(3) Separation of Powers

Question 1

How does the separation of powers seek to divide governmental power?

Answer 1

The constitutional doctrine of separation of powers seeks to divide governmental power between three branches of government;

1. The legislature
2. The executive
3. The judiciary

Question 2

What is the broad aim of the separation of powers?

Answer 2

To prevent arbitrary and oppressive governments and to promote efficiency.

Question 3

What may occur if there were no separation of power?

Answer 3

If all governmental functions were exercised by one individual – say the Prime Minister – said person would have unfettered power to design, implement and cast judgement over legislation. While such a situation may create a degree of simplicity that the UK constitution in it’s current form perhaps lacks, it would also facilitate arbitrary and oppressive regimes. Indeed, such an arrangement would almost certainly result in a dictatorship.

Question 4

How important is the separation of powers to the idea of constitutionalism?

Answer 4

It’s a cornerstone of liberal democracies, it has been suggested that any state that were to offend the doctrine by granting unfettered governmental power to the holder of one office may be considered not to have a ‘constitutional’ system at all – see Article 16 of the French Declaration of the Rights of Man.

Question 5

What did Eric Barendt say about the importance of the separation of powers to the idea of constitutionalism?

Answer 5

Eric Barendt neatly encapsulated the idea when he said ‘the separation of powers in some form is arguably the essence of constitutionalism’.

Question 6

What are the two key approaches to the separation of powers doctrine?

Answer 6

1. The Pure Approach

2. The Partial Approach

Question 7

Who introduced the idea of a separation of powers into English Political thought?

Answer 7

John Locke, in the late seventeenth century when he spoke of ‘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’.

Question 8

What are the two main aims of the separation of powers doctrine?

Answer 8

1. A restraint on governmental power – through avoidance of concentration of power and empowering each branch to restrict the actions of the others
2. Promotion of the efficiency of government – through the allocation of specific governmental functions to the branch best equipped to deal with them

Question 9

What did Barednt think about the two key aims of the separation of powers?

Answer 9

He downplayed the significance of this second efficiency aim, emphasising instead the avoidance of tyrannical power (aim 1) as being the primary goal.

Question 10

What was Montesquieu’s position on the aims of the separation of powers?

Answer 10

Like Barendt he emphasised the importance of the aim to restrain government power primarily - There would be an end to everything, if the same man, or the same body, whether of the nobles or of the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual cases’.
He also identified a further value to the separation of powers doctrine, suggesting it reduced the perception that laws were administered in a partial or predetermined manner.

Question 11

What was James Madison’s perception of the separation of powers doctrine?

Answer 11

He, like Montesquieu, saw the separation of powers as as one of the hallmarks of a liberal constitution and an ‘essential precaution in favour of liberty’.

Question 12

Why are there two different interpretations of the separation of powers?

Answer 12

There is a disagreement over the extent to which governmental powers should be separated in practice.

Question 13

What is the pure theory of separation of powers?

Answer 13

A separation of powers theory that advocates a complete separation of the personnel and functions of government institutions.

Question 14

What are the two key components to the separation of powers theory?

Answer 14

1. Institutional Separation

2. Functional Separation

Question 15

What is an example of a pure institutional separation of powers?

Answer 15

An illustration of pure institutional separation can be found in Articles I, II and III of the US Constitution. Here legislative power is vested in Congress, executive power in the President and judicial power in the Supreme Court.

Question 16

On what grounds is the US Constitution accused of being in breach of the pure theory of separation of powers?

Answer 16

The ability of the Supreme Courts to conduct judicial review and strike down legislation found to be in breach of the constitution for instance, allows the judicial branch to interfere with the legislative autonomy of Congress.

Question 17

How does the pure theory seek to protect liberty and restrict government power?

Answer 17

According to the pure theory the institutional and functional separation of powers between the three branches of government is sufficient to safeguard liberty and prevent oppressive or arbitrary governments.

Question 18

What is the criticism levelled at the pure theory in terms of limiting government power?

Answer 18

The approach of the pure theory means that each institutions decisions are immune to challenges from the other branches – the power is dispersed but also insulated within each branch. Therefore, the pure theory seems to create a system in which the concentration of unfettered power is in not just one branch but three.

Question 19

What is the partial separation of power theory?

Answer 19

An approach to the separation of powers that says each branch of government should check and balance the powers of the other institutions of government.

