Separation of Power

This essay will explore separation of power as a constitutional

principle….
Bradley and Ewing: ‘Complete sop is power neither in theory
nor in practice’
The doctrine of sop is a legal principle or theory (organizational
structure) or concerning the division of responsibilities among
different bodies of the state, executive, judiciary and legislation.
SOP in effect refers to each of these branches of state
functioning independently and without intervention from the
other. The idea behind this is the effective operation of the state
and performance of duties for which they are designed….
coherence in respect to duties of each state…provide check and
balance…prevent abuse of power... “in separating powers, the
major aim is to prevent tyranny and safeguard liberty by
ensuring that no Andrew Wroe, ‘Separation of Powers’ in Paul
Barry Clarke and Joe Foweraker (eds.), Encyclopedia of
Democratic Thought one can accumulate despotic powers.”
although they must coexist in harmony but each party must
complete its own functions. SOP holds that Parliament…most
supreme…Parliament and govt are considered as one unit –
Judiciary is independent- CRA 2005
 Before Constitutional Reform Act: Lord Chancellor held
position in all 3 branches of govt (speaker of HOL, head of
judiciary, senior cabinet minister)
After CRA: 3rd april 2006 no longer speaker of HOL, removed
from judicial office (as judge), now duties related to functioning
of judiciary were shared b/w him (establishment of judicial
commission) and lord CJ (now called head of judiciary). Still
senior cabinet minister and the role is now combined with that
of secretary of state for justice.
(lord chancellor = leading cabinet member, head of judiciary,
appointed by queen on advice of pm)
CRA was a statutory act: promoted the idea of SOP in the UK,
provided for the implementation of changes in 3 aspects,
modified role of LC,

Other changes include introduction of independent Supreme

Court with its own building and budget, prohibiting of govt
officers to intervene or try to influence decisions of govt.
The theory of SOP was initially devised in the most coherent
way by The French Jurist Montesquieu in his book L. Esprit Des
Lois (Spirit of Laws) published in 1748, for the first time
proposed the principle of separation of powers.
A further related aim is to ensure that laws are made in the interests of all by giving the law-making
power to the people’s representatives in parliament. Another is to ensure the *accountability of
government. For example, the legislature is accountable to the people for the laws it makes and the
executive to the people and/or the legislature for the execution of those laws. A final aim is to ensure that
government operates effectively and efficiently. The rationale is that different types of institution perform
different functions better than others. For example, it is often argued that putting laws into effect requires
a strong, unified hand. Thus, a legislature composed of many individuals with many ideas representing
many interests could not effectively execute the laws; a chief executive or president best performs the
task. Andrew wroe.
Montesquieu had his greatest influence on the founding fathers of the US, and in particular on
James Madison. Madison famously noted in The Federalist No. 47 that ‘the accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny’.

William Blackstone, writing at the end of the eighteenth century, analysed and described the mixed
constitution more succinctly than Montesquieu. He argued that the English system was different from
others. It was not a democracy, aristocracy, or monarchy; it was, rather, a mix of all three. For
Blackstone, democracies are virtuous and thus best in determining what the end shall be; aristocracies are
wise and thus best at determining the means to reach the end; and monarchies are powerful and thus best
at executing the means. In combining the three in separate institutions (the Commons, Lords, and Crown
respectively).

the separation of powers refers to Montequieu’s version of the

three main institutions of state, though this is often complicated
by different layers of authority

Additionally, Parliament may delegate law-making powers to

the Government through powers to draft secondary or delegated
legislation. This can liberate Parliament from the need to
scrutinise small technical details, while maintaining the
safeguard of Parliamentary approval

Before the Constitutional Reform Act 2005 judicial appointments were made on the recommendation of
the Lord Chancellor who was a Government Minister. The legislation established an independent Judicial
Appointments Commission for England and Wales. Judges are represented on the Commission, but do
not hold a majority and the Commission has to have a lay Chair. The Commission recommends
candidates to the Lord Chancellor, who has a very limited power of veto. The Act gives the Commission a
specific statutory duty to “encourage diversity in the range of persons available for selection for
appointments”.39 Separate procedures apply to the appointment of Supreme Court judges, which take
account of the fact that the Court has a UK wide remit.4