4. The Separation of Powers

What are the separation of powers?
  • There are three functions of government:
    • The legislative function: involves the drafting, making, and publication of new laws as well as the amendment of existing laws and, in the UK, consists of the monarch, the House of Lords, and the House of Commons.
    • The executive or administrative function enforces the law. It consists of the reigning monarch who is legally the head of state, the Prime Minister, Cabinet, Secretaries of State, ministers of the Crown, departments of state, non-departmental public bodies, devolved administrative organizations like the Scottish Government, the Welsh Government, the Northern Ireland Executive, and the Greater London Authority, local authorities, the police, and the armed forces.
    • The judicial function involves the interpretation and application of the law, and also covers the resolution of disputes, provides remedies, and determines punishments when the law is breached. It consists of all the judges who preside in the senior or lower courts and tribunals within the UK.
  • The separation of powers is meant to act as a safeguard against arbitrary and discretionary power, prevent tyranny and protect individual liberty.
  • There is no statutory definition of the separation of powers in the UK and Acts of Parliament never mention it explicitly. There are, however, statutes which impliedly support the separation of powers, such as the House of Commons (disqualification) Act 1975 which aims to limit the power of the executive to control the legislature, as well as the Constitutional Reform Act 2005.
Relationship between the Executive and Parliament
  • There was a close union or fusion of the executive and legislative powers in the British system of government.
  • The UK’s integration of executive and legislature is said to provide stability and efficiency in the operation of government.
  • The Prime Minister is usually both head of the executive branch and leader of the majority party in the legislature, which gives the executive branch much more freedom of action than a president usually enjoys in a presidential system of government.
  • The executive presence in Parliament may actually facilitate scrutiny provided that the necessary procedures are in place.
Relationship between the Executive and the Judiciary
  • The role of the judiciary in relation to the executive was to verify that the powers asserted accord with the substantive law created by Parliament, and also to ensure that the manners in which they are exercised conforms with the standards of fairness which Parliament must have intended.
The Judiciary and the Executive
  • An independent judiciary is essential to the separation of powers.
  • Judges are legally appointed by the monarch on the advice of ministers.
  • The Constitutional Reform Act 2005 created a new appointments process for justices of the UK Supreme Court. New justices are selected by a selection commission, the members of which include the President and Deputy President of the Supreme Court, a member of the Judicial Appointments Commission of England and Wales, the Judicial Appointments Board of Scotland, and the Northern Ireland Judicial Appointments Commission. It also created the Judicial Appointments Commission which selects new judges in the senior courts. Both these measures were designed to reinforce the independence of the judiciary.
The Civil Procedure Rule Committee
  • The Civil Procedure Rule Committee is an advisory non-departmental public body set up under the Civil Procedure Act 1997 to make rules of court for the Civil Division of the Court of Appeal, the High Court, and the county courts.
  • It is part of the executive and provides the executive with a role in the development of civil procedure.
  • The committee is largely staffed by members of the judiciary and the legal profession, which alleviates the problem of whether the executive could influence the development of civil procedure in its favour.
The Sentencing Council for England and Wales
  • The Sentencing Council for England and Wales is an independent, non-departmental public body of the Ministry of Justice.
  • It was set up by Pt 4 Coroners and Justice Act 2009 to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary.
  • The primary role of the Council is to issue guidelines on sentencing which the courts must follow unless it is in the interest of justice not to do so.


Relationship between the Courts and Parliament

  • The sub judice ‘rule’ prevents the discussion of ongoing cases in Parliament, but, subject to that, the decisions and conduct of individual judges may be mentioned in debates in either House of Parliament. This does not, however, mean that judges are accountable to Parliament for their decisions in particular cases.
  • Parliament may legislate to reverse the effect of a decision or change the law as established or interpreted by a judicial decision.

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