Chapter 5 Answer guidance

The Separation of Powers

What are the different functions of the three main powers of the state?

The three powers of the state are the same ones that you read about in Chapter 2: the legislature, the executive, and the judiciary.
Which of these powers is concerned with making, amending and repealing legislation? Is that all that this power does or does it have any other functions (for example, relating to the work of the executive)?
What power of state is concerned with the day-to-day running of the country?
The function of the judiciary might be more obvious, especially if you are thinking about the private law role of the courts in determining disputes between individuals and companies. Can you remember what the public law role of the judiciary is? Hint: can you remember what ‘administrative’ law refers to?
To review the functions of the three powers of state, go to section 5.1.1.

What is the essence of the doctrine of the separation of powers?

Not everyone agrees on how separate the powers should be, so concentrate here on what the purpose of a separation of powers might be.
It might help to think about the risks if there was no separation of powers. What might be the risk if the power to make legislation, implement the law, and to interpret the law or call people to account for the legality of their actions were held by the same people or the same body?
Have another look at the start of the chapter if you are still unsure how to explain the separation of powers.

What are the main similarities and differences in key theorists’ views on the separation of powers?

Do all theorists agree about how separate the powers should be? Think about what it means to have a complete or a partial separation of powers.
Is it always agreed that the separation of powers is capable of preventing abuse of power? If not, think about what other positions have been adopted (for example, by Jennings, explained on in section 5.3).
What do you understand by the terms ‘partial separation’ and ‘fused power’?
It is sometimes claimed that overlaps in power lead to inefficiency in government. What is meant by this and do all theorists agree? See Barber’s explanations in section 5.3.
Do commentators agree or disagree about the need for an independent judiciary?
To review the similarities and differences in key theorists’ views in more detail, see section 5.4.

How would you explain the separation of powers in a UK context?

Think back to what you know about the role and membership of the powers of state in the UK.
Are there any overlaps between the powers in the UK? For example, is the executive only concerned with running the country or does it also have a role in the making of legislation?
Have members of the judiciary participated in the legislative process? Do they still participate in the legislative process? Hint: think about the Constitutional Reform Act 2005.
What do you know about the role of the Lord Chancellor and how it has changed?
For more examples, see section 5.5.

How have the courts applied the separation of powers and what does this indicate about the operation of the separation of powers in the UK?

Is it clear that the courts restrict themselves to interpreting the law?
How do the courts treat parliamentary privilege and to what extent have the courts respected parliamentary sovereignty?
How does judicial review bolster the separation of powers in the UK? Hint: what decisions or actions are the courts reviewing?
Think about the limits of judicial review and whether the judiciary can replace the executive’s decision with its own if it considered that a better decision could be reached.
To what extent do human rights cases change the way that the courts review the decisions or actions of the executive and does this have any impact on the separation of powers?
Review the summary points in section 5.6 if you need to jog your memory.

To what extent could it be argued that the Constitutional Reform Act 2005 has tipped the British constitution close to the traditional conception of the separation of powers, and farther away from that of a balanced constitution with checks and balances?

Try to recall the main changes made by the Constitutional Reform Act 2005.
How did the Act reform the office of the Lord Chancellor?
Identify the provisions of the Act that relate to the independence of the judiciary and think about why this is important for a separation of powers.
How did establishing the Supreme Court change the separation of powers in the UK? Think about where the Appellate Committee of the House of Lords (the body the Supreme Court replaced) carried out its work.
How did the Act change the system of judicial appointments?
Do you think that these or other changes brought in by the Constitutional Reform Act 2005 increased the separation of powers in the UK? Has this therefore tipped the British constitution closer to the traditional conception of the separation of powers?

To what extent do the Miller cases act as useful lens through which to view the relationship between the legislature and the executive?

In essence this is a question that encapsulates the separation of powers, parliamentary supremacy, the rule of law, and dualism in the context of international and domestic law, so it is a great question to address how all of those fit together.
The Miller cases are complex and have been reported to be about a whole number of things in the press that they were not about e.g. an attempt to stop Brexit. They were, though, cases that sought to determine which institution of the state – which power – has the right to make fundamental decisions that give rise to legal consequences within the UK and to ensure that the correct institution was the decision-maker to ensure that the rule of law was followed.
The Miller cases make it clear that the doctrine of Parliamentary supremacy requires that if rights and obligations are affected within the UK then it is Parliament and not the executive that has the legal power to determine what happens. Parliament was the institution of the state that had to trigger Brexit by enacting legislation to permit this.
You may want to refresh your memory of the status of the UK referendum to determine whether the electorate wanted to remain or leave the EU. The referendum was advisory rather than legally binding and so it could not trigger the UK leaving the EU.
You may also want to consider dualism and the distinction between international law (treaty obligations) and domestic law, as well as the distinctions between legislation (enacted by Parliament) and the Royal prerogative exercise via the executive.