Separation of Powers

What are the three powers

Legislative, Executive, Judicial

Separation of Powers

The government must be divided into three branches with different functions and unable to encroach on another branch's functions. No person should be a part of more than one branch

What 3 things are separated in Vile's concept of a pure separation

1. Agency

2. Function

3. Personnel

what does John Locke say about the powers of the legislative

the possess supreme authority in "how the force for the commonwealth shall be employed"

What did Montesquieu say about the separation of powers in 'The Spirit of the Laws' 1748

'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty because apprehensions may rise, lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner'

How does Jennings contradict Montesquieu

• argues that democracy rather than the separation of powers prevents tyranny and keeps the UK free.

• the real value lies in making sure each institution is subject to checks

• powers will inevitably overlap, this is a strength not a weakness

James Maddison, The Federalist Papers

The aim of the SoP is to "divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights."

liberty model of SoP

SoP is needed to protect against concentrations of power, legal instruments are needed to separate powers

arguments against the separation of powers

separation makes it harder for the institutions to function as rather than working in unison, they are completely isolated

The Judiciary functions showing separation of powers:

Magna Carta Clause 39: No free man is to be arrested or imprisoned […] or in any other way ruined […] except by the lawful judgement of his peers or by the law of the land

Case of prohibitions [1607]:

The King in his own person cannot adjudge any case either criminal or as treason, felony [etc] but this out to be determined and adjudged in some court of Justice according to the law and custom of England

Why does Dicey believe there needs to be judicial independence to uphold the rule of law?

If the judiciary is not separate from the executive/legislative, they cannot hold other institutions into account for not upholding the rule of law

How did the Constitutional Reform Act 2005 allow judicial independence

Prior to the 2005 Act, the UK's highest appellate judges, known as Law Lords, operated within the House of Lords, thereby blending legislative and judicial functions. The Act's establishment of the UK Supreme Court as an independent entity effectively addressed this overlap

Constitutional Reform Act 2005 showing separation between J and L

s.33 Judge of the SC holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament

The position of the Lord Chancellor

Before: The Lord Chancellor had a triple role - member of the Cabinet (executive), head of the judiciary (judicial), and Speaker of the House of Lords (legislative).

The Act reduced the position to a government minister (executive).

R (Anderson ) v SSHD 2003

the Home Secretary's role in setting the tariff was akin to a judicial function, as it involved determining the punitive duration of a sentence. This blending of executive and judicial responsibilities was found to be incompatible with Article 6(1) of the ECHR, which guarantees the right to a fair hearing

Lord Steyn dissent in Anderson

"Our constitution has never embraced a rigid doctrine of separation of powers. The relationship between the legislature and the executive is close" - Lord Steyn

Act of Settlement Clause 3

"No person who has an office of place of profit under the King or receives a pension from the crown shall be capable of serving as a member of the House of Commons"

Article 9 Bill of Rights 1689

"Proceedings in Parliament cannot be questioned in any court or other place outside of Parliament"

Barber

a strict separation of powers is not achievable or beneficial, some overlap between functions improves efficiency - constitutional arrangements should be judged on how well they prevent the concentration of power rather than whether they conform to classical models of SoP

Vile

separation of powers is a core mechanism to achieve constitutionalism - constitutionalism is about limiting government power enough to protect individual liberty but making sure government is powerful enough to be effective

Montesquieu

liberty is best preserved when powers are separated as this acts as as a mechanism to maintain equilibrium and prevent arbitrary rule