NL0602

FINAL COURSEWORK

SHRIA GUPTA

2378008

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Table of Contents
Introduction:.............................................................................3
Powers and Functions:...............................................................4
Judicial:..........................................................................................4
Executive and Legislature:...............................................................4
Strengths and Weaknesses of Separation of Power:....................5
Strengths:......................................................................................5
Weaknesses:...................................................................................5
The current challenges facing the UK in maintaining an effective
separation of.............................................................................5
References and Bibliography......................................................7

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Introduction:
“Separation of Powers” points out the idea that the most utmost institutions of a
specific country/state should be able to function independently; and that no person
has enough power to disobey the law. It can be labelled as a doctrine that gives us a
set of rules and regulations for how the state should be governed smoothly. These
intuitions are separated into three sections- The Executive, The Judiciary and The
Legislature. All these institutions have the responsibility to safeguard the liberties and
protect against despotism. As indicated by a precise elucidation of the separation of
powers, neither one of these three branches have the right to use the power of the
other, nor should any individual be a part of the other institutions. As a solution, each
one of these branches must ensure to create a fair and just system of exercising
their power. One of the earliest and most descriptive statements based on separation
of powers was stated by Montesquieu in 1748: When the same person or the same
legal body oversees both executive and legislative powers, there is a little to no
chance of freedom because if the ability of judging is not differentiated from the
legislative and executive powers, it would cause an end to the whole system, hence
causing a blunder. He also expressed that if there was only one legislative power to
exist, then the power being held over the freedom of the citizens of the UK would be
tyrannical. If there was a situation with one combined executive power, then the
judges would also hold the power of an oppressor. He also highlighted this statement
by referring to France’s government, and its insufficiency to follow the rule of
separating powers which eventually leads to major compromise in freedom1 This

1
Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748).

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essay targets to analyse the concept of ‘Separation of Powers’ while also critically
illustrating the strengths and weaknesses of this doctrine. In the UK, the rights and
powers of the government, courts and the Parliament are nearly entwined. Moreover,
the executive and the legislative powers are interpreted as a “close union”. Walter
Bagehot also contemplated this as “The effective secret of the English constitution”. 2

Powers and Functions:

Judicial: The judiciary makes the decision of whether the laws are being followed by
everyone and if they have been drafted with a just and fair thought. The judicial audit
exercises along with the executive to make sure that any entrusted legislation is
compatible with the with the power permitted by the Parliament and to guarantee the
legality of the actions of the government and other public authorities.3 This whole
process makes it essential for the judge to be independent of the influence of the
Parliament and the government. Traditionally, judges have always practiced
“respectfulness” in the specific areas of power that they self-regard as qualified to
judge. In the UK, judges are forbidden from participating in elections as a candidate
to the Parliament under the House of Commons Act, 1975. Under the constitution,
judges are junior to the Parliament, and they do not have the right to question if the
Acts of Parliament are valid or not.4

Executive and Legislature: The legislature in charge of making the laws, whereas
the executive is in control of creating various policies and establishing the laws into
effect. The UK’s unification of legislature and executive have the responsibility to
deliver steadiness and effectiveness in the government’s rules and regulations.5 For
instance, the Prime Minister is often the person in charge of the executive and the
head of the majority party in the legislature branch. This as a result, provides the
executive institution with a lot more liberty of action in comparison to the President.

2
Bagehot, The English Constitution, 1867, p 67–68
3
Judiciary of England and Wales, ‘Judicial review’, http://www.judiciary.gov.uk/you-and-
the-judiciary/judicial-review
4
Pickin v British Railways Board [1974] AC 765
5
Ronald J Krotoszynski, ‘The separation of legislative and executive powers’ in Tom
Ginsburg, RosalindDixon (eds) Comparative Constitutional Law, Cheltenham: Edward
Elgar, 2011, p 248

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Strengths and Weaknesses of Separation of Power:
Strengths:
The separation of power guarantees that no abuse of power is being practiced
among the three branches. It also ensures that the three separate institutions are
unable to barge into one another which results in the prevention of dictatorship
between the various functions that are being exercised. It also provides the
potentiality for each branch to function with freedom and provide adequate balance
for each other to avert one from becoming supreme and misuse their powers.

