(3) Significance of SoP Flashcards
Can the UK constitution be said to respect the separation of powers overall?
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.
What is the biggest obstacle to a separation of powers in the UK?
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.
What is the significance of the UK’s seemingly independent judicial branch?
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).
How has the role of the judiciary changed in recent years?
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.
What did T R Allan say about the role of judicial independence?
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’.
What is the significance of the growing role/importance of judicial independence in the UK Constitution?
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.
