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In critically evaluating the veracity of statements made by “some observers” that “there is no need to even question the adequacy of the constitution, still less to expend energy on proposals advocating fundamental or even partial reforms of its substance1” it is…
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Download file to see previous pages he principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.3” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely4”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power.
As part of this, judicial review of the legality of acts of the executive represents the central method by which courts control exercise of governmental power; which in turn operates as a central underlying facet of the separation of powers. As such, the doctrine of ultra vires is theoretically vital in serving as a testament to the independence of the judiciary in its role under the fundamental constitutional separation of powers in ensuring that public bodies, such as government departments, local authorities, tribunals, agencies have not acted ultra vires5. Moreover, the ultra vires doctrine is cited as the first principle of natural justice and the rule of law that public bodies are required to act within the scope of the powers allocated to them by Parliament6.
With regard to the UK position, the doctrine of the separation of powers has traditionally been limited and criticised for being somewhat unclear in comparison to other democracies7. Nevertheless, it has been commented that the doctrine does in fact influence everyday operations of the executive, legislature and judiciary8 and Barnett argues that “Separation of powers…… runs like a thread throughout the constitution of the United Kingdom9.”
Nevertheless, in the UK there has not been a clear separation of the branches of the state10, but rather a fusion, which in turn has created polarised debate with regard to the need to reform the British constitution. For example, the executive clearly carries out ...Download file to see next pagesRead More
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