The Separation of Powers

What are the 3 branches

• Legislative

• Executive

• Judicial

separation of powers

• One of the two ‘great pillars of Western political thought’ – the other being ‘representative government’

• Three branches, that are distinct from one another in the powers they exercise, central to the doctrine

• Typical example: the US Constitution
  • Article I – Legislative power → Congress
  • Article II – Executive power → President
  • Article III – Judicial power → Courts
  • most countries do not fully adhere to the doctrine

WHY?

• separation of powers prevents tyranny and safeguards citizens’ libirities.

• it stops all the power going to one part of the government allowing there to be a less biased approach.

• prevents corruption

• Separation of powers →checks and balances

SEPARATION OF POWERS IN THE UK

• Until recently, has been much downplayed in the UK constitution:
  • Bagehot: “[t]he efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers”
  • Some commentators within the UK have called the current system an ‘elective dictatorship’

• In addition to why separation of powers matters, two other major questions need to be asked to understand situation in UK Constitution:
  1. To what extent are the three branches distinguishable?
  2. To what extent are the functions exercised separately in the UK?

To what extent are the three branches distinguishable?

• Legislative function
  • Westminster and devolved legislatures possess law-making authority
  • But not all new laws created by these, i.e. delegated legislation

• Executive function
  • Broad authority to govern
  • Historic break from monarchy to ministers and public authorities – the UK Central Government and
  devolved governments

• Judicial function
  • Resolve disputes in private and public law
  • Exercised in civil and criminal courts, and in tribunals

To what extent are the functions exercised separately in the UK?

• The branches exist separately but public often sees “no visible distinction” between Parliament and Government

• The separation and balance between branches not as clear-cut as in, e.g. US
  • Fire Brigades Union case (1995)
  • Home Secretary refused to bring in scheme to compensate victims of crime (Criminal Justice Act 1988, s 171(1)) – tantamount to repealing the Act
  • Can a Minister repeal an Act of Parliament in this way?
  • Should courts intervene in the matter?
  

• Majority (3-2) of the House of Lords held that Home Secretary had exceeded his powers
  • Majority: court can intervene in order to prevent executive usurpation of a legislative function
  • Dissenting: courts should not intervene, it is a matter for Parliament and the executive

• Displays how views can reasonably differ over how the proper separation of powers should be balanced

THE JUDICIAL BRANCH

• Independence of the judiciary requires strong separation between courts and the other branches

• Constitutional Reform Act 2005
  • Put the rule of law and judicial independence on statutory footing
  • Significant move towards a more defined separation of powers in the UK
  • Led to Alterations to Lord Chancellor’s position,
  • New Judicial Appointments Commission,
  • Elimination of Law Lords  new Supreme Court