Separation of Powers Overview

Separation of Powers (SoP)

• SoP reflects the division of governmental powers to prevent any single person or group from accumulating excessive power.
• Each branch (executive, judicial, legislative) should need the cooperation of others, creating a system of checks and balances.
• Gridlock can occur when branches disagree and block each other's actions.
• A dictatorship eliminates SoP, concentrating power in the central executive. The executive often holds significant financial resources (taxes), making it a potentially dangerous branch.
• Turkey's shift to a presidential system, concentrating power in the executive, is an example of weakening democratic checks and balances.

SoP and Montesquieu

• Montesquieu, a French nobleman, is associated with the well-known SoP doctrine (The Spirit of the Laws, 1748).
• He believed that power should be checked by power to prevent tyranny.
• Montesquieu preferred a monarchy for the executive, believing it provided stability.
• He emphasized the importance of reading his complete work.

Aspects of the SoP Doctrine

• Functional Separation: Prevents one branch from performing the functions of another.
• Personnel Separation: No individual should hold positions in multiple branches.
• Checks and Balances: Each branch can check and hold accountable the others.

SoP in the UK and Comparison with the USA

• The UK's separation is not as strong as the USA's, partially due to historical circumstances and the Crown's previous significant power.
• The UK has overlaps between branches, especially the executive and legislative (Ministers are also MPs).
• The key question is whether the UK has enough SoP to prevent abuse of power.

Constitutional Relationships

• Legislature and Judiciary: Both make laws but are theoretically separate.
• Executive and Legislature: Ministers must be MPs;
• Executive and Judiciary: Courts can review executive actions; prerogative powers have overlap & are not subject to the same level of judicial review (executive powers).

SoP and Judiciary

• The judiciary is considered the least dangerous branch due to its relative passivity.
• Judges are interpreters and sometimes creators of precedents. Judges should avoid ruling on highly sensitive social issues.

Relationship Between Parliament and Judiciary

• Parliament has supremacy over the courts. Constitutional conventions exist to maintain relations.
• Judges develop common law and interpretations that fill gaps in legislation.
• The tension between Parliamentary sovereignty and judicial review is reflected in cases like Shaw v DPP, Anisminic, Pepper v Hart etc.
• Conflicts can arise regarding the interpretation of laws, e.g., R v Brown, Hamilton v Al Fayed.

Relationship Between Executive and Courts

• Executive and Courts can overlap but each have distinct, largely exclusive domains..
• Judicial review over some executive actions is limited, especially in affairs related to foreign policy and treaties.
• The Courts can check executive decisions via judicial review, but not regarding some key prerogative powers of the executive. (see GCHQ) Review is not possible for key prerogative powers.

Judicial Inquiries

• Inquiries like the Chilcot Inquiry scrutinize government decisions and actions.
• Judicial/Public Inquiries can be done over the executive's decisions (e.g., report of arms sales).

Human Rights Act 1998

• Sections 3 and 4 of the HRA limit the scope of judicial interpretation and preserve parliamentary supremacy.
• Section 6 expands the scope of judicial review to "public bodies".

SoP and Reform

• The Constitutional Reform Act (2005) created the Supreme Court and reformed the role of the Lord Chancellor.
• The Lord Chancellor was initially a major example of overlap in the branches of government, holding functions in all three areas simultaneously. This position was subsequently reformed to ensure proper separation.

Supreme Court Creation

• Creating a separate Supreme Court from the House of Lords reinforced the separation of the judiciary and the legislature.
• Public confidence and understanding of the distinct roles in the judiciary and political legislative upper house were key to this reform.

Checks and Balances & Further Details

• Key checks and balances exist, including the executive needing parliamentary support and the executive being subject to judicial review.