Separation of Powers in Public Law

This report explores the concept of separation of powers in public law and its relevance in the United Kingdom. It examines the powers of the government's three main organs - the executive, legislature, and judiciary - and their interplay. The report also discusses the powers of the Chief Constable and analyzes the relevant sections of the Public Order Act (1986) and the Police and Criminal Evidence Act (1984).

Public Law

Table of Contents
INTRODUCTION...........................................................................................................................3
PART ONE......................................................................................................................................3
Three Main Organs of the Government..................................................................................3
Separation of the Executive and Legislature..........................................................................4
Separation of the Legislature and Judiciary...........................................................................5
Separation of the Executive and Judiciary.............................................................................6
REFERNCES...................................................................................................................................8
PART TWO.....................................................................................................................................9
(A) Powers of Chief Constable towards Intended March......................................................9
(B) Legality of Police Constable’s Actions..........................................................................10
CONCLUSION..............................................................................................................................11
REFERNCES.................................................................................................................................12

INTRODUCTION
Separation of powers is essential in order for a democratic government to function
efficiently. Simply said, power is allocated across the various government organs, along with
their respective powers and responsibilities. Modern democracies include the separation of
powers. Through the balance of powers, this notion limits government corruption. The correct
division of powers amongst the governmental institutions ensures citizens' equality and safety
(Chen, 2021).
The report examines the role of government’s three main organs and their separation of
powers accordingly. The powers of these organs are closely intertwined to each other and
further, the report examines its relevance in the United Kingdom. The report provides brief
comparison of these powers with other jurisdictions. Also the second part of report provides
fictitious scenario which highlights the powers of Chief Constable to control or prohibit the
intended march and also examines the relevant sections of Public Order Act (1986) and the
Police and Criminal Evidence Act (1984).
PART ONE
Three Main Organs of the Government
Since the United Kingdom's constitution is uncodified, the lack of a formal written
constitution implies that there is no constitutional division of powers (Ceil, 2020). They do, in
reality, exist because they overlap and collaborate. The three main government organs play the
following roles: As the Parliament wields authority, the Legislative organ performs a critical
function. It is the UK's supreme law-making authority, with the power to make and repeal any
legislation. The Crown, House of Lords, and House of Commons compose up the UK
Parliament. The Crown has notional power and is required to obey the Prime Minister's advice,
who in turn takes advices from the Members of Parliament (MPs). Furthermore, the House of
Commons is made up of elected members of Parliament with a majority of 326 or more seats,
whilst the House of Lords is made up of clergy members, hereditary peers, and life peers elected
by the Crown.
The executive's primary function is to administer the state, with the government delegating
authority and responsibility. It focuses on enforcing or executing the law. The Crown and the
Government comprise the executive branch, which includes the Head of State, the Queen in the

United Kingdom, the Head of Government, the Prime Minister, and the Cabinet of Ministers.
The Prime Minister appoints the Cabinet Ministers, which consists of 20 ministers from several
government agencies. The executive branch is responsible for developing and enforcing efficient
government policies. Furthermore, the administration is accountable to Parliament for its
policies, which has the ultimate ability to dissolve a government and call a new election.
Members of Parliament who represent the House of Lords or the House of Commons are usually
elected to govern. As a result of their capacity to issue executive orders or decrees, the branch is
often known as the source of law. Even the Parliament may assign its legislative authority to the
Government for the purpose of enacting subordinate laws. For example, the UK's Parliament
passed the Sales of Goods Act 1979, which oversees contract and commercial law (Tarabar and
Young, 2021).
The Judiciary is the other important organ; it consists of judges of the courts, who occupy
judicial positions in tribunals, as well as personnel of magistrate courts. The Crown is in charge
of appointing senior judges. This branch's primary responsibility is to resolve disputes in
conformity with the law. They are also the source of law, namely Common Law, which is
established based on the decisions or rulings of judges in the courts. A person, for example, has a
responsibility to read the conditions of a contract. This branch also operates independently of the
executive and legislative branches. To resolve a dispute, the English legal system has a hierarchy
of court system. Superior courts' decisions are binding on subordinate courts, but judges can
override them if they believe they are significant. Judges must be effective in their decision-
making by following proper natural justice norms.
Separation of the Executive and Legislature
The powers of executive and legislature are closely connected to each other. As the Prime
Minister and his or her Cabinet Ministers are the Members of Parliament and even sit in the
House of Commons. Whereas, the executive is considered as the heart of Parliament. There
integration of powers led to stability as well as efficiency in the operations of government’s role.
For instance the Prime Minister being the head of executive branch and leader to majority party
allows him or her to enjoy the freedom of action (Cairney, 2021). On the other hand, Parliament
being supreme law making authority may delegate its power to the government by way of
delegated legislation. The question in respect of dominance arises in case where government
consumes large majority of seats in the Houses of Commons.

