Total Mark for ELS coursework: 78/100.
“The debate as to whether or not there is a separation of powers in the UK
constitution has…led to the establishment of two opposing camps. In the first of
these camps can be placed the academic writers on constitutional law. The
general consensus amongst them is that there is no separation of powers…In
the opposing camp are the judiciary. On numerous occasions, senior judges
have expressed the opinion that the UK constitution is based on a separation of
powers.”
Neil Parpworth, Constitutional & Administrative Law (10th edn, OUP 2018), 26
Critically evaluate the views of the ‘opposing camps’ referred to by
Parpworth.
Within your answer, please ensure that you locate at least one example of
statute and one example of case law from the period 2018 to 2023
inclusive in support of your arguments.
1
, Module ECN
Word Count 2,497 words
“The debate as to whether or not there is a separation of powers in the UK constitution
has…led to the establishment of two opposing camps. In the first of these camps can be
placed the academic writers on constitutional law. The general consensus amongst them
is that there is no separation of powers…In the opposing camp are the judiciary. On
numerous occasions, senior judges have expressed the opinion that the UK constitution
is based on a separation of powers.”
Neil Parpworth, Constitutional & Administrative Law (10th edn, OUP 2018), 26
Critically evaluate the views of the ‘opposing camps’ referred to by Parpworth.
Within your answer, please ensure that you locate at least one example of statute
and one example of case law from the period 2018 to 2023 inclusive in support of
your arguments.
Contents
Introduction.......................................................................................................................3
The Separation of Powers and the Constitution of the UK...............................................3
Legislature and Executive.................................................................................................4
Legislature and Judiciary...................................................................................................6
Executive and Judiciary.....................................................................................................8
Conclusion.........................................................................................................................9
Bibliography....................................................................................................................10
2
, Introduction
The separation of powers is a political theory that can arguably be said to have ancient
Aristotelian origins 1 ; its contemporary conception, however, is most notably attributed
to the French judge and philosopher, Montesquieu. Significantly, the doctrine is a
political one, not legal, but to correctly address the question of ‘whether or not there is a
separation of powers in the UK constitution’ it is necessary to take account of both
dimensions 23
. Parpworth’s statement purports the existence of ‘two opposing camps’,
the first is made up of constitutional law academics who argue that ‘there is no
separation of powers’, and the second, of the judiciary who maintain the ‘constitution is
based on’ the doctrine; as this essay is focused on evaluating their views and not their
compositions, it will assume that these ‘camps’ exist as described by Parpworth. The
essay will lean in favour of the views of the first camp and, as such, will begin by
defining and considering the purpose of the doctrine and then will critically evaluate its
relevance to UK constitution by considering some key aspects of the relationships
between the three branches of the state as described by Montesquieu.
The Separation of Powers and the Constitution of the UK
The separation of powers has been interpreted in different ways; this essay will broadly
adopt the definition purported by Montesquieu’s The Spirit of the Laws but will qualify
it by considering the unique uncodified nature of the UK constitution . The doctrine
dictates that the efficient democratic state is composed of three core branches -
executive, legislative and judicial - and that each of these institutions must exercise their
respective powers independent of the intrusion of the others.
Montesquieu argued that the concentration of these powers in the hands of the same
authority would necessarily lead to an arbitrary exercise of state powers and impinge on
the individual liberties of the citizen. It would give the state the power to create, enact
and judge citizens by the law in whatever manner suited its political whims 4.
Montesquieu’s definition assumes that all three branches of the state must be equals in
power; this is not a practical arrangement within the constitution of the UK which is
better understood to have a ‘pecking order’ as explained by Lord Neuberger – in the
1
Neil Parpworth, Constitutional and Administrative Law (12th edn, OUP 2022) 19.
2
Ibid.
3
John Stanton and Craig Prescott, Public Law (3rd edn, OUP 2022) 44.
4
Montesquieu, L’Esprit des Lois, Book 11 (1748) Ch 6.
