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Separation Of Powers Notes

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A more recent version of these Separation Of Powers notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Con & Ad: Separation of Powers Introduction

- Crux: not much formal SOP in UK, but how much practical adherence to theory?

- Prima facie: lack of formal SOP in UK constitution - esp. between executive + legislature. no formal SOP: uncodif ied constitution, due to historical development (cf. France, USA); overlaps (e.g. Queen: head of all 3 branches).
[Ld Hailsham]: 'elective dictatorship' - legislature effectively controlled by executive.
[Barendt]: 'no effective SOP between legislature + executive in the system of checks + balances.'.
[De Smith & Brazier]: 'no writer of repute would claim that SOP is a central feature of the modern British Constitution' (BUT: formalistic view).
[Prof Hood Phillips]: 'constitutional myth'.

- BUT: in practice, some adherence - esp. effective separation of judiciary from other 2 branches. practical SOP:

1. statutes + conventions.

2. judicial independence. strengthened by recent developments:

1. growth of judicial review (esp. after GCHQ).

2. evolution of substantive rule of law.

3. HRA 1998.

4. A & Others (2004)

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