However, in order to prevent the dominance of executive over Parliament, the House of
Commons (Disqualification) Act 1975, limits the seating of members in the House (Smith,
2021). In addition, the legislative branch has the formal authority to discharge the officers from
their respective offices. The Convention of Ministerial Responsibility aims to establish certain
responsibilities of government towards the Parliament. The Parliamentary Voting System and
Constituencies Act 2011 provides the cut off in the Parliament Members from 650 to 600.
Furthermore, the Committees established under the act focuses on the roles and responsibilities
of minsters in the House. In order to prevent the strengthening of the executive as compared to
parliament the Section 14 of Parliamentary Voting System and Constituencies Act 2011, requires
to examine the reduction effects in the number of MPs. The recent reform includes the
Backbench Business Committee in 2010 with an aim of facilitating the legislature with more
independence relatively in terms of operations, from the executive. It is believed that the
committee will facilitate more control and ownership to the MPs in respect of Parliament agenda.
Further, will be relevant for the public interest as well as strengthen the oversight role of Select
Committees.
Separation of the Legislature and Judiciary
The second comparison of powers is between the legislature and judiciary. According to
the House of Commons (Disqualification) Act 1975, there are certain enactments specifying the
disqualification for being the members of House of Commons (McCullagh, 2020). The act
prohibits certain categories of members to obtain membership in the House of Commons.
Anecdotally, the judges of the UK comes under the prohibited category. As the role of judges is
to interpret the legislation passed by the Parliament and even they are responsible for devising
Common Law (laws formulated on basis of judgements), categorized as one of the sources of
law. Constitutionally, judges being subordinate to the Parliament cannot challenge their acts.
However, the judges have considerable discretion in interpreting statutes, which begs the
question of whether they are competent to “make law.” In Jackson v Her Majesty’s Attorney
General [2005], the case is brought by Jackson and other members of Countryside Alliance,
challenged the application of Parliament Acts to the Hunting Act 2004 (May and et. al., 2021).
The appellant claimed the invalidity of this act on the basis that the concerned act is passed
without the consent of House of Lords, which raised the question on the relationship between

parliament sovereignty and rule of law, implying that there certain restraints to sovereignty
where constitutional fundamentals were in jeopardy.
Whereas notion of Parliament privilege is set out under Article 9 of the Bill of Rights
1689, providing the freedom of speech and debate. This privilege is considered as constitutional
importance and provides to be as unconstitutional if any courts attempts to contravene the
parliament privilege. In simple words, no court has power to prohibit this privilege through its
order or decree (Hatchard and Slinn, 2021). On the other hand, a convention is established which
prohibits the MPs to criticize judicial decisions. The convention is complemented by the sub
judice rule that protects against Parliamentary involvement in cases which are currently brought
before courts. It provides that where the decision is awaiting by the appropriate determination by
the courts, the issue is not require to be discussed in the House and thus, should not affect the
decisions of the court. However, the rule is not absolute and even does not affect the
Parliament’s right to legislate any matter (Masinde, 2021).
Separation of the Executive and Judiciary
The third is the separation of power between the executive and the judiciary. The
function of the judiciary includes the scope of delegated legislation and other power granted by
the parliament and even ensures the action of government and other legal bodies. The judiciary
has the power to review the actions of the public bodies and raise questions. Recently in A v
Secretary of State for Home Department [2004], in which the attorney argued that the matters
are of political nature rather than the judicial judgement. Further, said that the court has no
authority to reclaim belonging in respect to the detention without any reasonable suspicion and
charge of international terrorists in Belmarsh prison. The Lord rejected the argument and
concluded that the role of judge to interpret and apply the law universally is the vital function
and the Attorney General was wrong to persecute the judicial decisions in undemocratic manner.
Moreover, in Constitutional Reform Act 2005, provides the reformed powers of the
government and parliament in the UK. The act created Supreme Court and Lord Chancellor was
replaced by the Lord Chief Justice, as head of judiciary. The act even placed certain statutory
duties on ministers to maintain the independence of judiciary (Phillips of Worth Matravers,
2021). Before 2005, being the head of judiciary the Lord Chancellor has the responsibility to
appoint the judges and further, a member of Cabinet and Speaker of the House of Lords. In
McGonnell v United Kingdom [2000], Lord Irvine as Lord Chancellor stated that “the Lord

