Separation of power

What is the separation of powers?

A constitutional principle about the nature, relationship, and function of the different powers exercised by the state.

What key course theme does the separation of powers connect to?

Power: its allocation, accountability, and legitimacy.

What does separation of powers examine?

How state power is divided between different institutions and how those institutions relate to each other.

What are the main powers of the state in separation of powers theory?

Legislative power, executive power, and judicial power.

What is legislative power?

The power to make law.

What is executive power?

The power to govern and implement law.

What is judicial power?

The power to interpret law and resolve disputes.

What concern does separation of powers try to address?

The danger that concentrated power may lead to abuse or tyranny.

What did early separation of powers theory suggest about monarchy?

Monarchy risks denying others sufficient access to justice and deliberative responsibility.

What did early separation of powers theory suggest about aristocracy?

Aristocracy risks leaving the people with little role in liberty, deliberation, and power.

What did early separation of powers theory suggest about pure democracy?

Pure equality may become problematic if it recognises no differences in status or role.

Why did early theory support mixed government?

Because each pure form of government has faults and can slide into a related abuse of power.

Why is the Civil War relevant to separation of powers in the UK?

It raised fundamental questions about the division of authority between Crown and Parliament.

What was the Interregnum?

The period after the Civil War when monarchy was temporarily replaced by the Cromwellian Protectorate.

What was the Instrument of Government 1653?

A short-lived codified constitution during the Cromwellian period.

What was the Humble Petition and Advice 1657?

Another constitutional document from the Cromwellian Protectorate period.

What is a bipartite separation of powers?

A division of authority into two main powers, usually legislative and executive.

Which theorist is linked in the slides to bipartite separation?

Locke.

What two powers did Locke distinguish?

Legislative power and executive power.

What is a tripartite separation of powers?

A division of authority into executive, legislative, and judicial powers.

Which theorist is linked in the slides to tripartite separation?

Montesquieu.

What did Montesquieu warn about combining legislative and executive power?

It risks tyranny because the same body could make tyrannical laws and execute them tyrannically.

What did Montesquieu warn about combining judicial and legislative power?

The judge would become the legislator, exposing life and liberty to arbitrary control.

What did Montesquieu warn about combining judicial and executive power?

The judge might behave with violence and oppression.

What did Montesquieu say would happen if one body exercised all three powers?

There would be an end of everything because law-making, execution, and judging would be concentrated together.

What did Blackstone say about the judiciary?

The judiciary is the main preservative of public liberty.

What does the historical perspective show about separation of powers?

There are many versions of the principle, including strict, pure, and partial forms.

Why has separation of powers evolved over time?

Because it has been shaped by social context and particular individuals.

What is a strict or pure separation of powers?

A model where state powers and institutions are kept clearly separate.

What is partial separation of powers?

A model where powers are separated in some respects but overlap in others.

What two justifications for separation of powers are highlighted in the slides?

Liberty and governance efficiency.

What is the Westminster fusion model?

The UK model where Parliament and Government overlap rather than being strictly separate.

How does the executive influence law-making in the UK?

Through writing the Queen’s Speech, setting the parliamentary timetable, and relying on the Salisbury Convention.

What Act is noted as relevant to Parliament and Government overlap?

The House of Commons Disqualification Act 1975.

How did the Constitutional Reform Act 2005 affect separation of powers?

It created the UK Supreme Court, changed the role of Lord Chancellor, and introduced the Judicial Appointments Commission.

Why is the UK Supreme Court relevant to separation of powers?

It separates the highest court more clearly from Parliament.

Why were changes to the Lord Chancellor important?

They reduced overlap between judicial, executive, and legislative roles.

What is the Judicial Appointments Commission relevant to?

Judicial independence and separation between the judiciary and political branches.

How can judges interact with government outside ordinary court cases?

Judges may chair inquiries into public power, public bodies, and public law decisions.

What legal advice roles connect government and law?

The Attorney General and Solicitor General.

How does Parliament regulate itself?

Parliament is self-regulating, and courts generally do not interfere.

Why do courts avoid interfering with Parliament?

Because Parliament is sovereign and protected by parliamentary privilege.

What legal source protects parliamentary privilege?

The Bill of Rights 1689.

What did R v HM Treasury, ex parte Smedley say about Parliament and the judiciary?

The legislature and judiciary are separate and independent, and each should avoid trespassing on the other’s province.

What does ex parte Smedley show?

It shows judicial sensitivity to the boundaries between courts and Parliament.

What does the case law show about separation of powers?

It does not disclose a consistent approach.

When may judges refuse to intervene?

They may refuse to fill gaps in Acts, take moral stances, or interfere with executive policy decisions.

When may judges take a more active role?

They may fill gaps in Acts, take moral stances, or intervene in executive policy decisions.

What is the best summary of separation of powers in the UK?

The UK has a partial separation of powers: Parliament and Government overlap, but judicial independence remains central to controlling power.