2.1.2 Constitutional Institutions Lecture

The Separation of Powers

Public law regulates the relationship between the state and its organs, and private citizens.

The separation of powers enables the three main powers of the state to act as a check on the absolute exercise of power. These powers are divided between three principle branches of government: the legislative branch; the judicial branch; and the executive branch. Modern democracies tend to exist as a partial conception of the separation of powers. Constructive breaches of the strict separation can contribute to preventing tyranny; whereas destructive breaches pose a threat to that goal.

The exact position of the doctrine within the UK constitution is unclear:

  • The doctrine may be part of the unwritten constitution of the UK (Hinds v The Queen [1977]).
  • There is a significant overlap in the work of the executive and the legislative branches, with the executive exerting a substantial influence over the work of Parliament. This threatens the separation of powers doctrine (Bagehot, The English Constitution, 1867).
  • Opinions vary on how best to achieve the balance between separation and cooperation.

The Institutions; the Executive

The executive branch of the UK is comprised of the Head of State, the Prime Minister, the Cabinet, Secretaries of State, ministers of the Crown, departments of state, other public bodies, devolved administrative bodies, local authorities, the police and the military.

The executive has a vast array of statutory powers afforded to it by Parliament.

The Institutions; Parliament (the Legislature)

Parliament is responsible for the creation of new legislation, the scrutiny of bills and holding the executive to account. It is comprised of the House of Commons and the House of Lords. Local voters in general elections elect members of Parliament within the House of Commons. The monarch is formally the head of Parliament.

The House of Lords and the House of Commons perform distinct functions in relation to the creation of legislation under what is known as the bicameral system. The former acts as a check on the abuse of power by the executive and can delay legislation that the House of Commons have proposed.

The Institutions; the Judiciary

The Judiciary primarily adjudicates on legal disputes. The primary sources of law in the UK are legislation or Acts of Parliament and the common law. The judges' role is in the interpretation of legislation and in the development of the common law. Judicial independence is of primary importance.

One primary role of the judiciary is in holding the executive to account by introducing judicial review, and accountability for the illegal, irrational or procedurally improper performance of public functions.

The Human Rights Act 1998 gives effect to ECHR in UK law.

The European Union

Despite the question over the UK’s membership, the EU is still of considerable relevance in UK law and governance. The European Union as exists today was established in 1992 and established the foundations of the economic and monetary union. The EU includes:

  • The European Council, which has no legislative function but is to ‘define the general directions and priorities of the [EU]’ (Art 15(1)(TEU)).
  • The Council of the EU which considers legislation initiated by the Commission.
  • The Commission carries out both executive and legislative functions.
  • The Parliament consisting of directly elected citizens of Member States.
  • The Court of Justice of the European Union.

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