DISCLAIMER: all information in these module reviews are taken from our own notes and research so please do not cite this in your work. This summary also includes notes from my course provided textbook, 'Constitutional and Administrative Law' by Roger Masterman and Colin Murray.
Welcome to the fourth instalment of our Module Reviews!
In January leading into February, the focus will be on Public Law. For today's review, the topic featured is 'Separation of Powers'. This is quite a short topic compared to the other ones we have covered so this summary will not be as long as the others, but there is still plenty of important points relating to the topic in this review! I have also included quotes from various academics and legal theorists on this topic to help substantiate the facts with opinions.
The Basics
In its most basic form, the separation of powers is the idea that the major state institutions should function independently. This means the legislative, executive, and judicial branches are separate from each other in their function and make-up. Let's look at the make-up of these three entities:
Legislative branch: this branch consists of Parliament (the House of Commons and the House of Lords). For a more in-depth assessment of Parliament, please see this previous module review for the roles and functions. In its most basic form, Parliament is the law-making body of the UK.
Executive branch: this branch consists of government, meaning the Prime Minister and their Cabinet. The Executive implements the laws passed by Parliament and the policies of the government.
Judicial branch: as you can imagine, this branch consists of the courts, both civil and criminal. The role of the judicial branch is to interpret legislation and enforce the laws of the land.
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers." - Montesquieu, 1748.
Why do we have separation of powers?
The separation of powers exists in the UK to provide a vital system of 'checks and balances'. For example, creating a system whereby each institution is separate makes all of these institutions accountable to each other as it ensures they each control each other. In this way, each branch is able to perform its own functions without the interference of the other branches, however the system of 'checks and balances' makes sure no one institution becomes more 'powerful' than the other.
A research briefing by Benwell and Gay also noted how this system of 'checks and balances is vital for ensuring the safeguard of liberties and protection from tyranny.
"[I]t may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage ..." - John Locke (1690).
The Constitutional Reform Act 2005
The Constitutional Reform Act of 2005 was a huge development in enforcing the importance of the separation of powers doctrine.
Prior to the Act, the highest court in the UK was the House of Lords, where the judges that sat there were referred to as 'Law Lords'. You will know from our previous module review that the House of Lords is an institution of Parliament (the legislative branch). Given the separation of powers doctrine, it seems slightly contradictory that the highest domestic court in the land was a House of the legislative branch.
The Constitutional Reform Act as such created what we now know as the Supreme Court and abolished 'Law Lords' altogether. This thus ended the judicial role of the House of Lords as the highest appeal court in the UK. In the explanatory notes of the Act, it was noted that the purpose of this piece of legislation was to make 'a distinct constitutional separation between the legislature and the judiciary'. We therefore see this Act as an exceptionally important modern step in furthering the separation of powers doctrine.
An important point to note is that while this Act was brought into force in 2005, the Supreme Court began sitting in 2009.
"The important question, therefore, is not whether the UK adheres to a pure conception of the separation of powers (it manifestly does not), but whether its institutions of government are organised in such a way as to guard satisfactorily against the abuse of power." - Elliot and Thomas (2017).
Comments