Separation of Powers

Question 1

Aim of the separation of powers

Answer 1

• Not an end in its own rights, but a means of preventing tyranny.
• Madison: accumulation of power in the same hands is tyranny.
• Montesquieu: the reasoning behind the conception is a desire to prevent tyranny (L’esprit des lois)
• Therefore, breaches of the doctrine may be necessary to prevent accumulation of power within the branches.
• Absolute parliamentary sovereignty risks tyranny: “the superior force of an interested and overbearing majority” (Madison)

Question 2

What?

Answer 2

• There must be a threefold division of power between a legislator, an executive and an independent judiciary - “separation of powers”.

Question 3

Strict conception - conforming in the UK

Answer 3

• Independency of the judiciary following the Constitutional Reform Act 2005 which removed the role of the head of judiciary from the Lord Chancellor to the Lord Chief Justice; removed the Law Lords from the House of Lords and created the Supreme Court.
• Sovereignty of Parliament: Dicey - “no person or body is recognised… as having a right to override or set aside the legislation of Parliament. Note also the declaration of incompatibility with HRA s4 rather than striking down.

Question 4

Strict conception - failure to conform in the UK

Answer 4

• Executive and legislature: Bagehot - “near complete fusion of the executive and the legislative powers”: PM has majority in House of Commons and the strong system of government whips.
• Judiciary and the Executive: the judiciary is sometimes willing to strike down unreasonable (Wheeler) or disproportionate (Daly) administrative decisions. Is the court infringing on matters for the executive?

Question 5

Academics

Answer 5

• Smith: “no writer of repute would claim that it is a central feature of the modern British constitution”
• Robson: “that antique and rickety chariot”.
• Allison: the doctrine is a vague one, having attracted “damning and repeated criticism”

On the other hand:

• Lord Diplock: Duport Steels v Sirs
• Liyanage - PC declared legislation invalid made in Ceylon (amended in order to ensure coup plotters would be convicted) on the basis of the separation of powers.
• Macmillan: in the UK, the principle “lies in a broader reading of the concept, as a dynamic and fluid explanation of how the judiciary interact with the executive and legislative branches”.

Question 6

Assessment of the UK

Answer 6

Is there a system of checks and balances?

• Judiciary and executive: judicial review of executive decisions. Wade and Forsyth: judicial review is a constitutional necessity to prevent the abuse of executive power.
• Legislature and executive: parliamentary scrutiny of the executive: select committees; parliamentary question; ministerial responsibility.
• Executive and legislature: government majority and party whips.