Separation of Powers

The relationship of the three organs of the state, legislative, executive and the judiciary.
Executive Policy makers and they implement the law, in the UK this is essentially the
Government.
Legislative The legislative represent the people and make laws, in the UK this is Parliament.
Judiciary It is the judiciaries job to interpret legislation and settle disputes. The UK's judiciary are
the courts.
This can be traced back as far as Aristotle, who identified three different branches of the state and
realised a state would be well organised if they were kept separate and distinct.
Baron Montesquieu who wrote definitively about the doctrine in his book, The spirit of the law.
He wrote the following;
When the legislative and executive powers are united in the same person or in the same
body of Magistrates there can be no liberty. Again, there can be no liberty if the power of judging is
not separated from the legislative and the executive. If it were joined with the legislative, the life
and liberty of the subject would be subject to arbitrary control, for the judge would then be the
legislator. If it were joined to the executive power, the judge might behave with violence and
oppression. There would be an end to everything if the same man or the same body, whether of the
nobles or of the people were to exercise those three powers. That of enacting laws, that of executing
public affairs and that of trying the individual.
This sums up quite well some of the fears or concerns when power is concentrated into the hands of
too few people. This is one of the features of a tyrannical government. So this acts as a safeguard.
Professor Vile also gave a definition, which he dubbed as the pure theory.
'It is essential for the establishment and the maintenance of political liberty that the government be
divided into three branches, the executive, legislative and the judiciary. Each branch of government
must be confined to the exercise of its own function and not allowed to encroach upon the functions
of other branches.'
Both prescriptive and descriptive and provide the ends and means. The prescription of political
liberty provides the end, and the description of the separation into the threefold division of state the
means.
Material Theory Dependant on a formal definition, and fits the three branches into that definition.
Jennings concluded that there is no material distinction between legislative and executive functions,
especially when you consider the law making powers of judges. In fact he finds no material
difference between the three powers.
Formal Theory Deduces functions from what institutions, identified by their methods and
composition, not their function, currently do.

Professor Barendt stated that separation of powers as a prescriptive theory is not necessarily
dependent on being able to make a hard and fast distinction between the three branches. The
essence of the doctrine is to ensure a dispersal of power and the prevention of of governmental
power, so long as powers are allocated between different constitutional bodies to achieve this
balance it doesn't matter.
The objection to this approach, which relies largely if not exclusively on the balance of power idea
to compensate for a clear theory of separation of function, is that it attempts to save separation of
powers theory at the expense of stripping it of what defines it as a distinct political doctrine.
Locke suggested there are only two powers, the legislative and the executive. He accepted
legislative supremacy by stating 'There can be but one supreme power, which is the legislative, to
which the rest are and must be subordinate, For what gives laws to another must be superior to him.
This also seems to be supported in Montesqueiue's theory, though he separated the executive and
the legislative.
Professor Vile also claimed that Dicey supported this theory,
'The whole burden of The Law of The Constitution, was that the making of the law and the
application of the law were distinct from one another, and those who carry out the law must be
subordinate to those who made it. '
Kelsen also supports this theory, 'It is the difference between creation and application of law that
expresses itself in the distinction between the powers of the state.'
So Locke and Kelsen fail to make a distinction between the judiciary and the executive, 'if we speak
of execution, we must ask what has been executed, the execution of laws is the job of the so called
judiciary. This power is not distinguishable from the so called executive power, in this respect the
function of both is pretty much the same.'
However, this cannot be true, as our executive sit inside the legislative, and propose legislation to
Parliament, while making up a great deal of P, so if this view was true and the executive and the
judiciary were so closely linked as well as the existing relationship between the executive and the
legislative. The power would be held by the same people, and the entire reason for separation of
powers is defunct.
Richard White argues that the separation of powers is a synthesis of a number of different ideas,
which are not compatible and need to be supplemented by a theory of law.
Sir William Blackstone in his 'Commentaries on the laws of England'
He stated it wasn't possible for an absolute separation of powers within the UK constitution, and
further, it wasn't desirable either.
He said this mainly due to the doctrine of Parliamentary Supremacy. If there was a strict separation
of Powers and the legislative (Parliament) were on its own. It would simply be too powerful, as P is
sovereign, and according to the orthodox theory of PS, it has no restrictions on its law making
ability, it would simply have too much power. Therefore, we need the other branches to overlap
with the legislative, in order to make sure it is not too dominant.
He preferred a diluted version of Separation of Powers, with a comprehensive system of checks and
balances.

An example of this cross over is the legislative and the executive. As the executive Government
sits inside the legislative Parliament. Bagehot admired this cross over in the UK and called it the
'efficient secret of the UK constitution.' ----- Is this a good thing?
In the absence of a written constitution, it isn't set out, so it is debated as to how much the UK
complies with the doctrine, or even if it tries to.
The constitutional Reform Act 2005, tried to address some of these concerns by redefining the role
of the Lord Chancellor and creating the Supreme Court, changing the name from the House of
Lords.
Does the UK adhere to separation of powers?
It definitely does not comply with the strict version, but is that a bad thing?
Does the UK have sufficient checks and balances in place to prevent abuses of power?