Question 20

How does the partial separation theory differ from the pure theory?

Answer 20

This theory suggests that each branch should be able to exercise a degree of influence over the powers of the other branches. According to this approach the political and legal autonomy of one branch may be legitimately limited by one or more of the other branches.

Question 21

What was Madison’s view on the partial separation of power approach?

Answer 21

Madison supported this view, suggesting that liberty would be better protected were the branches able to exercise coercive power over one another. Indeed, Madison rejected the ideas of complete independence and instead promoted the sort of thinking that is now known as checks and balances.

Question 22

What is an example of a constitutional arrangement based on checks and balances?

Answer 22

This can be seen in the arrangements of the US Constitution where each branch has a degree of discretion to influence the power/decisions of others. The ability of one branch to control or influence the activities of another is therefore seen as being central, rather than antithetical, to the partial separation theory.

Question 23

What is the relationship between the separation of powers and rule of law doctrines?

Answer 23

They are mutually supportive doctrines. They both seek to protect the individuals right to liberty and prevent the development of oppressive governments, however, the key distinction lies in the fact that the separation of powers prescribes specific measures to ensure this – dividing and allocating specific powers between the various branches – while the rule of law is more vague – prescribing characteristics of ‘good law’.

Question 24

In the UK system which bodies exercise the powers associated with the three key branches of government?

Answer 24

Parliament - legislative
Government - executive
Judiciary - judicial

Question 25

What is a criticism of the way the various powers are associated with different institutions?

Answer 25

Criticisms are levelled at the separation of powers theories for suggesting that various powers can neatly be allocated to one of these institutions – it is rarely this clear cut.

Question 26

In the UK what is the role of the executive branch?

Answer 26

In the UK the executive branch – the government – administer the day-day business relating to the management of the state. Their role, as stated by Bagehot, is to ‘rule the nation’.

Question 27

What actions may be included in the role of the executive?

Answer 27

• Executing or enforcing of the criminal and civil law (Policing, CPA etc)
• Maintenance of law and order
• Design of public policy for the running of the state
• Defence of the realm
• Conduct of international relations

Question 28

Who comprises the executive in the UK?

Answer 28

The executive is comprised of the cabinet, headed up by the PM, and ministers responsible for the discharge of the functions of central government. Also part of the executive are officers of the state who exercise functions of behalf of the government – civil service, police, armed forces etc.

Question 29

Who makes up the legislative branch in the UK?

Answer 29

In the UK it is Parliament that constitutes the legislative branch, it in turn is made up of the House of Commons, House of Lords and the Queen in Parliament. Practically, however, Parliament could be said to be bicameral – the House of Commons and Lords.

Question 30

Who makes up the House of Commons in the UK?

Answer 30

It is made up of 650 directly elected MPs.

Question 31

How does the House of Commons represent an infringement of the separation of powers?

Answer 31

It is from the House of Commons that the majority of the Cabinet are drawn. Immediately there is an overlap of personnel between the legislative and executive branches in the UK.

Question 32

What did Bagehot say about the infringement of the separation of powers by the UK Constitution?

Answer 32

Bagehot remarked on the issue, however, that this ‘nearly complete fusion of the executive and legislative powers’ should be regarded as the ‘efficient secret’ of the constitution.

Question 33

What is the significance of the fusion of the legislative and executive branches in the UK?

Answer 33

It is a hallmark of the UKs system of government, and while according to Bagehot it improves efficiency, it does create difficulty when making principled applications of the separation of powers doctrine.

Question 34

Who makes up the House of Lords in the UK?

Answer 34

The House of Lords is not elected by popular vote and is made up of a number of different types of peer – most are appointed by the monarch following recommendations by the main political parties.

Question 35

What is the structure of the judiciary in the UK?

Answer 35

Established in 2009, the highest court in the judicial branch of government is the supreme court. Beneath this lies the court of appeal and beneath this the high court. Some cases may progress from domestic court structures to the ECHR or (at least for now) the Court of Justice for the European Union.

Question 36

What roles does the judicial branch perform within the constitution?

Answer 36

1. Interpret and apply the law as passed by parliament or developed through past judicial decisions (statute and common law)
2. Adjudicate over criminal proceedings as the independent arbiter
3. Adjudicate over civil proceedings – applying the relevant case law

Question 37

What did Lord Mustill suggest in the Fire Brigades Union Case?

