Separation of Powers
State Institutions → Executive, Parliament, Judiciary.
Lord Steyn: “Separation of Powers is a strong principle of our system of government.”
Template for design of Constitutional systems. Protects liberty and ensures efficiency.
Constitutional System is about power allocation.
Eric Barendth: Separation of Powers prevents concentration of power.
Definition:
Montesquieu: The State institutions must be separate. If there is an overlap of the Judiciary with either the
Executive or the Parliament then there can be no liberty.
James Madison: Separation of Powers is actually the distribution of powers. A true Separation of Powers
is a fantasy, and fails to exist.
William Blackstone: Separation of Powers should be called the balance of powers. A separate and
independent judiciary is enough.
Ralf Dahrendorf: A confusion of powers.
Adam Tomkins: Separation of Powers means the separation of constitutional authority between
Parliament and the Crown.
Separation of Powers & Parliament:
1. Constitutional Reform Act 2005:
a) Restricted Role of Chancellor only to Executive.
b) Established the UK Supreme Court, separating it from the House of Lords.
c) Established the Judicial Appointment Committee.
2. House of Commons Disqualification Act, 1975:
a) Cap on amount of MP that can become Ministers.
3. Subjudice Rule
a) Prohibits MPs from discussing an ongoing case in the Courts.
b) Speaker can waive the rule.
i. Raises the question: How much power does the Parliament really have?
4. Parliamentary Privilege
a) Judiciary cannot review what MPs said.
b) MP has immunity from suits.
c) [Makudi v Baron Triesman of Tottenham] Minister was given immunity for defamatory
statements made in Parliament.
5. Ministerial Accountability.
Separation of Powers & Executive:
1. Cabinets → Takes some power from the Parliament.
2. Chancellor.
a) Reduced role post-CRA.
i. Criticism: Pre-CRA, the Lord Chancellor reduced the tension between Parliament &
Judiciary.
3. House of Commons Disqualification Act, 1975.
a) Limits overlap between the Parliament & Executive.
b) Ministers cannot be judges.
4. Criticisms of the Ministers against the Judiciary.
State Institutions → Executive, Parliament, Judiciary.
Lord Steyn: “Separation of Powers is a strong principle of our system of government.”
Template for design of Constitutional systems. Protects liberty and ensures efficiency.
Constitutional System is about power allocation.
Eric Barendth: Separation of Powers prevents concentration of power.
Definition:
Montesquieu: The State institutions must be separate. If there is an overlap of the Judiciary with either the
Executive or the Parliament then there can be no liberty.
James Madison: Separation of Powers is actually the distribution of powers. A true Separation of Powers
is a fantasy, and fails to exist.
William Blackstone: Separation of Powers should be called the balance of powers. A separate and
independent judiciary is enough.
Ralf Dahrendorf: A confusion of powers.
Adam Tomkins: Separation of Powers means the separation of constitutional authority between
Parliament and the Crown.
Separation of Powers & Parliament:
1. Constitutional Reform Act 2005:
a) Restricted Role of Chancellor only to Executive.
b) Established the UK Supreme Court, separating it from the House of Lords.
c) Established the Judicial Appointment Committee.
2. House of Commons Disqualification Act, 1975:
a) Cap on amount of MP that can become Ministers.
3. Subjudice Rule
a) Prohibits MPs from discussing an ongoing case in the Courts.
b) Speaker can waive the rule.
i. Raises the question: How much power does the Parliament really have?
4. Parliamentary Privilege
a) Judiciary cannot review what MPs said.
b) MP has immunity from suits.
c) [Makudi v Baron Triesman of Tottenham] Minister was given immunity for defamatory
statements made in Parliament.
5. Ministerial Accountability.
Separation of Powers & Executive:
1. Cabinets → Takes some power from the Parliament.
2. Chancellor.
a) Reduced role post-CRA.
i. Criticism: Pre-CRA, the Lord Chancellor reduced the tension between Parliament &
Judiciary.
3. House of Commons Disqualification Act, 1975.
a) Limits overlap between the Parliament & Executive.
b) Ministers cannot be judges.
4. Criticisms of the Ministers against the Judiciary.
