Separation of powers
☁ SoP is a unique, equal, separate and political doctrine and explains how power is
used by the state.
☁ Montesquieu believed the SoP was to preserve liberty and prevent the abuse of
state power by distributing it amongst the different branches of government.
☁ Historically all power was in the hands of the Monarch which allowed them to abuse
their power. But now it’s now largely symbolic so doesn’t impact on the overall
division of power within the state.
☁ Now power has been divided between a number of key ‘organs of state’. They
oversee each other and have to work together to achieve their objectives. This
serves to stop abuse of power by any member of the state.
☁ Usually there is conflict between the various organs, particularly the executive and
the judiciary.
☁ USA- has a very rigid separation of powers between the organs of the state.
☁ The… ‘three separate organs--Congress, the President, and the courts--perform the
three distinct functions of government, and neither the President, nor members of
his Cabinet and government, may sit in Congress.’ (Separation of powers and
constitutional government- Eric Barendt (1995)).
☁ UK- said to have ‘soft’ separation, so there is more flexibility which allows the organs
of the state to work together.
☁ Power in the UK is divided between the 3 organs of the state:
o Legislature (Parliament- HOC and HoL)- role is to make laws
o Executive (central government and the Crown)- role is formulate and
implement policy
o Judiciary (Judges and Courts)- role is to apply the law
☁ Ministers- members of the Cabinet (the executive) and also members of Parliament
(the legislature).
☁ Law Lords- until 2009, judges who sat in the Appellate Committee of the House of
Lords were also members of the upper chamber of the legislature. The
establishment of the Supreme Court was intended to remedy this situation, although
the Law Lords who became the first Supreme Court justices remain members of the
House of Lords. All new members though will be directly appointed by a selection
commission.
☁ The Lord Chancellor- was a member of all 3 organs of the state but role has changed
in recent years due to the Constitutional Reform Act (2005). The executive function
remains the same under the CRA (2005) only the other 2 functions have changed.
☁ The act made some important changes such as the creation of the Supreme Court
(reduced power of L). Also, the Lord Chancellor was replaced as head of judiciary
with the Lord Chief Justice (increase power of J). Many have argued that the Lord
Chancellor played an important role in communication between the various organs
of the state, whereas others have suggested a political bias to the role (Woodhouse
(2007)). These changes have gone to merely strengthening the independence of
judiciary.
, ☁ The Judicial Appointments Committee (JAC) was established which had the aim of
ensuring a more independent selection procedure for senior judges.
☁ The most important aspect of the SOP is the way in which they limit the other organs
of the state exceeding their powers. The most tension exists between the executive
and the judiciary.
o M v Home Office (1994) (conflict between the Executive and the Judiciary)-
M arrived in the Uk from Zaire claiming political asylum but his application
refused, he was ordered to be deported by the Home Secretary but the High
Court said they wanted to review his case first. The Home Secretary ignored
them and went ahead. The fact the he is the minister of the Crown doesn’t
place him above the law so the court could restrain him in the exercise of his
powers.
o R v Miller (2017) (conflict between the Executive and the Legislature)-
highlights the ongoing issue that undermines the sop doctrine. E (labour
government) needed to pass primary legislation in order to go forward with
the process of exiting the European Union.
o Anderson (2003) (conflict between the Executive and the Judiciary)- D was
convicted of 2 murder, the trial judge gave him 15 years at least and the
Home Secretary said 20 years at least. It was for the courts to set sentences
not ministers. This was a judicial function and the involvement of a politician
in the process contravened the right to a fair trial.
☁ The judicial power is the weakest of the three governmental powers in the UK
constitution. Lord Steyn has argued in order for the judiciary to uphold the rule of
law and to discharge its functions generally, it is imperative that it is independent of
the other 2 branches of government. S3 (1) CRA (2005) upholds this independence.
Overlap Executive (Government) Judiciary
with:
Legislature Bagehot (1876)- ‘nearly complete ✽ The HoL and the creation of the
(Parliament) fusion’ of the legislature and Supreme Court (The CRA 2005),
executive. So there’s least SOP as changed the role of the Lord Chancellor
there is large overlap. who used to be the head of Judiciary
The (increased) risk of dominance of and appointed judges.
the executive. ✽ Do judges make law? Parliament makes
Our electoral system is the main the law, the judiciary interpret them.
reason why the executive dominate (Lord Diplock in Duport Steel (1980))
the legislature. Causes an imbalance ✽ Malone v UK (1984)- Malone said his
between powers because it creates Article 8 rights had been breached,
an ‘in-built’ majority for the party because the police bugged his phone
which wins and forms the without lawful authority. Uk decision-
government in Parliament. found for MPC (Megarry VC: ‘it can
Delegated legislation- the executive lawfully be done simply because there
can pass whatever legislation they is nothing to make it unlawful’). In this
want without going through case, the court acknowledged the SOP.
