Separation of Powers Flashcards
Why is there a need for some separation of powers?
> Essential both in the interests of democracy and also for the legal system, where an independent judiciary is essential if the rule of law is to have any substance.
Lord Mustill Quote
> Lord Mustill in FBU case:
“It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. This requires the courts on occasion to step into the territory which belongs to the executive, to verify not only that the powers asserted accord with the substantive law created by Parliament but also that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended. Concurrently with this judicial Parliament has its own special means of ensuring that the executive, in the exercise of delegated functions, performs in a way which Parliament finds appropriate. Ideally, it is these latter methods which should be used to check executive errors and excesses; for it is the task of Parliament and the executive in tandem, not of the courts, to govern the country.”
Montesquieu
> French jurist strongly associated with the doctrine of the SoP.
The Spirit of the Laws:
“When legislative power is united with executive power in a single person or in a single body or the magistracy, there is no liberty… Nor is there liberty if the power of judging is not separate from legislative power and from executive power.”
James Madison
> Described SoP as a political truism:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Meanings of the concept of ‘separation’
- The same persons shouldn’t form part of more than one of the 3 branches.
- One branch of the state shouldn’t be able to directly control the work of another.
- One branch shouldn’t exercise the functions of another.
Bagehot
> Bagehot, 1867:
“The efficient secret” of the British Constitution is “the close union, the nearly complete fusion, of the legislative and executive powers.”
Critics - close relationship doesn’t negate their distinction, e.g. personnel overlap between leg & exec but still recognised as 2 different branches.
What has improved balance of advantage between Parliament & Government which a 1978 Select Committee on Procedure recognised as being in favour of the Government?
> Creation of a system of department select committees to increase accountability of government to Parliament.
1990s modernise Commons’ procedures.
Constitutional Reform Act 2005
> LCJ replaced LC as head of the judiciary in England and Wales.