Weaknesses:
Simultaneously, there are also downsides to the doctrine of separation of power. One
of the most crucial ones being that the power is mainly concentrated in the Executive
branch of the government. The executive branch has transcended its authorised
legal duty in the government. They have the ability to announce a war without having
to seek permission from the Parliament, as the Executive branch practices
unjustifiable influence over the Parliament.

Nonetheless, it must be noted that Montesquieu laid out his outline of the separation
of powers in the British constitution. According to his framework, the government
must only be divided into three sections i.e. the Legislation, the Executive and the
Judicial. The ideology that was put behind this doctrine of separation of powers was
to ensure that the government must not abuse their power by interfering with more
than one branch. Additionally, stringent separation of powers was not practiced in the
British Constitution especially with the Executive and the Legislative being directly
associated with the Parliament.6

The current challenges facing the UK in maintaining an

effective separation of powers:

First and foremost, the most significant challenge faced by the UK in recent years is
the overlap of the position of Lord Chancellor. This specific authority has been
continuously known to bear the perspective of no separation of powers in the UK. In

6
'The Separation of Powers' (Lawteacher.net, December 2024)
<https://www.lawteacher.net/free-law-essays/constitutional-law/why-a-separation-of-
powers-is-important-constitutional-law-essay.php?vref=1> accessed 2 December 2024

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the past, the authority of Lord Chancellor was very typical as he was associated with
all three branches of the government and practiced all three distinguished structures
of power. He used to attend as a speaker in the House of Lords, which is a
legislative branch, oversaw the judicial branch and served as a senior cabinet
minister which happens to be a part of the executive branch. Shortly after the
Humans Right Act 1998, the Government declared multiple changes in the authority
of Lord Chancellor in the United Kingdom. In the case of McGonnell v UK (2000),
the European Court of Human Rights announced that the connection between The
Royal Court Bailiff of Guernsey and his legislative and executive duties was closer
than the required limit. As an outcome of this, they did not have any liberty to
function freely. This had a significant effect on the Lord Chancellor’s duties as he
executed very indistinguishable functions in the UK as well. After this incident, the
Government executed the Constitutional Reform Act 2005. It indicated that the Lord
Chancellor was replaced as the head of the judiciary branch. As a result of this he
could appoint a judge only through a counsel given by a Judicial Appointments
Commission. This specific amendment was the cause of one the most crucial
challenges for the UK in present years.7 To conclude the constitution of the UK
majorly benefits from the merits that the doctrine offers. For instance, the conception
of balances and checks permits the other branches of the government to balance the
workload of other branches although being self-dependant and working separately to
achieve satisfactory results.8

7
'The Separation of Powers Essay' (Lawteacher.net, December 2024)
<https://www.lawteacher.net/free-law-essays/constitutional-law/separation-of-
powersessay.php?vref=1> accessed 2 December 2024
8
Mark Elliot and Robert Thomas, Public Law (4th edn, OUP 2020) 109.

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References and Bibliography
Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748).
Bagehot, The English Constitution, 1867, p 67–68
Judiciary of England and Wales, ‘Judicial review’, http://www.judiciary.gov.uk/you-and-
the-judiciary/judicial-review
Pickin v British Railways Board [1974] AC 765
Ronald J Krotoszynski, ‘The separation of legislative and executive powers’ in Tom
Ginsburg, RosalindDixon (eds) Comparative Constitutional Law, Cheltenham: Edward
Elgar, 2011, p 248
'The Separation of Powers' (Lawteacher.net, December 2024)
<https://www.lawteacher.net/free-law-essays/constitutional-law/why-a-separation-of-
powers-is-important-constitutional-law-essay.php?vref=1> accessed 2 December 2024
'The Separation of Powers Essay' (Lawteacher.net, December 2024)
<https://www.lawteacher.net/free-law-essays/constitutional-law/separation-of-
powersessay.php?vref=1> accessed 2 December 2024
Mark Elliot and Robert Thomas, Public Law (4th edn, OUP 2020) 109.