☁ SoP is a unique, equal, separate and political doctrine and explains how power is
used by the state.
☁ Montesquieu believed the SoP was to preserve liberty and prevent the abuse of
state power by distributing it amongst the different branches of government.
☁ Historically all power was in the hands of the Monarch which allowed them to abuse
their power. But now it’s now largely symbolic so doesn’t impact on the overall
division of power within the state.
☁ Now power has been divided between a number of key ‘organs of state’. They
oversee each other and have to work together to achieve their objectives. This
serves to stop abuse of power by any member of the state.
☁ Usually there is conflict between the various organs, particularly the executive and
the judiciary.
☁ USA- has a very rigid separation of powers between the organs of the state.
☁ The… ‘three separate organs--Congress, the President, and the courts--perform the
three distinct functions of government, and neither the President, nor members of
his Cabinet and government, may sit in Congress.’ (Separation of powers and
constitutional government- Eric Barendt (1995)).
☁ UK- said to have ‘soft’ separation, so there is more flexibility which allows the organs
of the state to work together.
☁ Power in the UK is divided between the 3 organs of the state:
o Legislature (Parliament- HOC and HoL)- role is to make laws
o Executive (central government and the Crown)- role is formulate and
implement policy
o Judiciary (Judges and Courts)- role is to apply the law
☁ Ministers- members of the Cabinet (the executive) and also members of Parliament
(the legislature).
☁ Law Lords- until 2009, judges who sat in the Appellate Committee of the House of
Lords were also members of the upper chamber of the legislature. The
establishment of the Supreme Court was intended to remedy this situation, although
the Law Lords who became the first Supreme Court justices remain members of the
House of Lords. All new members though will be directly appointed by a selection
commission.
☁ The Lord Chancellor- was a member of all 3 organs of the state but role has changed
in recent years due to the Constitutional Reform Act (2005). The executive function
remains the same under the CRA (2005) only the other 2 functions have changed.
☁ The act made some important changes such as the creation of the Supreme Court
(reduced power of L). Also, the Lord Chancellor was replaced as head of judiciary
with the Lord Chief Justice (increase power of J). Many have argued that the Lord
Chancellor played an important role in communication between the various organs
of the state, whereas others have suggested a political bias to the role (Woodhouse
(2007)). These changes have gone to merely strengthening the independence of
judiciary.
, ☁ The Judicial Appointments Committee (JAC) was established which had the aim of
ensuring a more independent selection procedure for senior judges.
☁ The most important aspect of the SOP is the way in which they limit the other organs
of the state exceeding their powers. The most tension exists between the executive
and the judiciary.
o M v Home Office (1994) (conflict between the Executive and the Judiciary)-
M arrived in the Uk from Zaire claiming political asylum but his application
refused, he was ordered to be deported by the Home Secretary but the High
Court said they wanted to review his case first. The Home Secretary ignored
them and went ahead. The fact the he is the minister of the Crown doesn’t
place him above the law so the court could restrain him in the exercise of his
powers.
o R v Miller (2017) (conflict between the Executive and the Legislature)-
highlights the ongoing issue that undermines the sop doctrine. E (labour
government) needed to pass primary legislation in order to go forward with
the process of exiting the European Union.
o Anderson (2003) (conflict between the Executive and the Judiciary)- D was
convicted of 2 murder, the trial judge gave him 15 years at least and the
Home Secretary said 20 years at least. It was for the courts to set sentences
not ministers. This was a judicial function and the involvement of a politician
in the process contravened the right to a fair trial.
☁ The judicial power is the weakest of the three governmental powers in the UK
constitution. Lord Steyn has argued in order for the judiciary to uphold the rule of
law and to discharge its functions generally, it is imperative that it is independent of
the other 2 branches of government. S3 (1) CRA (2005) upholds this independence.
Overlap Executive (Government) Judiciary
with:
Legislature Bagehot (1876)- ‘nearly complete ✽ The HoL and the creation of the
(Parliament) fusion’ of the legislature and Supreme Court (The CRA 2005),
executive. So there’s least SOP as changed the role of the Lord Chancellor
there is large overlap. who used to be the head of Judiciary
The (increased) risk of dominance of and appointed judges.
the executive. ✽ Do judges make law? Parliament makes
Our electoral system is the main the law, the judiciary interpret them.
reason why the executive dominate (Lord Diplock in Duport Steel (1980))
the legislature. Causes an imbalance ✽ Malone v UK (1984)- Malone said his
between powers because it creates Article 8 rights had been breached,
an ‘in-built’ majority for the party because the police bugged his phone
which wins and forms the without lawful authority. Uk decision-
government in Parliament. found for MPC (Megarry VC: ‘it can
Delegated legislation- the executive lawfully be done simply because there
can pass whatever legislation they is nothing to make it unlawful’). In this
want without going through case, the court acknowledged the SOP.
