Separation of Powers (Strict formulation of the doctrine of the separation…
Separation of Powers
Strict formulation of the doctrine of the separation of powers entails the following:
No branch should exercise power over another branch.
No branch should exercise the power of another branch
No individual should be a member of more than one of the branches
Separation of Powers in the UK Constitution
NO, in its purest sense, there is no strict or total separation of powers.
Broad overlap between the legislature and executive.
The English Constitution)
"A close union, and an almost complete fusion of legislative and executive power"
- "Elective dictatorship"
When there is a large majority in Parliament, then Bills and Policies that the government wishes to pass will be quiet easy to do so.
PM and members of the cabinet are drawn from Parliament and are acting MP's. (Individuals members of more than one branch)
Courts make law in the sense that they develop principles of the common law.
Government ministers exercise legislative function in delegated legislation.
Mechanisms to mitigate the fusion of power
House of Lords
Legislature and Judiciary
Parliament is sovereign, and the supreme law maker in the country.
Parliament can pass and get rid of any Act of Parliament, with no question.
This does adhere to the SoP
Law-making ability stays in one insitution.
Courts can only interpret the law made by Parliament
This does NOT adhere to the SoP
Parliament can pass laws influencing and affecting how the courts work.
Burmah Oil v Lord Advocate
Parliament law making abilities used to interfere and change the results of cases that judges have heard.
Executive and Judiciary
Does the UK adhere to the Separation of Powers
Though the UK Constitution is largely unwritten, it is firmly based on the separation of powers; Parliament makes laws, the judiciary interpret them.
Peculiar British conception of the separation of powers. The executive, legislature and judiciary have their own distinct and largely exclusive domain.
Professor S A de Smith
No writer of repute would claim that (the Separation of Powers) is a central feature of the modern British constitution"
Partial Separation of Powers
Balance of effective governance, checks and balances, and avoiding over-concentration of power.
Pure version of the doctrine is unrealistic
NOT A QUESTION OF DOES IT HAVE/NOT HAVE SEPARATION, QUESTION IS TO WHAT EXTENT
Fire Brigades Union Case
:red_flag: (differing opinions on the SoP)
Home Secretary refused to exercise their power under an Act of Parliament to bring into force a new scheme (contained elsewhere in the statute) for compensation
3/2 majority in HoL
All reached different conclusions in in reference to the separation of powers.
Majority: Willing to interfere in order to prevent executive usurpation of a legislative function.
Dissenting: Considered it innapropriate for courts to intervene in the matter because they believed it was a political issue, which could be resolved by the Parliament and executive.
Courts contravening in the Separation of Powers by interfering in a matter outside of their scope.
Defining the Theory
Threefold Separation/Classification of Powers
Separation of Power to preserve liberty and prevent the abuse of power
The Spirit of the Laws)
Checks and Balances