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Separation of powers

Previous: Constitutions

Public powers are divided in the UK, into the legislature, the executive and the judiciary. These are the law making, law implementing and law adjudicating bodies respectively. The idea of separating powers comes about through the preservation of democracy and has been altered regularly within the past 3 centuries.

Historic (non) separation of powers

Courtesy of the Tudor monarchs, prior to 1700, power was extensively given to the executive; the monarchs themselves. The monarchs could interfere all 3 divisions of power. In 1689, the Bill of Rights severely limited the executive’s powers such that the Act of Settlement 1700 could start the separation.

Act of Settlement 1700

The act outlined the succession to the crown, requiring, inter alia, that monarchs must be of the Church of England Christian faith and could not pardon members of the Commons against impeachment claims.

R v Home Secretary ex parte Fire Brigades’ Union [1995]

This case prevented the executive acting contrary to the legislature.

M v Home Office [1994]

This case showed that an injunction could be ordered against a minister for ignoring a judicial review report.

Constitutional Reform Act 2005

The act ensured the independence of the judiciary. It set up the Supreme Court, moving the judicial law lords away from the legislative House of Lords. The Act also established a judicial appointments commission and a judicial appointments and conduct ombudsman.

Advantages of the separation of powers

Ensuring separation between powers opposes the concentration of power in a single party, which would threaten democracy. It maintains liberty and restrains the government in abusing their power. John Locke said that it would be “too great a temptation to human frailty…for the same persons who have the power of making laws to have the power to execute them.”

Not a true separation of powers

There are a number of ways in which the three powers interfere with each other, which arguably could threaten the idea of democracy in the UK:

  • The judiciary creates “common law”, not the legislature
  • Prior to the Constitutional Reform Act 2005, the Lord Chancellor was involved in all three functions
  • The Prime Minister and the Cabinet, executive bodies, are heavily involved in the legislature
  • There is no limit on delegated legislation
  • The executive appoint judges

The aim with separation of powers is to not overpower any single group, and even with these potential inconsistencies, the system currently works.

Next: Rule of law

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