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A report on the power and limits of power essay

Prerogative Powers

Through habitual utilisation revealing the expectations associated with these Conventions, a compliance affecting political and legal activities limits any prerogative powers, although not enforceable in law. Montesquieu propounds the total separation of powers, with no single person fulfilling more than one prominent position.

This simplistic solution does not adequately address the organisation of the Parliamentary offices that exist today. These Ministers are responsible for major litigation involving the Government. However, it was announced by the Government in 2003 that the position of Lord Chancellor was to be abolished.

The Lord Chancellor is also directly responsible for appointing the lower judiciary. The Judiciary do, however, maintain an independence from higher office. There are certain conventions attached to behaviour expected of the judiciary, with them being expected to refrain from political activities, and under Schedule 1 of the House of Commons Disqualification Act 1975 are prohibited from holding office as a Member of the House of Commons.

Judges can only be discharged by the exclusive decisions of both the Houses of Commons and Lords in conjunction with approval by the Crown under Section 11 3 of the Supreme Court Act 1981. This exclusive role of Lord Chancellor carries enormous significance, encompassing enumerable responsibilities necessitating a number of executive centres to accommodate this. In view of the fact that there are around 659 MPs, with a slightly higher number in the House of Lords complete control over the executive would be very difficult to implement.

With Government Departments being so extensive, a number of Select Committees have been appointed to preside over the organisation and overtly monitor the issue of legal liability, with debate, oral and written questions forming part of the system of accountability.

Separation of Powers -- An Overview

The characteristics displayed by the Parliamentary Select Committees reflect the seniority of the judiciary who oversee legislative appraisals, e. This illustrates an indubitable prerogative of power which can only compromise the impartiality of the judiciary.

On the advice of the Prime Minister in 1967, the Crown created the Parliamentary Commissioner for Administration through the Parliamentary Commissioner Act 1967, later to become known as the Ombudsman. Until EU legislation was ratified Parliamentary precedence prevailed through Statute, encoded within legislation and sustained by the English legal system. This espousal of English law, and ultimately Parliament, precluded the judiciary from assuming supremacy unless the Government were culpable of illicit conduct.

  • With Government Departments being so extensive, a number of Select Committees have been appointed to preside over the organisation and overtly monitor the issue of legal liability, with debate, oral and written questions forming part of the system of accountability;
  • It is understandable that the various Select Committees have been set up throughout Parliament administrations to pre-empt this situation arising, with frequent written statements published as either Letters or Memoranda from Committee Members, such as that written by Mr Browning, MPP PASC;
  • The resources include law review articles, court cases and legislative reports;
  • Under his model, the political authority of the state is divided into legislative, executive and judicial powers;
  • Forty state constitutions specify that government be divided into three branches;
  • This simplistic solution does not adequately address the organisation of the Parliamentary offices that exist today.

New sources of lawsuch as the devolved administrations realised in The Scotland Act 1998 and the Government of Wales Act 1998, and especially evident since the ECHR was ratified in October 2000, also complicate matters, although devolved legislation and all UK Ministers remain ultimately accountable to UK Parliament. Section 2 4 of the Convention is especially relevant in binding any implied repeal by Parliament, although there is always potential for derogations to be applied as necessary.

As a result, freedom is assured in the absence of specific contrary legislation, a situation which applies equally to Government ministers. Griffith 1985 is highly critical of the perceived lack of regulation within Government departments, commenting that essential political restructuring is indispensable to restrain prerogative powers within any Department.

As evidence of this James Callaghan has been reported to state: One of the remedies for a judicial review is the prerogative of Certiorari which reverts the initial problem back to its initiator. The prerogative remedy of mandamus results in a prohibition preventing an action being carried out.

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Other prerogative remedies are habeus corpusinjunctions and declarationsand damages. The potential for Parliament preventing the abuse of prerogative powers exercised by Ministers of the Crown under a modern constitution should lie within the bounds of the ruling Executive with party discipline determined through the doctrine of collective responsibility administered through the Courts.