Chancellor shall not deal any case where he had been involved directly in the passage of
legislation, nor in any case where the interests of executive is involved directly”. The Lord
Chancellor after 2005 was no longer Speaker of the House of Lords. Furthermore, the act
reduced the diversity in relation to new appointments and the process was later criticized for
being time consuming and slow (Forde, Kappler and Bjorkdahl, 2021). Since on emergence of
Supreme Court the concerns were raised in respect of dependency of judiciary over the
executive. Furthermore, the Senior Courts Act 1981, prescribes the legal structure and
jurisdictions for the senior courts in England and Wales. Section 11 of the Senior Courts Act
1981, applies to the office of judge which provides that the person appointed shall vacate the
office on attaining the age of 73 years unless ceased to hold office before then. Even the person
is require to hold the office in good faith and in case of bad behaviour shall be removed by
Majesty on presenting matter before both the Houses of Parliament (Holme of Cheltenham,
2021).

REFERNCES
Books and Journals
Ceil, C., 2020. The Concept of Separation of Powers Is Not Well-Respected in the UK
Constitution. SSRN Electronic Journal,.
Hatchard, J. and Slinn, P., 2021. Parliamentary supremacy and judicial independence. London:
Cavendish Pub.
Holme of Cheltenham, R., 2021. Constitutional Reform Act 2005.
Masinde, M., 2021. Separation of power in Kenya: analysis of the relations between judiciary
and the executive. International Journal of Human Rights and Constitutional Studies.
5(1). p.32.
May and et. al., 2021. Erskine May's treatise on the law, privileges, proceedings, and usage of
Parliament. London: LexisNexis.
McCullagh, K., 2020. A Tangled Web of Access to Information: Reflections on R (on the
Application of Evans) and Another v Her Majesty's Attorney General. SSRN Electronic
Journal,.
Phillips of Worth Matravers, N., 2021. The Lord Chief Justice's review of the administration of
justice in the courts. London: Stationery Office.
Smith, S., 2021. House of Commons Disqualification Act, 1957. The Modern Law Review.
20(5). pp.492-494.
Chen, W., 2021. Theory of Judicial Power and Its Transformation. In Reform and Development
of Powers and Functions of China's Criminal Proceedings (pp. 49-184). Springer,
Singapore.
Tarabar, D. and Young, A.T., 2021. What constitutes a constitutional amendment
culture?. European Journal of Political Economy, 66, p.101953.
Cairney, P., 2021. The politics of policy analysis. Springer Nature.
Forde, S., Kappler, S. and Bjorkdahl, A., 2021. Peacebuilding, Structural Violence and Spatial
Reparations in Post-Colonial South Africa. Journal of Intervention and Statebuilding,
pp.1-20.

PART TWO
(A) Powers of Chief Constable towards Intended March
According to the Public Order Act 1986, the march or moving protest is considered as a
procession. The act provides differences between the march and static gathering. Police powers
associated with the march or moving protests and static protests are somewhat similar. The act
provides the police with three powers which are: The organiser of the march or moving protest is
require to notify such information at least six days before to the local police (Fuchs, 2021). The
notification must inform the local police about the date, time, route and other names of
organizers participating and other relevant information related to the march, as per section 11 of
this act. It is an offence if the march or moving protest is organized without informing the local
police officers. Also it is an offence if the organisers or individuals change the route, date or time
and other information as notified to the local police officers (Dixon, 2021). On the other hand,
police has the power to limit the march or moving protest, change route if required, and even can
set terms and conditions in respect to the march, if feel appropriate. Furthermore, police can
make arrangements for stewarding and policing. Those participating in the march or moving
protest is require to comply with negotiations made in order to maintain public trust and essential
support.
Section 13 of the Public Order Act 1986, facilitates power to ban marches outright. The
Chief Constable has the power if he or she believes that imposing restrictions will not be
sufficient from preventing major public disorder which is resulting from the march. The decision
of the Chief Constable is require to be approved by the Local Council (unless such march is
intended in the London) and by the Home Secretary. The ban of march applies to all other
marches in the area for the duration of the ban. Generally such power is used infrequently.
Powers in practice include the prohibiting the marches or moving protests. The police have the
ability to recommend that a planned protest or march be prohibited by the relevant local
authority. They can do so in concern of their ability to safely regulate the planned march or

