Lecture notes
08. Separation of Powers
- Module
- Public Law
- Institution
- Kings College London (KCL)
08. Separation of Powers
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SEPARATION OF POWERSClassic trilogy
Executive (government)
o Execute law administration and enforcement of law in accordance with the
powers conferred on it by law
o Corpus of authority to govern
o Policy includes initiating and implementing legislation, maintaining order and
security, promoting social and economic welfare, administering public services and
conducting external relations of the state
Legislature (parliament)
o Legally unchallengeable right to make whatever law it thinks right
o Enactment of general rules determining structure and powers of public authorities
and regulating conduct of citizens and private organisations
Judiciary
o Adjudication interprets and applies the law
Essential for separation of powers within the state for the maintenance of democracy and
also for the legal system, where an independent judiciary is essential if the rule of law is to
have any substance
Why is it important for separation of powers?
o To prevent concentration of powers unable to control what that one party does
o If no separation of powers, lack of representation (democracy)?
o Checks and balances
James Madison, The Federalist No. 5 “if man were angels, no government would be
necessary. If government were run by angels, we would not need any control.”
o First control = elections democracy
o Second control = separation of powers how to design a system with all these
controls/safeguards so as to protect the interests of the people as a whole
However, should not freeze what the government can do
No power becomes too powerful, but at the same time, ensure that their
powers to run the state is not limited
Doctrine of separation of powers
o All tasks are performed in the name of the Crown, but with a differentiation of
process and personnel
Old idea of separation of powers
Lord Templeman in M v Home Office [1994] 1 AC 377 (HL)
o Parliament makes the law, the executive carry the law into effect and the judiciary
enforce the law
Aristotle, The Politics (4C B.C.)
o “There are three elements in each constitution in respect of which every serious
lawgiver must look for what is advantageous to it. … The three are, first, the
deliberative [legislature], which discusses everything of common importance;
second, the officials [executive]; and third, the judicial element.”
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