Answer 37

He suggested that the function of the branches of government in the UK are fairly self-evident and uncontroversial – the legislator (parliament) make law, the executive (government) administer it and the judiciary (courts) adjudicate over it.

Question 38

Is the division of government functions as clear as Mustill suggests?

Answer 38

No, for instance, the legislator has functions beyond simply making the law. Indeed, Parliament also scrutinise and endorse (or otherwise) the activities of the executive branch. Without Parliamentary support may of the proposals made by the executive will not come into force.

Question 39

What did Bagehot say about the broader powers of Parliament?

Answer 39

Bagehot acknowledged such a situation, remarking ‘[t]he legislature chosen, in name, to make laws, in fact finds its principal business in making and keeping an executive’.

Question 40

How has the overlap of government functions led to criticisms of the separation of powers theory?

Answer 40

Some writers criticised the separation of powers theory for being misrepresentative or misaligned to the practical reality of systems. Indeed, some suggest the theory lacks coherence as a result.

Question 41

What did Ivor Jennings say about the overlap of government functions?

Answer 41

Ivor Jennings criticised the separation of powers theory on this ground – arguing that no principled line could be drawn between what governmental activities could be called executive, legislative or judicial.

Question 42

How does delegated legislation create further overlap between the legislative and executive branches?

Answer 42

Given the time constraints applicable to Parliament Primary legislation often provides only a broad framework or overview for legislation – clauses are then inserted enabling ministers to fill out the remaining details. These rules or regulations introduced by ministers providing more depth and detail to the Act are known as delegated legislation.

Question 43

What is the first means of limiting the law-making power of the executive through delegated legislation?

Answer 43

1. The Statutory Instruments Act 1946 sets out two procedural requirements for delegated legislation that enable parliamentary scrutiny of the legislative process.
   (1) Affirmative Resolution Procedure – statutory instruments will not come into effect until endorsed by a parliamentary majority within 40 days.
   (2) Negative Resolution Procedure (more common) – a statutory instrument will come into force unless there are Parliamentary objections within 40 days of the instrument being laid before Parliament.

Question 44

What is the second means of limiting the law-making power of the executive through delegated legislation?

Answer 44

2. The power to create delegated legislation gives ministers broad powers but fails to equip them with the power of the sovereign legislature – thus products of ministerial law making don’t hold the same normative status as Acts of Parliament. Thus delegated legislation that is ultra vires (outside) the power of the enabling Act of Parliament (the relevant clause) can be struck down by the courts (unlike Acts of Parliament).

Question 45

Is the overlap caused by delegated legislation tolerable according to the separation of powers theory?

Answer 45

Overall, delegated law-making is generally regarded as tolerable because of the three means of limitation to it;

• Statutory Instruments Act
• Ability of the Courts to strike it down where it is ultra vires the original Act of Parliament
• Convention that secondary legislation should not concern ‘great issues of principle’

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Question 51

How does the common law system create overlap between the role of the legislative and judiciary?

Answer 51

Some may suggest that through their development of the common law judges are exercising a sort of law-making function.

Question 52

What makes the law-making power of the judiciary more tolerable?

Answer 52

Unlike the theoretically unlimited power of parliament to make law the powers of judges to make law through their decisions are greatly restricted. Any changes made will be done so incrementally and there is an awareness, particularly on the part of judges, that the common law is not the place for wholesale legal changes or developments. Furthermore, any changes that do occur will be subject to Parliamentary override.

Question 53

How did Lord Bingham discuss the law-making power of the judiciary in the case of Malone v Metropolitan Police Commissioner?

Answer 53

The law-making role of the courts was neatly summed up by Lord Bingham’s cricket analogy – ‘… the common law scores its runs in singles: no boundaries, let alone sixes. The common law advances … in small, cautious steps.’

Question 54

How else do the judiciary have the ability to make law?

Answer 54

Judicial creativity and law-making can also be observed through statutory interpretation – particularly in regards to s. 3(1) of the HRA which requires all statutory provisions to be interpreted compatibly with it ‘so far as possible’.

Question 55

Which case highlighted the law-making ability of the judiciary through interpretation?

Answer 55

In the case of Ghaidan v Godni-Mendoza Lord Nicholls recognised the ability of the courts, through statutory interpretation, to change the meaning and therefore effect of legislation.

