SEPARATION

OF POWER
CREDIT TO LLB PL1 UOR AND UORM TEAMS
LEARNING OUTCOME

Meaning of separation of powers

Value of separation of powers

The practice in the UK

2
 STATE

LEGISLATIVE EXECUTIVE JUDICIARY

(PARLIAMENT) (GOVT) (COURTS)

CROWN HOUSE OF HOUSE OF CROWN CABINET CROWN

COMMONS LORDS

PARLIAMENTARY
SUPREME
COURT

SOVEREIGNTY
COURT OF
APPEAL

HIGH COURT

SEPARATION OF POWERS
+
CROWN
RULE OF LAW COURT

MAGISTRATE SESSION
COURT COURT
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INTRODUCTION
• The concept of separation of powers marks the clear distinction among the
three major organs of the government. The Legislature , the Executives and
the Judiciary these three organs have a different set of scope/function this is
to prevent an abuse of power as no power is concentrated in one body. The
Legislature (law makers), the executives(those who implement/execute laws)
and the Judiciary(those who declare laws). This is so as too much power on
one body could lead to an abuse of power.
• The founder of this concept is Aristotle (384-322BC) however propounded
further by Charles Louis De-Montesquieu (1748) a French writer/jurist. The
UK has no complete separation of powers as it has no written constitution
which leads to various overlaps. However even for nations with a written
constitution there is no complete separation of powers , there is still an
overlap.
BRANCHES AND FUNCTIONS
OVERLAPS
THE VALUE OF SOP
When the legislative and executive powers are united
in the same person, or in the same body of
magistrates, there can be no liberty; because
apprehensions may arise, lest the same monarch or
senate should enact tyrannical laws, to execute them
in a tyrannical manner. Again, there is no liberty, if
the power of judging be not separated from the
legislative and executive powers. Were it joined with
the legislative, the life and liberty of the subject
would be exposed to arbitrary control, for the judge
would then be the legislator. Were it joined to the
executive power, the judge might behave with all the
violence of an oppressor.

Montesquieu, The Spirit of the Laws

 THE VALUE OF SOP

Separation of Functions Principle: Separation of powers is valuable because it

separates ‘the functions of government from one another’

Division of Power Principle: Separation of powers is valuable because ‘it averts

the concentration of too much power in the hands of any one person, group, or
agency’

Checks-and-balances Principle: Separation of powers is valuable because it

requires that no branch of government can act without the cooperation of the
others and thus ‘permits one entity to check or veto the actions of another’
THE VALUE OF SOP
•The three principles are independent of one another and point in
slightly different directions
•You can satisfy one without satisfying the other
•They do not match up with all the meanings of SoP discussed
above
•For example: The separation of functions principle does not
require separation of persons, the checks-and-balances principle
does not require that each branch only performs its peculiar
function
SOP IN THE UK (1)
General
•The UK does not adopt a pure separation of powers, whereby 1)
there is a strict one-to-one correlation between branches of
government and functions, and 2) no person participates in more
than one function
•Traditionally, it embraced an ideal of ‘balanced government’
(Blackstone) or ‘fusion of powers’ (Bagehot)
•The Constitutional Reform Act 2005 eliminated some of the more
problematic elements of this fusion
SOP IN THE UK
The same person should not belong to more than one branch
Deviations:

• Government Ministers must, by convention, be a member of one of the

Houses of Parliament

• The Lord Chancellor used to belong to all three branches; particularly

problematic was his power to sit as a judge and be a member of the cabinet as
this was arguably incompatible with art 6(1) of the ECHR; The CRA 2005 has
merged the Office of Lord Chancellor with the Ministry of Justice.

• The (former) Law Lords were both judges and voting members of the House of
Lords; The CRA 2005 has created a Supreme Court that is entirely separate
from the HoL.
CRA 2005
Constitutional Reform Act 2005

1)Pre CRA 2005

• Prior to the CRA 2005 the Lord Chancellor was a member of the cabinet, the head of
Judiciary and the speaker of the House of Lords. This came with great criticism as the office
of the Lord Chancellor went against the concept of separation of powers.
• The House of Lords was the highest courts of the land and the second chamber of
parliament, this represents an overlap between the Legislature and the Judiciary.

2)Post CRA 2005

• Now the Lord Chancellor is a member of the cabinet and appoints members of the Judicial
Appointment Committee (JAC) he is no longer the head of the judiciary, now that position
is usurped by the Lord Chief Justice. He is also no longer the speaker of the House of Lords.
• The Supreme Courts had been created to replace the former House of Lords which was the
highest appellate Courts and the second chamber of parliament.
SOP IN THE UK
One branch should not control the work of the others
The issues:
• Does Government dominate Parliament? Do we have a system of ‘elective
dictatorship’ (Lord Hailsham)?

• Is the judiciary sufficiently independent of the executive?

• Does the judiciary interfere with the legislative function?

SOP IN THE UK
One branch should not usurp the function of another
Areas of controversy:
• Parliament and Judiciary
• Judicial development of the common law
• Criminal and civil matters covered by Parliamentary Privilege

• Parliament and Executive

• Delegated legislation

• Judiciary and Executive

• Judicial review of executive action
• Trial by tribunal
CASES
M v Home Office 1993
• The High Court had issued an order preventing the deportation of a Zairan national.
However the Home Minister had breached the court order and deported the Zairan
national back to his home country. The Courts had held that the act of the Home
Minister in breach of a court order, was held to be in contempt of court.

Council for Civil Service Unions/GCHQ (1985)

• The Prime Minister had banned the membership of trade union for the workers at the
government communication headquarters (the intelligence body) This is a right that has
been enjoyed by the unions for several decades, the union challenged the legality of
the ban. The Court of the Appeal and the House of Lords held that where there is
national security matters , then the Courts would not interfere.
• This case had further defined matters of justiciabilty(reviewable) and non justiciabilty
(non reviewable).
CASES
RvR 1991 (HOL)-Marital Rape.
• Sir Mathew Halle’s law was drafted in 1700 , this law states that upon marriage the wife
surrenders all consent to Husband. However this law is deemed outdated in the 21st century.
Due to the change of circumstances the House of Lords was of the decision that a husband
can be liable for rape.

Shaw v Director of Public Prosecutor 1962

• The Publisher had published a diary of prostitutes, there no law in statute that prevents such
an act. The Courts came up with a new offence ‘ Offence of corrupting public morals “
Burma Oil v Lord Advocate 1965 (HOL)
• The British Government had destroyed oil rigs in Burma during world war 2,the Burmese
government brought an action against the United Kingdom. The House of Lords allowed for
compensation , however the parliament passed the War Damages act 1965(retrospective
law) which overruled the House of Lords decision.
CASES

Ex parte Pinochet 1999

• This case concerned the extradition of General Pinochet from Chille, the United
Kingdom sought to extradite the general from his country. However one of the Law
lords who presided over the subject matter( Lord Hoffman) his wife was a member
of Amnesty International an international organisation that is against extradition.
There was an appearance of biasness and by right Lord Hoffman was to excuse
himself. A retrial was held as there was an appearance of biasness.
Dimes v Grand Junction Canal Properties 1852
• The Lord Chancellor owned shares in the company involved in litigation. HOL ruled
that the lord Chancellor should have disqualified himself from sitting even though
it was said that he was not influenced by the interest. It was of utmost importance
that the maxim “No man is to be a judge in his own cause should be held sacred”