The Separation Of Powers In The United Kingdom

The separation of powers, together with the rule of law and parliamentary sovereignty is considered to be one of the most important and fundamental doctrines of the constitution of the United Kingdom. The separation of powers is a doctrine often described as the trias politica principle and it involves the allocation of powers to the three branches, namely the legislature, the executive and the judiciary and how the function between them. In this essay I have to explain and critically analyse the doctrine of the separation of powers as it applies to the UK Constitution.

Historically, the separation of powers is traced back in the ancient Greece from Aristotle in his work Politics where in order to prevent absolutism, he introduced the three

It involves the administration of justice through the courts and the interpretation and application of the law enacted by the parliament as well as responsible for the proper function of the rule of law, that the executive acts within the framework of the law with the assistance of the Judicial Review. Blackstone observed that justice can not be administered if the judiciary is not separated in some form from the other two powers. Prior to the Constitutional Reform Act 2005 the appointment of the judges was performed by the Queen. What is more, the judiciary was subject to the socio-economic and educational background, that is, middle aged white male, from a middle or upper class background with Oxford or Cambridge education. After the 2005 Act, the selection of the judges is subject to the Judicial Appointments Commissions. The tenure of the judges was due to a good behaviour under Act of Settlement 1700. More recently, the Supreme Court Act established that a person holds office during a good behaviour removable only by the Queen. Now, the 2005 Act established the Judicial Complaints Office where the Lord Chief Justice and the Lord Chancellor can mention an issue to the office. In addition, judges are disqualified from membership to the House of Commons, however, not appointment to the Bench. Also, they enjoy immunity from legal consequences. As “Lord Denning

Some believe that the separation of powers is essential for the rule of law and others that a pure separation would be inefficient. E.G Henderson[ Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century ( Cambridge, MA:Harvard University Press, 1962), p. 5] wrote that the separation of this threefold division is a necessary condition for the rule of law in modern society and therefore for democratic government itself. Berent[ An Introduction to Constitutional Law ( Oxford: Oxford Uniiversity Press, 1998), p. 129], shared Hamilton's view and stressed upon the fact that although the judiciary is weak and do not enjoy wide legislative powers, there is no liberty if it is not separated from the other two branches. Barber[ Prelude to the separation of powers (2001) 60(1) Cambridge Law Journal 59,59-64] on the other hand, stated that partial separation would be more efficient due to checks and balances within the constitution. No institution has absolute power. He argued that overlap of power may lead to efficient government and the contrary would reduce efficiency and creativity. Many theorists believe in an independent judiciary as it ensures Article 6 of the ECHR. However, the separation of the legislature and the executive is more controversial. John Lock[ Two treatises of Government (1689)],