Constitutional & Administrative Exam Question Prep The quote stated by S.A.

de Smith can be used as a starting base to assess the theory separation of powers. They theory coined by philosopher Baron Montesquieu states the separation of powers will protect against the concentration of government power. In order to protect from such concentration of power the legislative, executive and judicial institutions must function completely separate from one another. It is difficult to assess this theory in the UK as there is no written constitution and therefore no strict separation of powers exists. The concern for the law student is not to review the structure of the separation of powers, but rather observe if such theory can work in the British Government system. To assess this theory one must consider the several aspects of the institutions including their functions individually and the overlap they share with one another. It is through such overlaps one can understand that complete separation of powers cannot exist without the co-function between each institution. The theory of separation of powers is difficult to set in perspective even in theoretical terms as a system of checks and balances exists in the UK and other nations. Each separate institution in government does not function without some form of relation with another. One could consider the relation between the executive and judiciary as example. The Lord Chancellor is a prime example as he was a member of cabinet and former head of judiciary. He was also the speaker of House of Lords which gave him a prime legislative role. As result of the various roles he had within the different institutions, some criticized whether the UK represented a complete separation of powers. His role was seen as incompatible with judiciary and therefore under the Constitution Reform Act 2005 his role was limited. His role within the judicatory was removed and taken over by Lord Chief Justice. As well, he remained cabinet minister with the executive function, but his role as judge was removed. Furthermore, a Department of Constitutional Affairs was founded with the Secretary of State as the head. The limits set on the role of Lord Chancellor can demonstrate the British constitution does maintain a separation of powers to some extent. One can also observe the relation between the judiciary and legislation, specifically to judicial independence. As result of the provisions of the Constitutional Reform Act 2005, judges can be appointed by judicial appointing commissioners and not ministers. Prior to the reform act judges could sit in the House of Lords and second chambers, however with the provisions in force judges can no longer sit in the legislative. Judicial independence is also secured by the Act of Settlement 1700 which provides protection to inferior judges against dismissal from the executive. Judges can be seen to have a separate role by the provisions of acts; however they must also comply with legislation. Courts can review if an act conforms to the law, however they do not obtain power to review the validity of legislation or make amendments. Under the Human Rights Acts 1998 courts can state an act of Parliament is not in compliance with a convention,

however they cannot refuse to apply the act. Judicial independence is an aspect that assists to preserve the three separate functions with harmonization with each other. The rule of law in coordination with the independence judicatory makes the UK constitution function in the manner it does. The rule of law ensures every act of government is justified by the law and that no one is above the law. The independent judicatory ensures the rule of law works with current legislations. For instance, courts will interpret and apply the Human Rights Act 1998 to ensure individual fundamental rights and liberties are protected. After assessing the main features of the British government system one may conclude that although the British constitution is unwritten, it still maintains to some degree a separation of powers. Each institution relies upon the other in some manner to maintain its function individually and as a whole. There is a system of checks and balances between the institutions which make the British system function in accordance.
relationship between (and the dominance of) the executive vis a vis legislature. This needs to be thoroughly explored. You need to mention judicial review, the law making powers of courts and ministers, the executive deciding disputes (eg planning-zoning-appeals) and the courts role in relation to Acts of Parliament that violate EU law.