Question 56

What do the overlaps between all three branches in regards to law-making power say about the separation of powers in the UK?

Answer 56

Given the apparent law-making powers of both the executive and the judiciary it appears that if any separation of powers exists in the UK Constitution, it is sufficiently fluid to permit a degree of institutional overlap and functional flexibility.

Question 57

What did Munro say about the categorisation of the respective functions to the various institutions of government?

Answer 57

Unlike Jennings he said such categorisations may be possible - ‘the legislative activity involves the enactment of general rules … the executive function is harder to define, but includes actions taken for the maintenance of order … The judicial function involves the determination of issues of fact and the interpretation of the law’.

Question 58

Given the overlap between the functions of the UK government institutions, how can it be decided which institution should exercise each power?

Answer 58

A separation of functions must be underpinned by an allocation of those functions to the institutions expected to exercise them. Barendt argued, however, that in cases of uncertainty as to which institution should be responsible for a given function ‘[w]hat is crucial’ is that the courts ‘are entitled to take the final decision whether in practice a function is to be regarded as legislative, executive or judicial’.

Question 59

What support is there for Barendt’s view that the courts should be able to decide which functions should be exercised by which institutions?

Answer 59

The speech of Lord Nolan in M v Home Office – ‘the courts will respect all acts of the executive within its lawful province, and … the executive will respect all decisions of the courts as to what its lawful province is’.
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Lord Hoffman in R(Prolife Alliance) v BBC – ‘it is necessary to decide which branch of government has in any particular instance the decision-making power and what the limits of that power are. That is a question of law and must therefore be decided by the courts.’

Question 60

Which other legal doctrine causes significant problems in the application of the separation of powers theory?

Answer 60

A further issue preventing the application of the separation of powers theory to the practical reality of the UK Constitution is the existence of the doctrine of Parliamentary sovereignty which leads to one sovereign and legally dominant institution. Inevitably the existence of one dominant institution is problematic for the separation of powers.

Question 61

How does the presence of parliamentary sovereignty lead to questions over the existence of a separation of powers in the UK Constitution?

Answer 61

It leads some to say that the British separation of powers merely describes how powers are in fact divided rather than requiring them to be allocated in a specific way to specific institutions.

Question 62

Who supports the view that the UK Constitution does not have a separation of powers?

Answer 62

Professor Hood Phillips denounced the separation of powers as a ‘constitutional myth’ in the UK.

Question 63

Who supports the view that the UK Constitution does have a separation of powers?

Answer 63

Lord Diplock ‘strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers’ in the Duport Steel Case.

Question 64

In the debate on the existence of a separation of powers in the UK what are the two key issues?

Answer 64

1. The absence of any codified constitution or written document outlining the means of allocating governmental power, or even that three branches of government should exist, means that any separation of powers that can be said to exist cannot be said to be the result of some higher constitutional source.
2. The dominance of the principle of parliamentary sovereignty in the UK seems to suggest that all legal authority should be vested in one dominant body rather than three – as is inherent to the separation of powers doctrine.

Question 65

What does Tomkins argue about a separation of powers in the UK Constitution?

Answer 65

Tomkins argues that the dominance of Parliamentary Sovereignty means that the separation of powers cannot regulate how powers should be dispersed and instead any separation of powers that does exist is descriptive of the distribution of the government powers as they are rather than a constitutional determination of how the various powers should be allocated - ‘too the limited extent that there is some separation along these lines, it is merely descriptive and not normative’.

Question 66

What examples are there in the UK Constitution of institutional overlap of the governing bodies?

Answer 66

• The Cabinet (core executive) are drawn from the ranks of Parliament
• The Monarch retains residual presence across all three branches
• Historically the Lord Chancellor enjoyed legislative, executive and judicial roles
• The Appellate Committee of the House of Lords was a committee of the upper house of Parliament

Question 67

How did the position of Lord Chancellor represent a challenge to the separation of powers doctrine in the UK?

Answer 67

Up until it’s reform in 2003 whoever held this role was effectively a member of all three branches of government - it was considered a ‘living refutation of the doctrine of separation of powers in England’.

Question 68

What were the arguments in favour of the Lord Chancellor role?

Answer 68

The Constitutional Reform Act 2005 reformed the position but up until this point defences of the role had been made by those claiming it was ‘the natural conduit for communications between the judiciary and the executive, so that each fully understands the legitimate objectives of the other’ – Lord Irvine.

