separation of powers Flashcards
(10 cards)
sop definition and authority and purpose
separation of powers is the formal division of powers between the legislative, executive, and the judiciary so no division can concentrate unchecked power (Montesquieu, The Spirit of Laws)
prevent tyranny uphold liberty promote checks and balances
sop intro
definition, purpose, uk context fusion, dicey v barendt and allan, thesis(accountability, rights protection, fairness), sturcture
- Definition: SOP = division of power between legislature, executive, and judiciary, so no branch can concentrate unchecked power (Montesquieu, The Spirit of the Laws, 1748).
- Purpose: Prevent tyranny, uphold liberty, ensure institutional checks and balances.
- UK context: Uncodified constitution, parliamentary sovereignty → fusion of powers (especially Leg–Exec).
- While Dicey’s formulation of sovereignty emphasized a clear separation of institutions, modern scholars like Barendt and Allan argue that the principle must be understood functionally in the UK, where institutional overlap reflects democratic practice rather than constitutional failure.
- Thesis: UK does not reflect a pure SOP model, but the doctrine remains important as a guiding principle in structuring government, limiting overreach, and protecting judicial independence.
- Structure: 1. Historical foundations → 2–4. Institutional analysis (Leg–Exec, Exec–Judic, Leg–Judic) → 5. Future and comparisons → 6. Conclusion.
Why SOP was created
Montesquieu(liberty) - Barendt(prevent arbitrary) - Barber(no need full because efficiency) - bagehot (fusion is efficiency no sop)
- Montesquieu (classical liberty): Saw SOP as essential to liberty; admired what he (wrongly) believed was SOP in English constitution.
- Barendt(legal control of arbitrary power): SOP’s role = prevent arbitrary government, ensure legal accountability.
- Barber(UK doesn’t need full SOP because of practicality): In UK, SOP is more about efficiency than liberty — total separation would cause deadlock.
- Bagehot (UK doesn’t need full SOP because of political accountability): Critiqued SOP in UK context — called fusion the UK’s “efficient secret” that ensures political stability.
sop leg-ex overview
clear fusion - ministers from parliament - timetable whip majoritarian - excutive orreach- party discipline no independnence - select committees house of lords pmqs - check work - barber says till fusion is good - hence fison but functional accountability is imp as a feature of sop
sop leg-ex
🔹 2. Legislature & Executive: Fusion, But With Checks
Where SOP fails:
- Ministers (PM, Cabinet) drawn from Parliament → personnel overlap.
- Executive controls parliamentary timetable, whip system, and benefits from majority dominance.
Where it’s undemocratic:
- This fusion = strong government, but risks executive overreach.
- Whips and party discipline mean Parliament often fails to act independently.
Where SOP partially applies:
- PMQs, select committees, and House of Lords → function as checks, not separation.
Where it works for democracy:
- Accountability through scrutiny mechanisms — reflects a pragmatic SOP adapted to democracy.
- “Barber argues that this fusion is a feature, not a flaw, of the UK’s system—it enhances governmental efficiency while ensuring accountability through political processes like select committees and PMQs.”
✅ Takeaway: Clear fusion, but SOP still matters via functional accountability. Important for limiting executive dominance within Parliament.
sop jud-leg overview
sop (parliamentary sovereignty, house of commons disqualification act, duport steels v sir) ,
no sop (quasi legislative lord bingham, read in ghaidan, allan and craig collaboarative)
democratic(communication and accountability, balance doesnt override, minority rights, rol)
undemocratic (judges are unelected)
sop leg-jud
🔹 3. Legislature & Judiciary: Formal Separation, Functional Overlap
Where SOP exists:
- Parliament is sovereign → courts can’t strike down Acts.
- House of Commons (Disqualification) Act 1975: disqualifies judges/civil servants from sitting as MPs — creates some institutional separation.
- In Duport Steels v Sirs “must not usurp the function of Parliament.” This sits uneasily with modern interpretive practices under the HRA.
Where SOP is blurred:
- Courts have a quasi-legislative role via interpretation, esp. post-HRA 1998 s.3.
- 📝 Lord Bingham: Judges do not create law outright but “develop it in the interstices”.
- Can “read in” or reinterpret laws to align with rights.
- Ghaidan v Godin-Mendoza [2004] – “Spouse” reinterpreted under HRA to include same-sex couples.
- Allan and Craig similarly support a balanced shift towards a more collaborative, dialogic model of constitutional governance.
Where it’s democratic:
- Protects minority rights and ensures laws comply with rights obligations.
- Judicial interpretation increases legal flexibility without overriding Parliament.
Where it’s undemocratic:
- Judges are unelected, but may be seen as shaping policy.
✅ Takeaway: SOP is formal here, but influence flows both ways. Interpretation under the HRA shows how judicial influence supports democratic values through rights protection.
sop ex-jud overview
MOST VISIBLE HERE
1. cra 2005 supreme court and changed role of lord chancellor not olitical and judicial anymore
2. judicial check increase via review and hra
- judicial independence (r v evans, baroness carr)
- rights and rol
— - ag still same
- courts avoid high policy (GCHQ)
— - executive can resist implementaiton due to soveriegnty
- political backlash evans
sop ex-jud
🔹 4. Executive & Judiciary: Increasing Separation, Politically Sensitive
Where SOP is achieved:
- Constitutional Reform Act 2005: Created UK Supreme Court — removed judges from HoL & Reformed Lord Chancellor role (no longer judge + minister + speaker).
- Judiciary acts as a check on executive power (especially via judicial review and HRA 1998).
Where it helps democracy:
- Strengthened judicial independence.
- R (Evans) v AG [2015] → The Court blocked the executive from overriding a judicial decision — rare and powerful example→ You can argue that post-CRA, courts are more confident in checking executive discretion, even at the cost of political backlash.
- “The independent judiciary — the cornerstone of the rule of law — is an integral part of what the UK offers the world.” — Baroness Carr, 2024 recently
- Enhances rule of law, protects fundamental rights.
Where SOP is still weak:
- Attorney General: remains legal adviser and political actor — tension between independence and influence.
- Courts avoid “high policy” areas (e.g. GCHQ case on national security).
Where it’s problematic:
- Executive can still resist implementation of judgments as parliament still has last word (e.g. political backlash post-Evans case).
✅ Takeaway: This is where SOP is most visible and most essential in modern UK — ensures legality, protects rights
sop conclusion
🔹 CONCLUSION
- The UK constitution does not follow a strict SOP, but the doctrine remains crucially important for maintaining balance and accountability.
- Leg–Exec relationship shows clear fusion, but scrutiny mechanisms matter.
- Exec–Judiciary interaction demonstrates how SOP protects legality and rights.
- Judiciary–Legislature overlap reveals judicial creativity, yet democratically justified via human rights obligations.
- UK model is evolving → flexible, uncodified, but reforms (CRA 2005, UKSC) show trend toward greater separation.
- Comparative systems - like USA & French now but still different
- The UK’s approach is pragmatic, evolving, and responsive—not rigidly separated, but deeply influenced by the spirit of SOP.
- In a time of rising executive dominance and democratic fragility, SOP acts as a constitutional compass—guiding reform, empowering the judiciary, and ensuring governance remains rooted in legality, liberty, and accountability.
- Kavanagh encapsulates this best: ‘The UK constitution is no longer a one-voice, monolithic system, but a dialogic, multi-institutional conversation.’ This functional separation—rather than a formal one—safeguards liberty in modern governance.
