How strong is the UK's separation of powers - Assessment answer.
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Course
Constitutional Law
Institution
Staffordshire University
This is a well-written undergraduate answer in the field of constitutional law. This essay discusses the separation of powers and assesses its strengths and weaknesses with reference to philosophy, USA's separation of powers, and much more.
This essay achieved a 1st with a mark above 70 making i...
The separation of powers is a political theory that was articulated by a philosopher called
Montesquieu. This theory presents three organs of state that are vital for the functioning of a
democratic and anti-tyrannical state. The three organs of state are as follows: The legislature: this
organ makes law and includes the Monarchy, The elected House of commons and its upper
chamber: the unelected House of Lords. The Executive which implements law and includes the
monarchy, The Prime minister, the forces of the UK, ministers and the Civil service. Finally, the
Judiciary which interprets the law and resolves disputes, this organ includes the monarchy, Judges,
and the courts. Checks and balances were the womb In which the doctrine of the separation of
powers was grown, meaning that they uphold each other. There are many opinions as to what it
means to have a separation of powers and many philosophical ideas surrounding the doctrine.
On a comparative note, The USA’s constitution is both written and codified, there, the separation of
powers is implied, with direct reference to it in their constitution. For Example, in s,1 article 8, clause
18; it states that “To make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.”. This is just an Example; s.1 outlines most if
not ALL powers of congress with detail in multiple clauses and other implied powers. However, due
to the rare, Unwritten and uncodified nature of the UK constitution, the separation of powers is not
a formal doctrine and hasn’t been implied within the constitution. That being said, it raises the
question, as suggested by Hilaire Barnett: “the separation of powers is neither an absolute nor a
predominant feature of the UK constitution”1. How can a doctrine ever be truly effective if not
referenced or protected within the foundations of law: The Constitution?
The judiciary is the weakest of organs in the government as it can be overridden by parliament due
to the recognition of parliamentary sovereignty meaning that it holds legislative supremacy. Though
1
Hilaire Barnett, Constitutional And Administrative Law (7th edn, Routledge-Cavendish 2009).
, this may be the weakest of the three powers, it is one of if not the strongest check on the executive
due to the power of judicial review. There are a number of judicial doctrines and regulations that
uphold the separation of powers. For example, Judicial Independence. This doctrine enables judges
to have security of tenure which means that the salary of judges will be protected by being decided
by an independent body instead of another organ of state. The constitutional reform act which was
established in 20052 upheld judicial independence by changing the role of Lord chancellor of whom,
prior to the act was involved in all three organs of state. The act also created the judicial
appointment commission which freed the appointment of judges from political influence. Thus, the
act removed threats to the separation of powers and defended judicial independence. Following this
point, prior to the introduction of the reform, s.1 of the House of Commons Disqualification act 3
stated that judges cannot sit as MPs within parliament as well as restricting Police, members of the
Civil service and members of the forces from holding parliamentary office. Therefore, by introducing
such acts, upheld the of the separation of powers.
The separation of powers could also be argued as weak due to the contradiction with the word
‘separation’. How can something be truly separate as well as having many over-laps, we also often
see the branches work together in the name of checks and balances. For Example, Parliament has
the power to dismiss the elected government via a motion of no confidence and force a general
election, despite them being in two different organs of state. After the Fixed-term Parliaments Act
20114, if a government loses a motion of confidence, the House of Commons will be dissolved
unless, within fourteen days of the vote, an alternative government is formed from within the
Commons or if the government regains the confidence. The defeated prime minister would also be
required to resign following a lost motion of no confidence. Despite this being used as a reason for
the separation of powers being weak, it could also be used as a reason for it being strong or
2
2005 c.4
3
1975 c.24
4
2011 c. 14
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