents courts scrutinizing parliamentary matters. “sub judice” rules generally prevent MPs and peers discussing cases before the courts. As the UK system is a parliamentary democracy, not a presidential one, there is no separation between parliament and government. Indeed, ministers are required to be in parliament ensure they are held to account. The UK ‘s constitutional arrangements are described as “The Westminister model”. This refers to ministers(the government) being drawn from members of parliament. Many changes to the constitutional system call into question the Westminister model.

         The political doctrine of the separation of powers can be traced back to Aristotle who states “there are three elements in each constitution. First, the deliberative, which discusses everything of common importance. Second, the officials and third the judicial element. This highlights the three elementary functions that are required for the organization of any state. Nowadays they are defined as the legislature, the executive and the judiciary and carried out by government.

         According to Montesquieu, all the powers should not be given to one institution. There will not be liberty. “When legislative power is united with executive power in a single person or in single body of the magistracy, there is no liberty. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. All would be lost if the same man or the same body of principal men, either of nobles or of the people exercised these three powers that of making the laws, that of executing public resolutions and that of judging crimes or the disputes of individuals”.

         The legislature is the law-making body and is comprised of the House of Commons and the House of Lords. The legislative function involves the enactment of general rules determining the structure and powers of public and regulating the conduct of citizens and private organizations. The executive is all the institutions and persons concerned with the implementation of the laws made by the legislature. It involves central and arm forces. The judiciary is made up mainly of professional judges and their main function is to determine disputed questions of fact and law in accordance with the law laid down by parliament and expounded by the courts and exercised mainly in the civil and criminal courts.

         An alternative view of the separation of powers between the crown and the parliament, Tomkins has argued that the conflict between Charles 1 and parliament in the 17th century civil wars is still the model for the only two powers ever recognized by the British constitution. Tomkins argued, controversially, that the judicial function is subsumed into the crown. The obvious question which arises from Tomkins argument and stated that the courts are in some sense part of or dependent upon the crown and are not independent of it.

         Regarding the manner of relationship between judiciary and legislature, the separation of powers, the House of Commons disqualification Act 1975 provides that all full timed members of the judiciary are barred from membership of the House of Commons. Since the Constitutional Reform Act 2005, they no longer execute legislative functions due to the newly created supreme court, which is separate from House of Lords. It is a constitutional convention that MPs should respect judicial independence and not comment on the activities of judges unless there is a motion to dismiss  a superior judge. If a parliamentary Act is in breach of the European convention on Human Rights, then under the Human Rights Act 1998, judges in superior courts can make a declaration of incompatibility. However, this does not mean the Act is not valid, because again honoring the separation of powers, only parliament can make or unmake law. Each House of parliament has the power to enforce its own privileges and to punish those offend against them.

         Judicial independence from the government is a key requirement of the separation of powers, though judges are appointed by the executive. The independence of judges from both the executive and the parliament is protected by the Act of Settlement 1700 and the Constitutional Reform Act 2005, s.33 which provided for the security of tenure for senior judges who can only be dismissed on an address by both houses of parliament to the court. Article 6(1) of Human Rights Act 1998 requires effective separation of powers between the courts and the executive by an independent and impartial tribunal established by law. Section 3 of the constitutional Reform Act 2005 contains the first statutory guarantee of judiciary independence. It takes that the ministers of the crown must uphold the continued independence of the judiciary and must not seek to influence judicial decisions through any special aspects to the judiciary.

         Judicial control of the executive exists by judicial review of administrative action design to keep those persons and bodies with delegated powers within the scope of the power conford upon them by the parliament. Example  of judicial control can be seen in M v Home office 1994 where the House of Lords ruled that an injunction can be issued against a public body. Also delegated legislation can be review by courts in order to determine its constituency with the scope the power granted by parliament in the enabling Act. judges have jurisdiction to review the exercise by the executive of royal prerogative powers. However, judges exercise self-restraint in relation to prerogative covering areas of high policy. Such matters are left in the hands of the executive to handle (GCHQ). This is a clear expression separation of powers.

         The relationship between executive and legislature, ministers who are members of the executive for from being separated from the legislature sit as members of parliament which is the legislative body. To Volter Bagchote who denounced the theory of separation of powers, the close relationship between the executive and the parliament represent “the efficient secret of the English constitution”. Apposing the view Lord Helsham asserted that the current electoral process, returning governments with large majorities in parliament leads to an “effective dictatorship”. That is to say a situation in which the executive dominates and control the legislature and there by ensuring that its purpose legislations are enacted. The close union of the executive and the legislative suggests that there is potential of abuse since the executive could control the parliament. That depends on the effectiveness of parliamentary scrutiny.

         Civil servants are disqualified, and ministers are limited to 95 by the House of Commons disqualification Act 1975. The loss of a vote of confidence on major policy will cause the government to full despite its majority. Government legislative proposals as well as policy and administration are adequately scrutinized. Procedures such as question time, debates, select committees and the convention of collective ministerial responsibility and individual responsibility ensures the accountability of government to parliament. Parliament make delegate law making power to government through the powers to draft delegated legislation. This is to free parliament from drafting technical and detailed rules. Such legislation is subject to the ultimate approval of parliament. The implication of delegated legislation is that a legislative function is being exercised by the executive and not the parliament. There are numerous examples of overlap and checks and balances between the three functions of government and these shall now be explored.

         In conclusion it can be seen there are definite relationships between each limb of government, and this shows that the separation of powers is not a concept to which the UK fully adheres. However, the view of the courts is one of absolute separation. It is a feature of the peculiarly British conception of the separation of powers that parliament, the executive and the courts have their distinct and largely exclusive domain. Whilst the courts remain of this view and whilst the three limbs, although they overlap in many ways, remain distinct and largely separate, there is at least a partial separation of powers in the UK.