Separation Of Powers Notes

• Three branches of government keep each other in check, ensuring there is never an over-concentration of power:

  • Legislature – Parliament. Their function is to pass legislation.

  • Executive – Government. They govern – make policy decisions and enacts legislation of the legislature. Executive power also exists in EU and devolved parliaments/assemblies.

  • Judiciary – the courts. Interpret and rule upon legal disputes.

Why embrace the separation of powers?

• Reduces risk of power being abused. Too much power in one person is dangerous. “The accumulation of all powers…in the same hands…may justly be pronounced the very definition of tyranny” – James Madison

• Mutually reinforcing democracy.

• Allows different functions to be assigned to those most suited to carry out those functions. Areas of expertise. No conflicts of interest in exercising role.

Conceptions of the separation of powers:

• Pure view envisages absolute independence. No branch has power over another and nobody can be a member of more than one branch.

• In reality there is often some overlap, which may be a good thing. The partial version is justifiably, so long as the breach of the separation is in the interest of the philosophy. The framers of the US Constitution intended that the branches ‘by their mutual relations be the means of keeping each other in their proper places’. Most countries have at least a recognisable partial version of the separation of powers.

Separation of powers in the UK:

• Bagehot: “the close union, the nearly complete fusion, of the executive and legislative powers”

• Some argue that the UK has a ‘fusion of powers’, largely facilitated by executive/legislative overlap:

  • Party who makes up government also have a majority in the House of Commons. They get their legislation through without much scrutiny.

• But if the rationale behind the separation of powers is upheld, it doesn’t really matter if there is no strict separation. So the question really is: is there a sufficient separation of powers so at to prevent abuse of power?

• It’s a balancing act between sufficient separation and enough overlap so as to allow effective scrutiny

• Efforts have been made recently to make the separation of powers more clear:

  • Introduction of the Supreme Court (instead of HoL appellate committee, which looked suspiciously like a part of the legislature)

  • Changing of the remit of the role of Lord Chancellor in 2005

  • Increased transparency in judicial selection (as opposed to old boys’ network, which is what it seemed to be before).

  • Home Sec no longer sets tariff for young offenders

• But many of these changes have gone to merely strengthening the independence of judiciary. This isn’t what we need to be worrying about, it’s the fusion between legislative and executive branches, and the lack of accountability of the executive:

  • Passing whatever legislation they want

  • Using prerogative powers in unjustifiable ways

  • Henry VIII clauses allow ministers to make secondary legislation/amendment to an Act without Parliament’s approval.

• R v Home Sec ex p Fire Brigades Union – D refused to bring into force provisions in an Act of Parliament to compensate fire fighters. The Act allowed him to use his discretion in when they were enacted. Instead of enacting them, he implemented his own less generous system, effectively repealing an Act of Parliament. By a 3-2 majority D was found to have acted ultra vires because only Parliament can repeal its own acts. The dissenters argued that the matter was still a political one because the legislation was not yet fully enacted.

  • The court drew a dividing line between the executive and the legislative branches.

The Judiciary

• Judiciary is structured as a hierarchy with SC at the top, but also on subject matter: criminal, civil and administrative.

• Administrative is concerned with challenging public decisions, either in the form of judicial review or in the form of a tribunal hearing. QB deals with judicial review.

• Privy Council for the Isle of Man, overseas territories etc.

Role of the judiciary:

• Exists to resolve legal disputes, through findings of facts and identification of relevant legal principles (note that appellate courts do no concern themselves with facts). They then apply the law to the facts.

  • This seems mechanical. In may ways it is not – it can be rather politicised, but not so much as is seen in the US.

• The court has coercive powers to enforce its judgements.

• They don’t just resolve disputes between individuals, but public authorities and governments etc. as well.

• Growing tension between judiciary and executive as judicial review appeals rise.

The courts and the constitution:

• When reviewing the decision/conduct of a public body, the court will ensure that the correct legal standards were adhered to – scrutiny. This acknowledges that the relationship between the individual and the state is an unequal one and the court must protect people’s interests.

• But note that the court is constrained by Parliamentary sovereignty.

• They don’t only resolve disputes but look prospectively, through precedent – and by having people modify behaviour that may be considered unlawful. It is an ‘advisory declaration’ that takes the role of the court outside of live dispute and ruling on future affairs.

Judicial lawmaking and the separation of powers:

• Courts add to the law when they interpret legislation, because they set the boundaries – although the wording of the statute restricts them.

• Hart says that legal rules are ‘open textured’ and will contain a penumbra of uncertainty – the court deal with this.

• With s.6 HRA now in place, and ECA 1972, the courts may sometimes completely change legislation to make it compatible with EU law.

  • Such legislation by the judiciary is improper under the pure view of the separation of powers, but provided it is in the spirit of the doctrine and they are sufficiently restricted (by the words of the statute) it is tolerable.

  • If there is dissatisfaction with the...

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