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Summary public law
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separation of powers
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Historical Developmentthe three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third,
the judicial element.
- Aristotle
In Edward’s day all becomes definite there is the Parliament of the three estates, there is the King’s Council, here are he
well known courts of law
- FW Maitland, Constitutional History of England (Cambridge University Press 1908) 20.
in a constitution like ours, the safety of the whole depends on the balance of the parts.
- Viscount Henry St John Bolingbroke
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can
be no liberty… Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it
were 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. If it were joined to the executive power, the judge might behave with violence or
oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the
people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying
crimes or individual causes.
- Montesquieu
The basic Idea
At the heart of the idea of the sop is the proposition that there are different kinds of public function that…
➤ Out to be distinguished from each other, and…
➤ Ought either to be exercised by different institutions and/or personnel, or somehow ‘balanced’ to prevent an over-
concentration of power in the hands of a single person or institution
Relationship with the Rule of Law
➤ The three constitutional principles are “related” to each other; and form the basis of constitutionalism.
➤ Rule of law
➤ Separation of powers prevents tyranny through division of power.
➤ It forces the different organs of the state to act within their power only.
➤ Government according to the law.
➤ Government acquires only requires the powers necessary to achieve their policy goals
Why do we Seperate Powers?
➤ A template design that clearly outlines a structure of government that is both successful and easily understandable.
➤ The SoP helps protect individuals and their liberties. Creating a system of ‘checks and balances’
➤ Efficacy - powers are divided sensibly, between different institutions of government.
The Legislative, Executive, and Judiciary Departments, shall be separate and distinct, so that neither exercise the powers
properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time
- The Constitution of Virginia, cited by James Maddison, in James Maddison, Alexander Hamilton & John Jay,
Federalist Papers, Paper 47
Two Forms of Seperation
Function
- The three branches fulfil sperate and distinct functions
Personnel
- The three branches are staffed by different people
Powers to implement the law
- Executive
, Power to make judgements on the law
- Judicary
Power to make and change the law
- Legislature
The executive
Crown;
➤ Prime Minister;
➤ Cabinet;
➤ Government;
➤ Civil Service;
➤ Police Force;
➤ Armed Forces;
The Legislature
➤ The Crown
➤ House of Commons;
➤ Elected
➤ 650 Members
➤ Political Parties
➤ Government
➤ House of Lords
➤ Unelected;
The Judicary
➤ Supreme Court;
➤ Appointment procedure
➤ Tenure
➤ Salary
➤ Independence
Case
R (SECRETARY OF STATE FOR THE HOME DEPARTMENT) V FIRE BRIGADES UNION
➤ The Criminal Injuries Compensation Scheme was introduced in 1964, on a nonstatutory basis (royal prerogative).
➤ Parliament had passed the Criminal Justice Act 1988, which sought to place the Compensation Scheme onto a
statutory footing.
➤ Section 171 (1) stated that
➤ ‘this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument
adopt’.
➤ In 1993, the Home Secretary had indicated that the 1988 Act would not be brought into force.
➤ The Fire Brigade’s Union brought an action challenging the Home Secretary’s decision not to bring into effect the
1988 Act.
➤ FBU, the applicant argues,
➤ “although the section confers a discretion as to the date on which the statutory scheme is to be brought into force it
in addition imposes on him a statutory duty to bring the sections into force at some time.”
➤ SoS, argues this power is entirely discretionary
The form of words to be found in section 171(1) is used in many statutes where Parliament considers, for one reason or
another, that it is impossible to specify a day for the statutory provisions enacted to come into force. Therefore
although the case before your Lordships turns on the construction of section 171(1) it cannot be construed in isolation.
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