protest. The local authorities, on the other hand, is require to seek consent from the Home
Secretary before taking any step to prohibit the march or moving protest. Furthermore, the
offence is committed when the march is organized after being prohibited. Those who are
convicted of the offence are charged with either fine or imprisoned, deems fit (Dehaghani and
Newman, 2021).
Section 14 of the act, allows the senior officers to issue direction if they reasonably believe:-
 That the protest or march may led to serious public disorder, serious damage to property
or disruption of life, as in this case scenario the police believes so, (Gelber, 2021) or
 The main motive of the protest or march is to intimidate others and even to compel others
in respect of the right to do an act which they have no right or not to do an act to which
they have right to do so.
Under the eyes of law the police officers have the power to use some force in certain
circumstances. There are certain provisions stated under the Criminal Law Act 1967 and the
Police and Criminal Evidence Act 1984, which allows the police officers to use powers in case
of reasonable circumstances (Diab and Pue, 2021). As per the act ‘reasonable circumstances’ is
defined as in case of absolute necessity. Some of the police tactics such as usage of batons and
the deployment of shields can be used as force. Officers are require to give proper training in
respect of using such tactics and sometimes their use necessitates explicit permission. One of the
controversial tactic is the containment as the use of force. It allows the police officers to handle
and better control the crowds. Generally the containment as per the public order, is used as final
resort and in case where there is breach of peace or reasonably thought to be imminent. Another
tactic involves the communication which aims to eliminate conflicts, strengthen the relationships
between police and the organisers, support the police operations smoothly and identify the police
response effectively.
(B) Legality of Police Constable’s Actions
Section 4 of the Public Order Act 1986, states the fear or provocation of violence
(Hattery and Smith, 2021). The section 2 of this act provides that the person is guilty of offence
when he or she:-
 Make usage of words or conduct any such behaviour towards the other person, or
 Make display or distributes any such writing, sign or other visible representation
that are committed to threaten or abuse or insult the other person. Such is done either:-

 With an intention to cause harm or believe that such will led to immediate violence
against other person, or with an intention to provoke such immediate violence or harm
against the other person.
 Whereby the person committing guilt is likely to believe that such will led to immediate
violence or harm, or it is very likely that such violence will be instigated.
The offence is not committed on occasion of disorderly conduct. The offence under section 4
of this act is considered to be fairly serious and the behaviour related to merely disorderly
conduct is usually dealt under section 4A or section 5 of the act (LaVan and Martin, 2021). The
offence require that such word, behaviour or visible representation must be directed towards
someone. Which in this case scenario is as Tim one of the protestors called the Police Constable
Hemp a ‘pig’ in response to which the PC Hemp arrested Tim on the basis of section 4 of Public
Order Act 1986, for using such abusive language (Stasi, 2021).
CONCLUSION
The above report is bifurcated into two parts, Part one provides the separation of power
theory and its relevance with the British Constitution. The report examined briefly the separation
of each powers and their comparison with other jurisdictions with relevant acts, rule and case
studies. Whereas, Part two of the report highlighted the answers in response to the questions
raised from the fictitious case scenario provided. The report examined the power of the Chief
Constable in respect to control or prohibit the intended march or moving protest. Furthermore,
examined the legality of one of the protestor’s actions under section 4 of the Public Order Act
1986. The report has discussed briefly the relevant sections related to Public Order Act 1986 as
well as the Police and Criminal Evidence Act 1984.

REFERNCES
Books and Journals
Dehaghani, R. and Newman, D., 2021. Criminal legal aid and access to justice: an empirical
account of a reduction in resilience. International Journal of the Legal Profession. pp.1-
20.
Diab, R. and Pue, W., 2021. The Gap in Canadian Police Powers: Canada Needs 'Public Order
Policing' Legislation. SSRN Electronic Journal,.
Dixon, D., 2021. Protest and Disorder: The Public Order Act 1986. Critical Social Policy, 7(1),
pp.90-98.
Fuchs, P., 2021. Wafting spheres: much ado about nothing. Kybernetes.
Gelber, K., 2021. Norms, institutions and freedom of speech in the US, the UK and
Australia. Journal of Public Policy. 41(2). pp.209-227.
Hattery, A.J. and Smith, E., 2021. Policing black bodies: How black lives are surveilled and how
to work for change. Rowman & Littlefield Publishers.
LaVan, H. and Martin, W.M., 2021. Ethical challenges in workplace bullying and harassment:
Creating ethical awareness and sensitivity. Concepts, Approaches and Methods. pp.163-
193.
Stasi, A., 2021. Basic Concepts and Principles of Criminal Law. In General Principles of Thai
Criminal Law (pp. 1-14). Springer, Singapore.