3
“The debate as to whether or not there is a separation of powers in the UK
constitution has…led to the establishment of two opposing camps. In the first of
these camps can be placed the academic writers on constitutional law. The
general consensus amongst them is that there is no separation of powers…In
the opposing camp are the judiciary. On numerous occasions, senior judges
have expressed the opinion that the UK constitution is based on a separation of
powers.”
Neil Parpworth, Constitutional & Administrative Law (10th edn, OUP 2018), 26
Critically evaluate the views of the ‘opposing camps’ referred to by
Parpworth.
Within your answer, please ensure that you locate at least one example of
statute and one example of case law from the period 2018 to 2023
inclusive in support of your arguments.
1
, Module ECN
Word Count 2,497 words
“The debate as to whether or not there is a separation of powers in the UK constitution
has…led to the establishment of two opposing camps. In the first of these camps can be
placed the academic writers on constitutional law. The general consensus amongst them
is that there is no separation of powers…In the opposing camp are the judiciary. On
numerous occasions, senior judges have expressed the opinion that the UK constitution
is based on a separation of powers.”
Neil Parpworth, Constitutional & Administrative Law (10th edn, OUP 2018), 26
Critically evaluate the views of the ‘opposing camps’ referred to by Parpworth.
Within your answer, please ensure that you locate at least one example of statute
and one example of case law from the period 2018 to 2023 inclusive in support of
your arguments.
Contents
Introduction.......................................................................................................................3
The Separation of Powers and the Constitution of the UK...............................................3
Legislature and Executive.................................................................................................4
Legislature and Judiciary...................................................................................................6
Executive and Judiciary.....................................................................................................8
Conclusion.........................................................................................................................9
Bibliography....................................................................................................................10
2
, Introduction
The separation of powers is a political theory that can arguably be said to have ancient
Aristotelian origins 1 ; its contemporary conception, however, is most notably attributed
to the French judge and philosopher, Montesquieu. Significantly, the doctrine is a
political one, not legal, but to correctly address the question of ‘whether or not there is a
separation of powers in the UK constitution’ it is necessary to take account of both
dimensions 23
. Parpworth’s statement purports the existence of ‘two opposing camps’,
the first is made up of constitutional law academics who argue that ‘there is no
separation of powers’, and the second, of the judiciary who maintain the ‘constitution is
based on’ the doctrine; as this essay is focused on evaluating their views and not their
compositions, it will assume that these ‘camps’ exist as described by Parpworth. The
essay will lean in favour of the views of the first camp and, as such, will begin by
defining and considering the purpose of the doctrine and then will critically evaluate its
relevance to UK constitution by considering some key aspects of the relationships
between the three branches of the state as described by Montesquieu.
The Separation of Powers and the Constitution of the UK
The separation of powers has been interpreted in different ways; this essay will broadly
adopt the definition purported by Montesquieu’s The Spirit of the Laws but will qualify
it by considering the unique uncodified nature of the UK constitution . The doctrine
dictates that the efficient democratic state is composed of three core branches -
executive, legislative and judicial - and that each of these institutions must exercise their
respective powers independent of the intrusion of the others.
Montesquieu argued that the concentration of these powers in the hands of the same
authority would necessarily lead to an arbitrary exercise of state powers and impinge on
the individual liberties of the citizen. It would give the state the power to create, enact
and judge citizens by the law in whatever manner suited its political whims 4.
Montesquieu’s definition assumes that all three branches of the state must be equals in
power; this is not a practical arrangement within the constitution of the UK which is
better understood to have a ‘pecking order’ as explained by Lord Neuberger – in the
1
Neil Parpworth, Constitutional and Administrative Law (12th edn, OUP 2022) 19.
2
Ibid.
3
John Stanton and Craig Prescott, Public Law (3rd edn, OUP 2022) 44.
4
Montesquieu, L’Esprit des Lois, Book 11 (1748) Ch 6.
3