Question 69

How did the role of the Appellate Committee represent a challenge to the separation of powers doctrine?

Answer 69

Up until it was replaced by the UK Supreme Court in 2009 the Appellate Committee of the House of Lords were a committee of the upper house of parliament that were also tasked with administration of judicial functions.

Question 70

What were the arguments in favour of the Appellate Committee?

Answer 70

The ‘extensive judicial experience’ the Law Lords provided to the House of Lords, enabling them to ‘clarify legal points or help identify issues which require decision’ defend the position somewhat. Also, there was said to be a conferred benefit to the Law Lords by understanding the process through which the legislature created new laws and the considerations they made in doing so which they could usefully utilise in their adjudicative roles.

Question 71

How did the Senior Law Lord attempt to make the overlap more tolerable?

Answer 71

He sought to clarify how the roles of legislator and adjudicator were to be kept distinct, telling the committee – ‘do not think it appropriate to engage in matters where there is a strong element of party-political controversy’ and reminding them to ‘bear in mind they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House’.

Question 72

How is the position of the monarch problematic to the separation of powers doctrine?

Answer 72

The Queen retains a constitutional presence in respect of all three branches of government. Legislation cannot come into effect without the Royal Assent and it is the Queen who possesses the legal power to summon and prorogue Parliament.
Members of the Cabinet and other Ministers of the Crown are appointed by the monarch and exercise executive functions on her behalf.
The residual role of the monarch in the judicial branch is evident from the fact that the High Court and Court of Appeal are housed in the Royal Courts of Justice and Judicial Review actions reflect the historical view that the function of controlling governmental activity was a matter for the Royal Prerogative.

Question 73

What serves to make the position of monarch more tolerable to the separation of powers theory?

Answer 73

In many instances the role of the crown is a wholly symbolic or residual one, furthermore, in some cases Conventions serve to significantly weaken the ability of the monarch to exercise her authority in each branch of government.

Question 74

In which case does Adam Tomkins suggest the problem of constitutional coherence is highlighted?

Answer 74

M v Home Office …

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Question 80

To what extent is the judicial role in the UK fused with the other institutions?

Answer 80

The Judicial branch of the UK Constitution is, in the main, functionally and institutionally separate from the legislature and executive.

Question 81

Which other doctrine promotes the importance of an independent judiciary?

Answer 81

Judicial independence is also supported by the rule of law.

Question 82

What did Hartley and Griffith say about judicial independence in the UK?

Answer 82

They said it is the one aspect of the separation of powers that is accepted in the British constitution’.

Question 83

Where does further support for the importance of judicial independence come from?

Answer 83

Constitutionally significant legislation dating back hundreds of years can be seen to provide support for an independent judiciary – Magna Carta 1215 – ‘royal government must function both through judicial processes and with the counsel of the great men of the kingdom’.

Question 84

What other legislation supports the independence of the judiciary?

Answer 84

The Constitutional Reform Act 2005 obliges Ministers of the Crown to ‘uphold the continued independence of the judiciary’ and the House of Commons Disqualification Act 1975 disqualifies judges from membership to the House of Commons.

Question 85

What conventions support the independence of the judiciary?

Answer 85

It is a Convention that judges insulate themselves from party politics by resigning any membership of a political party upon appointment, Conventions also protect judges from direct and personal criticisms from ministers in relation to judicial decisions made.

Question 86

How does the common law support the independence of the judiciary?

Answer 86

The common law on judicial bias makes clear that judges should be independent of the parties to a case, and may be automatically disqualified from sitting if they are found to have a financial or non-pecuniary interest in a given case.

Question 87

How has the HRA 1998 impacted upon judicial independence?

Answer 87

The HRA 1998 has bolstered the requirement that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ by introducing Article 6(1). The case law of the ECHR indicates that there is a requirement not only that the judiciary are independent from the parties of the case but that they’re independent from the executive also.

Question 88

Can the UK constitution be said to operating under a checks and balances system?

Answer 88

A principled separation of functions is difficult in the UK due to Parliamentary Sovereignty, however, in practice there is seemingly an established system of checks and balances. Governmental powers in the UK are, therefore, seemingly subject to constraints on account of the existing constitutional arrangements.

Question 89

What are the two key ways in which the UK government bodies serve to check and balance one another?