Conversely, there no evidence a prerogative of use is required, which encourages the potential for abuse, although prerogative powers are, however, limited by statute. Is there any credibility in these three areas of power maintaining suitable checks and prevent of abuse of privilege. Both the executive and the electorate are answerable to Parliament whilst the Judiciary maintain an aloof independence as custodians of the law.

It could be assumed that Government and Ministers would be accountable through the concept of the constitution represented by the rule of law, conventions and statute, with the ultimate power in the hands of the electorate.

The doctrine of collective responsibility, applying their collective decisions, made by the Cabinet, reaches the House of Commons which constitutes one of the bicameral House, the other occupied by the House of Lords.

Separation of Powers -- An Overview

If these powers are misused, however, those responsible can still be brought under control, illustrated when the House of Lords ruled the Home Secretary guilty of contempt of court Lord Mustill is a strong supporter of the Courts and Parliament being able to prevent the abuse of prerogative powers being exercised by Ministers of the Crown.

He was reported to state that: Parliament has a largely unchallengeable right to make whatever laws it thinks right.

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  2. Politics of the Judiciary, 1985 London. With the EU legislation limiting the sovereignty of Parliament it remains questionable whether the importance and relevance of the Rule of Law will retain sufficient impact to maintain true separation of powers and uphold the prerogative power bestowed by the Crown, and maintained by the Courts, as a privilege by convention which does create a potential for too much power coming accumulated in one person or institution as pointed out by Montesquieu.
  3. The Executive carries on the administration of the country in accordance with the powers conferred on it by law. The Executive has sometimes appeared to interpret the law according to its purposes , or pursue certain legislation rather vociferously , revealing a potential conflict with the ethos of the Rule of Law.
  4. Judges can only be discharged by the exclusive decisions of both the Houses of Commons and Lords in conjunction with approval by the Crown under Section 11 3 of the Supreme Court Act 1981.

The Executive carries on the administration of the country in accordance with the powers conferred on it by law. The Executive has sometimes appeared to interpret the law according to its purposesor pursue certain legislation rather vociferouslyrevealing a potential conflict with the ethos of the Rule of Law.

The introduction of the ECHR has limited the power of both the executive and the Parliament, although attempts have been made by various Home Secretaries to derogate Article 5 of the Convention in respect of asylum seekers and, more recently the anti-terrorism issue.

With the EU legislation limiting the sovereignty of Parliament it remains questionable whether the importance and relevance of the Rule of Law will retain sufficient impact to maintain true separation of powers and uphold the prerogative power bestowed by the Crown, and maintained by the Courts, as a privilege by convention which does create a potential for too much power coming accumulated in one person or institution as pointed out by Montesquieu.

It is understandable that the various Select Committees have been set up throughout Parliament administrations to pre-empt this situation arising, with frequent written statements published as either Letters or Memoranda from Committee Members, such as that written by Mr Browning, MPP PASC: Can the Courts and Parliament prevent an abuse of prerogative powers exercised by Ministers of the Crown?

The final answer can only be given by Professor Jowell, QC, ad verbatim: The first surprise, a small one, comes in the first sentence: The second, bigger surprise comes in the first part of the second sentence: Then comes a double bomb shell: English Legal System, 1996 1st Ed.

Politics of the Judiciary, 1985 London: Fontana Press Montesquieu, C. The Spirit of the Laws, Cambridge: The English Legal System: The Machinery of Government, 1997 1st Ed. Legislation Article 6 of the ECHR only engages when a person's civil rights and obligations are in issue. Secretary of State for Transport ex parte Factortame No. Fire BrigadesUnions, at 567 Source: Essay UK - http: If this essay isn't quite what you're looking for, why not order your own custom Law essay, dissertation or piece of coursework that answers your exact question?

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