Answer 89

1. Parliamentary controls on the executive

2. Judicial Review

Question 90

How do Parliament check the power of the executive in the UK?

Answer 90

1. The executive cannot enact primary legislation without the agreement of Parliament, legislative proposals must first be put before Parliament and then granted Parliamentary endorsement.
2. Parliamentary questions and debates and the activities of Parliamentary committees hold the executive to account for the discharge of its functions.
3. The doctrine of individual ministerial responsibility constitutionally obliges ministers to explain the actions of their departments and may, in some circumstances, require their resignation.

Question 91

What is meant by an ‘elective dictatorship’?

Answer 91

This means that strong governments, with large majority votes, will be a strong position to pass various motions and are unlikely to face significant opposition in the form of Parliament. In such situations the check by Parliament on the power of the executive may be reduced or lost altogether.

Question 92

How does judicial review act as a check to the power of the executive branch?

Answer 92

This process allows the courts to review the legality of the exercise of administrative discretion. Traditionally challenges are made on the grounds of illegality, irrationality or procedural impropriety. Furthermore, Article 6(1) of the HRA makes it unlawful for public authorities to act in a way incompatible with Convention Rights given effect under that Act.

Question 93

How is the check of judicial review perhaps somewhat limited?

Answer 93

It should, however, be noted that Judicial Review is primarily a procedural rather than substantive check on the power of the executive – the merits of the decision are not reviewed. Nor may the courts replace the decision of the public authority with their own – they do not have the powers of an appeal.

Question 94

What other checks to the power of the executive may the judiciary exercise?

Answer 94

While Acts of Parliament cannot be struck down by the courts there are very limited exceptions typically involving the disapplication by courts of Acts of Parliament only as far as is necessary to resolve an inconsistency between domestic and EU Law. Alternatively, instances may arise in which courts declare Acts of Parliament incompatible with the Convention Rights as introduced by the 1998 HRA – such a declaration, however, does not affect the ‘validity, continuing operation or enforcement’ of the provision(s) of which it is made.
The courts may also exercise a check to the power of parliament through statutory interpretation. They may for instance, utilise the requirement of express words to override a constitutional right existing at common law.

Question 95

Can the UK constitution be said to respect the separation of powers overall?

Answer 95

Certain elements of the UK Constitution demonstrate adherence to the separation of powers doctrine but said adherence does not stem from a constitutional or higher order law. Nor does the adherence reflect a considered determination of how governmental powers ought to be allocated.

Question 96

What is the biggest obstacle to a separation of powers in the UK?

Answer 96

Parliamentary Sovereignty - Under a government system in which one branch of government is so flagrantly considered dominant and above all others the relevance of a doctrine such as the separation of powers must come into consideration.

Question 97

What is the significance of the UK’s seemingly independent judicial branch?

Answer 97

Some argue the UK’s independent judicial branch is the closest thing to an ‘entrenched’ feature of the UK’s peculiar separation of powers. The separation of powers between the executive and judicial branches is relatively clear and more so after the Constitutional Reform Act 2005. Such a separation has been endorsed and described as “fundamental” by Lord Bingham due to it’s importance in regards to the rule of law – this is in spite of no explicit constitutional directive requiring it (in regards to the separation of powers).

Question 98

How has the role of the judiciary changed in recent years?

Answer 98

The judiciary have also arguably gained increased functional autonomy in recent years. Indeed, there have been a number of activist judicial decisions in response to parliamentary attempts to curtail the exercise of judicial discretion.

Question 99

What did T R Allan say about the role of judicial independence?

Answer 99

The importance of judicial independence to the rule of law has even seen suggestions arise that some areas of judicial procedure are virtually impervious to parliamentary interference – T R Allan remarked – ‘The integrity of appropriate standards of judicial procedure must therefore be regarded as constitutionally fundamental – substantially immune to legislative abrogation or abridgement’.

Question 100

What is the significance of the growing role/importance of judicial independence in the UK Constitution?

Answer 100

The importance of judicial independence to the rule of law – to the extent that parliamentary interference with judicial autonomy may be subject to scepticism by the courts – illustrates that judicial independence may now be realistically regarded as a key element of the UK Constitution’s separation of powers. If accepted then the independence of the judiciary should not simply be a description of the position of the judges in the constitution, but should rightly be regarded as a constitutional fundamental and pre-requisite of legitimate government in the UK.